2 chief justices appear at odds over judge-moving bill

The province's two top judges sparred earlier this year over the timing of a meeting to discuss the controversial Bill 21, according to confidential letters obtained by CBC News.

Chief Justice Ernest Drapeau of the New Brunswick Court of Appeal cancelled a Feb. 29 meeting to discuss the legislation after Chief Justice David Smith of the Court of Queen's Bench said he would not take part.

Smith told Drapeau in a Feb. 26 letter he couldn't attend because he was out of the country "and a four-day notice period prevents adequate preparation for and personal attendance at this meeting."

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Later the same day, Drapeau wrote back that, "I deeply regret your decision to not participate in the meeting."

Drapeau's terse letter adds that even if Smith was away, participation was "an option that was available by way of telephone."

The rare glimpse at the private interactions of the two senior judges sheds more light on the debate over Bill 21.

Judicial disagreement

Drapeau and Smith appear to disagree about the bill, introduced by the Liberals on Feb. 5.

The bill will amend the Judicature Act to take away Smith's unilateral power to transfer Court of Queen's Bench justices and would let the justice minister veto any move.

Smith calls the bill a potential violation of the court's independence.

After failing to persuade the Liberal government to change the bill, he's now warning that he is looking at "further options." The bill is expected to pass the legislature next week.

The Liberals have said they consulted Drapeau about the bill and he approved it.

They also say Justice Judy Clendening was filling in for Smith on administrative issues while he was vacationing in Florida and she gave her approval to the bill the day before it was introduced.

Michael Bray, Smith's lawyer, disputes that interpretation of events.

Bray said Clendening told Smith that she got a call from a government official that didn't mention the coming bill and that she said the general idea of a veto would be "constitutionally suspect."

Drapeau has not spoken publicly about his view of bill and his office did not respond to an interview request on Thursday.

Drapeau, Smith and the chief justice of the provincial court, Pierre Arseneault, sit on a committee that discusses court administration issues with provincial officials.

Letters written 3 weeks after bill

The exchange of letters obtained by CBC News began three weeks after the bill was introduced, after it began to generate political controversy and after Smith went public with his objections.

Bray said Smith was only told about the bill "after the fact" of its introduction in the legislature on Feb. 5.

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Bray said Smith was still in Florida when Drapeau asked for the Feb. 29 meeting and didn't want to discuss the bill by conference call because on a previous conference call he'd been "frustrated because of the poor quality" of the call.

I see no useful purpose in going ahead, and the meeting is therefore cancelled.- Ernest Drapeau, chief justice New Brunswick Court of Appeal

"He felt this was important enough that he wanted a face-to-face meeting, either with a representative of his there, or when he returned," Bray said.

Smith said in his letter to Drapeau that he had asked Justice Fred Ferguson to attend on his behalf.

But Drapeau responded that given Smith's decision to not participate, "I see no useful purpose in going ahead and the meeting is therefore cancelled."

Smith wrote back Feb. 29, offering to meet Drapeau in Fredericton on March 14 or at a judicial event in Moncton on March 18.

Courts have different perspectives

Asked if the exchange between Drapeau and Smith was a sign of a healthy administration of the justice system, Bray said that, "I don't think anything that's happened on Bill 21 has been terribly healthy for the administration of justice."

Ann Whiteway-Brown, the president of the Canadian Bar Association's New Brunswick branch, said the apparent disagreement between the chief justices makes it "difficult" to fix the bill "because the two courts certainly have a different perspective on it."

She said she finds it odd the province consulted Drapeau on a bill that doesn't affect his court while not consulting Smith, whose court the bill does affect.

Justice Minister Denis Landry refused to comment on Thursday.