Ted Flemming, Mike Murphy question changes over powers to move judges

It's the accusation that dare not speak its name.

Two former attorneys general are dropping hints about what they believe is the real reason for the Gallant government's controversial bill to control where judges get to live and work.

• Chief Justice David Smith 'surprised' by Liberal bill to curb his powers
• PCs say new Liberal bill threatens the independence of judges

But neither of them will come out and say what they think it is.

During a legislative committee session last week, Progressive Conservative MLA Ted Flemming tossed out his theory while questioning Attorney General Serge Rousselle about Bill 21.

It will give Justice Minister Stephen Horsman a veto over the chief justice of the Court of Queen's Bench transferring his judges from one court to another.

"If I were a suspicious person, this smacks of somebody wanting to be a judge, and wanting to decide where they want to live," said Flemming, who was attorney general in the David Alward PC government.

We just don't want to see a continuation of having some regions be a revolving door for judges to get into the system, but then to quickly leave after.- Premier Brian Gallant

"It doesn't pass the smell test, depending on who is the premier of New Brunswick. We have a premier in name and we have a de facto premier, and depending on which is calling these shots, it just smacks."

The "de facto premier" label is how the PCs often refer to federal cabinet minister Dominic LeBlanc, Premier Brian Gallant's political mentor.

LeBlanc's wife Jolène Richard is a provincial court judge.

But in an interview, Flemming wouldn't say who he was referring to when he said "somebody" wanted to be a judge.

"Oh, look, I wouldn't go so far as to say that I have anyone in mind," he said, pointing out he framed his comments as hypothetical.

"I just said, 'If I was a suspicious person, I would think that.' But I'm not going to speculate one way or the other."

Judges are appointed to the Court of Queen's Bench by the federal government.

Consultation complaints

The bill would amend the Judicature Act, which lays out how the courts work in New Brunswick.

Since 2001, the act has given the chief justice of the Court of Queen's Bench the sole power to decide where judges on his court are based and where they live.

The Liberal amendment would change the law to require him to seek the "consent" of the provincial justice minister before moving a judge who is already on the bench.

The current chief justice, David Smith, has complained that the Liberals didn't consult him on an amendment that would curb his powers.

Smith said in a letter last month the change could "overstep the boundary and infringe upon judicial independence."

Former Liberal attorney general Mike Murphy said on Twitter the real motives for the bill are an open secret among lawyers.

"To be clear, there is NO ONE in the legal community that doesn't know who sent this legislation in to be passed and for what reason," he tweeted.

"I'm not completely in disagreement on the basis of the legislation but am surprised at the power of some not in [government] to do this."

Murphy also turned down a request for an interview about what he meant. Murphy lost the 2012 Liberal leadership to Gallant.

Amendments fixes problem: Gallant

Gallant said Friday the bill is aimed at reducing cases of judges being appointed to one court and then being moved to another, a problem that he says has been acute in areas, such as Saint John and northern New Brunswick.

"We just don't want to see a continuation of having some regions be a revolving door for judges to get into the system, but then to quickly leave after," he said.

Marc Richard, the executive director of the Law Society of New Brunswick, says the society hasn't heard of that being a problem.

"No, not on our side," he said.

"Never heard anything about it. If there was something, maybe [the government] knew something about it, but we're not aware of it."

Gallant also said the change ought not to interfere with how judges do their work.

"Judges, when they're appointed to a certain region, I would think expect to be working there for the remainder of their career, so I don't see that this would have much of a negative impact on anyone," he said.

Rousselle grilled on changes

Flemming also used last week's committee appearance by Rousselle to question the attorney general about another rule change on judges.

A cabinet order on Feb. 5 transferred responsibility for the Judicature Act from the attorney general to the minister of justice. That was the same day Horsman introduced the amendment in the legislature.

Flemming said it was "very peculiar" the two things happened the same day. "It strikes me there may have been a fair bit of scurrying going on that day."

He asked whether Rousselle had "refused to sign" cabinet documents on Bill 21, forcing Horsman to be put in charge of it instead.

Rousselle said the attorney general and the justice minister are not the same person, as they usually have been in the past.

With the justice minister in charge of administering the courts, it made sense for him to oversee a bill on where judges sit.

But Rousselle wouldn't say whether he agreed with the bill.

As attorney general, he said, he is the province's lead lawyer, and his legal advice to his client, the government, doesn't have to be made public.

Murphy used his Twitter account to predict Gallant and Rousselle will decide to kill the amendment before it passes.

"The Premier is a very educated lawyer with a masters in law," he wrote.

"It's my belief his pride in his own capability will ensure he stops it.

"Serge Rousselle while not justice minister is extremely well educated in law and a smart person. ... He won't allow this in the end either."