Higgs waffles on reversing veto power over judge transfers

Progressive Conservative Leader Blaine Higgs's caution about over-promising in the election campaign now extends even to Liberal legislation that his party has called an attack on judicial independence.

Higgs won't commit to repealing a controversial 2017 change to the Judicature Act that gave the provincial justice minister a veto over the transfer of Court of Queen's Bench judges.

"We haven't made any decision on it," Higgs said Tuesday. "I was against it when it first went in place.

"I would like to look at the impact it has had on judges and the movement and all of that. Ultimately, I don't think it should exist."

During the more than year-long debate over the legislation, PC MLAs excoriated the bill as an infringement on the courts and as a way for the Liberals to appoint or promote their friends to positions on the bench.

Higgs's own campaign material includes an Aug. 21 document that lists the Liberal legislation as one of many attacks by the Gallant government on accountability and transparency.

It says the amendments have created "unprecedented problems" in the court system.

Veto called 'mistake,' 'ill-conceived'

Before the change, Court of Queen's Bench Chief Justice David Smith had the sole power to transfer judges on his court from one place to another. Now he must seek the consent of the minister.

In 2016, when the first version of the bill was introduced, PC MLA Ted Flemming called it "a mistake" and predicted the Liberals would abandon it.

"I object it and I think it is something that is ill-conceived," he said. He predicted that when the Liberals "thought through" the issue, they'd stick with the status quo. But the Liberals eventually did pass the bill in the spring of 2017.

Flemming said in 2016 that the change would give a government the power to punish judges who ruled against it by denying them a requested transfer and "even the possibility of that being able to occur is wrong. It's not right."

But Higgs said Monday he would not commit to repealing the amendment without considering the implications.

"As with any bill, I am hesitant to just jump and repeal it," he said. "I want to look at what it's done, what are the issues, what are the restrictions, how do people feel about it today.

"I didn't understand why it was needed to begin with it, but if it didn't do what was hoped to be achieved, then we get rid of it."

Solving 'revolving door'?

Liberal campaign spokesperson Jonathan Tower said Higgs's response was "just another example where Higgs won't say what he would do as premier."

At the time the amendment was introduced, then-justice minister Stephen Horsman could not come up with a reason why he might veto one of Smith's transfers.

Smith himself criticized the bill as a potentially unconstitutional attack on his independence.

Eventually, the Liberals argued that Court of Queen's Bench judges, who are appointed federally, were being named to smaller communities in the province and then transferred to larger cities by Smith.

Premier Brian Gallant called it "a revolving door" for smaller courthouses. And then-Liberal MLA Donald Arseneault accused Smith of wanting to keep the transfer power so he could transfer a "friend," Justice Marie-Claude Blais, to Moncton.

Blais is a former PC MLA and former attorney-general who is now a Court of Queen's Bench judge in Saint John.

Smith asked Justice Minister Denis Landry to consent to a transfer of Blais earlier this year, but Landry did not consent.

At one point in the debate on the bill, PC MLA Kirk MacDonald said the Liberals wanted to block Smith's transfers so they could keep judicial posts in Moncton open for their friends.

He named Provincial Court Judge Jolène Richard, the spouse of Liberal MP Dominic LeBlanc, and her brother André Richard, a lawyer. Jolène Richard has since been appointed the chief judge of Provincial Court by Gallant.