Judge transfer request could reignite fight over judicial independence

The province's Liberal government could soon be facing another confrontation with Chief Justice David Smith of the Court of Queen's Bench.

Smith has asked for the justice minister's consent to transfer one of the judges serving on the court, a provincial spokesperson confirmed Monday.

The last time Smith made such a request, he waited 30 days for an answer and then made the transfer anyway — a possible breach of provincial law according to some interpretations, but a perfectly legal move according to Smith.

Justice and Public Safety spokeswoman Danielle Elliott confirmed Smith made a request Feb. 2 but did not say who he was seeking to move and to where.

"Chief Justice Smith has made one request to move another member of the judiciary," she said, adding Justice Minister Denis Landry "has taken it into consideration."

She said the province was "respectfully" refusing to say which judge was involved.

Trio of vacancies

There are now three vacancies on the Court of Queen's Bench: in Bathurst, Moncton and  Saint John.

Last fall, Smith transferred Justice Thomas Christie from Saint John to Fredericton before Landry could decide whether to consent.

One of Smith's fellow justices, George Rideout, said in a confidential letter to Smith the transfer breached the new section of the Judicature Act that says Smith must get the minister's consent. Rideout said Smith should quit.

Provincial officials have been more circumspect. Premier Brian Gallant said there were "concerns" about Smith's moves and officials were "looking into it," but there's been no challenge to the transfer.

In a Dec. 14, 2017, response to Rideout obtained by CBC News, Smith conceded he must follow the law, even though he complained before it passed that it was an unconstitutional intrusion on judicial independence.

"I recognize that this political decision has been formalized and I cannot unilaterally ignore it," Smith wrote.

He also argued Christie's transfer was allowed because the act requires the minister's consent to change a judge's "place of residence" and Christie was not residing in Saint John.

Stopping the 'revolving door'

The federal government appoints Court of Queen's Bench justices, so it's up to Ottawa to name replacements for the three vacancies unless Smith transfers judges into those positions first.

When Landry told Smith he would take his time to consider the Christie request, he said one of the reasons was to consult the federal government.

Until last year, Smith had the sole power to change a judge's "place of residence" after his or her appointment. Now he must get the minister's consent to do so.

In 2016, then-Liberal cabinet minister Donald Arseneault responded to Smith's criticism of the change by accusing the chief justice of agreeing to judicial transfers "among friends."

Arseneault speculated that Justice Marie-Claude Blais, a former Progressive Conservative justice minister who was appointed a judge in Saint John, was looking for a transfer to Moncton, where she had practised law. The current Moncton vacancy makes that scenario possible.

The position in Moncton opened when Justice Robert Tuck died Jan. 27.

The Liberals said they changed the law to end a "revolving door" situation in smaller towns, where they said judges were appointed by Ottawa then quickly transferred by Smith to larger cities.

Smith responded last year by saying he had never transferred a judge against his or her wishes.

Smith did not respond Monday to questions from CBC News about the three vacancies and his transfer request.