Convicted drug traffickers question judges' independence from chief justice

The controversy over judicial independence and the transfer of judges has reached New Brunswick's highest court.

Lawyers representing two men convicted in high-profile drug trials are asking the New Brunswick Court of Appeal to overturn the convictions, arguing two Court of Queen's Bench judges were not able to make decisions independently of Chief Justice David Smith.

In 2014, Smith authorized three warrants that allowed police to monitor private emails, which ultimately led to the convictions of Shane Williams and Anthony Edison, along with several others. 

At both trials, the presiding judges fielded arguments from defence lawyers that Smith's warrants should be quashed. In both cases, the judges ruled against them.

The defence lawyers are now telling the New Brunswick Court of Appeal that those decisions violated each man's right to "an independent and impartial tribunal" under Section 11 of the Charter of Rights and Freedoms.

The unilateral power Smith had at the time of the trials to transfer Court of Queen's Bench judges meant the two trial judges might be reluctant to strike down his warrants, they argue.

"To tell a person they will still perform the same work but they will be required to do so at a location far away from their home, friends, and family may undermine the person's desire or willingness to continue in the employment," writes Nathan Gorham, the lawyer for Williams.

'Insufficiently independent'

Charles Bryant, Edison's lawyer, said in an interview he will argue trial judge Thomas Christie was "insufficiently independent" of Smith "from a public-perception sort of perspective.

"Our argument would be the function of Justice Christie is impaired by the chief justice being involved in the warrant, and having some administrative oversight, some administrative authority, over that justice."

Williams and Edison were convicted at separate trials, but police and prosecutors relied on much of the same evidence in both cocaine-trafficking cases. Williams was sentenced to nine years and 11 months in jail, and Edison got 11 years.

Williams was convicted on seven charges in December 2016, including drug trafficking, while Edison was convicted last April on 11 charges, including drug trafficking and firearms offences.

Appeals based on previous law

The Liberal government amended the Judicature Act in May 2017 to take away Smith's unilateral power to transfer judges on his court. He's now required to get the consent of the justice minister.

The appeals are not based on the current law as amended by the Liberals. They're based on the previous version of the law, which was in effect when the trials were held.

Smith's unilateral authority to transfer judges meant he had "significant powers" over Justice William Grant, the trial judge who heard the Williams case, Gorham argues.

At the trial, Williams's lawyer argued Grant couldn't hear an application to quash the warrants because of Smith's power over him.

Grant rejected that, saying Smith was acting as a regular judge, not as chief justice, when he approved the warrants. He said the court needed more than "speculation" about whether his independence was compromised.

Christie complication

Edison's appeal makes similar arguments, but with a twist: his trial judge, Justice Christie, was transferred by Smith from Saint John to Fredericton in December without the province's consent.

Christie recused himself from a lawsuit involving the province while awaiting the province's decision because, he said, he could not rule independently while the province was pondering whether to use its veto.

In his recusal decision, Christie revealed he and Smith had agreed back in 2013 that Smith would transfer Christie to Fredericton when a vacancy opened up — a transfer that was still pending when he ruled on Smith's warrants.

"A member of the public that's reasonably informed of the issues might see that Justice Christie had this deal in place to relocate back to Fredericton with Chief Justice Smith, and so he may not be able to decide the issue of the authorization fairly on that basis," Bryant told CBC News.

"That isn't to say that Chief Justice Smith would execute his authority inappropriately or that Justice Christie would be swayed by that authority. It's simply that the potential for the public perception of that lack of independence [is] there."

Gorham is also using Christie's recusal last fall in his appeal of Williams's conviction.

Whether it's the province or the chief justice that ultimately moves a judge or blocks their move, the Christie recusal "highlights that the unfettered power to influence where a judge lives undermines judicial independence," Gorham writes.

Another wrinkle

There's yet another wrinkle in the Shane Williams case.

One of the three court of appeal justices scheduled to hear his case on March 13 is Justice Bradley Green.

Green was the justice minister in 2001 when the Judicature Act was amended to give Smith the unilateral power to transfer judges.

Gorham said Monday that he wouldn't comment on his appeal while it was before the court. He didn't say if he'd raise Green's previous role when he argues the case.

The Liberal government's stated rationale for taking away Smith's unilateral transfer power was that he frequently transferred newly appointed judges from smaller communities to large cities, creating a "revolving door" in small courthouses.

They haven't raised concerns about the issues raised in the Willams and Edison appeals.

Smith told reporters last year that all his transfers of judges were "as a result of a vacancy, and as a result of a request by a judge. There was never a judge moved that hadn't made a request to make that move."

There's no date yet for Edison's appeal.