Judges' seats to be filled soon, federal justice minister says

The federal justice minister says she will soon fill three vacancies on New Brunswick's Court of Queen's Bench, including one that is the subject of a transfer request by Chief Justice David Smith.

"I expect to fill the vacancies in New Brunswick in short order," Jody Wilson-Raybould said in a written statement released to CBC News by her office.

Raybould's statement did not contain specifics on how soon that will be. But the timing of the federal appointments could pre-empt the transfer requests by Smith, who has feuded with the Liberal government of Premier Brian Gallant over his power to move judges.

Wilson-Raybould wouldn't wade into that debate in her statement. She said it's a provincial issue.

"The Federal Government does not have a role in the organization and administration of provincial superior courts," she said in a written statement in response to questions from CBC News. "As a result it would be inappropriate for me to comment further."

Ottawa appoints Court of Queen's Bench judges, but the court is administered by the province.

Fight over judicial independence 

Last fall, Smith transferred Justice Thomas Christie from Saint John to Fredericton to fill a vacancy on the Court of Queen's Bench there.

Smith made the move after sending a request to Justice Minister Denis Landry. Under Liberal legislation passed in May 2017, Smith can no longer transfer judges on his own and must get the minister's consent. Smith publicly objected to the change at the time.

About 30 days after Smith's request, he went ahead and made the transfer even though Landry hadn't decided whether to consent.

Landry's office said he was consulting the federal government and local lawyers. If Wilson-Raybould had appointed a new judge to fill the vacancy during that 30 days, Smith could not have made the transfer.

Smith subsequently explained that the Christie transfer didn't actually require Landry's consent because Christie was never officially designated as a Saint John appointment.

He also said he would respect the new requirements of the Judicature Act in future transfers.

"This decision was certainly not intended to convey the message that anyone is free to ignore duly enacted laws with which they disagree," Smith said in a letter to fellow judges.

"Much as I had believed and still believe that the amendments to the Act in question undermine the independence of the Judiciary from the Executive, I recognize that this political decision has been formalized and I cannot unilaterally ignore it."

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

A provincial justice department spokesperson confirmed last month Smith had applied for Landry's consent to transfer a judge for one of those vacancies, but she didn't say which one.

Robert Duguay, a department spokesperson, said on Friday that request is to move a judge from the family division of Court of Queen's Bench from Saint John to Moncton.

"This request is under consideration," Duguay said.

Appeal postponed 

Meanwhile, a high-profile criminal appeal based on Smith's former power to transfer judges on his own has been postponed by the New Brunswick Court of Appeal and combined with two similar cases.

A panel of three judges was set to hear the appeal of Shane Williams, one of several men convicted in the Operation J-Tornado drug investigation, on Tuesday.

Smith signed warrants in the case that provided key evidence used to convict Williams and several other men.

Williams' lawyer is arguing that the trial judge, William Grant, could not rule independently on whether to admit that evidence because Smith's ability to transfer judges on his own gave him "significant power" over Grant.

Two other men convicted in the operation, Anthony Edison and Joshua Kindred, have also filed appeals citing the same legal argument. The appeal court will hear all three cases in a combined hearing on June 26.

Prime Minister Justin Trudeau must also appoint a new chief justice for the New Brunswick Court of Appeal soon. Chief Justice Ernest Drapeau will retire from that position next month.