Chief Justice David Smith 'surprised' by Liberal bill to curb his powers

The chief justice of the Court of Queen's Bench says he was surprised and concerned to find out a Liberal bill would give an elected politician a veto over his decisions on where judges should be based.

David Smith says he's asking the Liberal government to explain why the bill "would not overstep the boundary and infringe upon judicial independence."

The comments, a rare public intervention by a sitting judge, are in a letter to CBC News, sent in response to an interview request.

Smith said in the letter he wasn't consulted by the Liberal government and has asked for a meeting with Justice Minister Stephen Horsman to discuss the legislation.

"It would be an understatement to say that I was surprised to learn that the minister of justice had introduced a bill subjecting decisions of the chief justice of the Court of Queen's Bench to his consent without any notice to or consultation with that chief justice," Smith writes.

The amendment to the Judicature Act. which has not yet passed, says the chief justice can't designate "a new place of residence" for a Court of Queen's Bench judge "without first obtaining the consent" of the justice minister.

At the moment, the law allows Smith to make that decision himself.

Horsman was grilled on the amendment during a legislative committee session on Tuesday.

He told reporters that he had consulted judges about the change.

"We met with the chief justices before, at all levels … and I just want to work closer to them."

But asked how Smith had reacted to the bill, Horsman clarified that Smith "was away" but he had spoken to New Brunswick Court of Appeal Chief Justice Ernest Drapeau and "the chief justice that he left in charge."

He also said he hoped to meet Smith soon.

"I hope he sees it like that, that I want to work with him," he said.

In a written statement Wednesday responding to Smith's letter, Horsman identified the judge that Smith "left in charge" while he was away as Justice Judy Clendenning. He said she was the acting chief justice at the time she was consulted.

Horsman said the bill was proposed "with the utmost respect" for judicial independence and he repeated that he's willing to meet with Smith to discuss it. But his statement still does not identify what problem the bill is supposed to fix.

Smith wrote in his letter to CBC News he was given no notice and was not consulted about the bill, which was introduced by Horsman on Feb. 5.

"I immediately contacted him and have received one letter in response to my three to him in which he says he had input from Chief Justice Drapeau before presenting the bill," Smith says.

"I have requested a meeting with the minister to discuss this matter before it is taken to committee or third reading."

Tories blast bill

Opposition MLA Ted Flemming, the Progressive Conservative justice critic, said Smith's letter shows the Liberals have to pull the bill.

"Only an idiot doesn't change his mind," Flemming said.

"The suggestion that the justice minister was making that all was well with the judiciary, we now know, is simply not true," said Flemming, a lawyer and former attorney general.

"All is not well with the judiciary. The judiciary is not on side."

Smith said in his letter he wants an explanation "as to what urgency could have precipitated the origin and presentation of this bill without consultation with the chief justice of the court that is affected by this new legislation."

He writes that in some other provinces, the chief justice consults with the attorney general on where judges should be based.

"This seems a reasonable courtesy to which I would have no objection," he adds, but he says writing a veto into law may go too far.

Nicole O'Byrne, a University of New Brunswick law professor, said the veto may be unconstitutional because it would create the perception that the government "is either punishing or rewarding judges by having the final say with respect to their residence."

That's even more of a problem in cases where the province is a party to a court case. "It really can't be seen to be influencing judges in any way," she said.

Smith said in his letter that as a judge, he has to be "prudent" in discussing public issues, and that it wouldn't be fair for him to say any more until he meets with Horsman.