Liberal minister accused of 'extraordinary' attack on 'judicial integrity'

A lawyer for the chief justice of the Court of Queen's Bench of New Brunswick is accusing a Liberal cabinet minister of "an extraordinary impugning of judicial integrity" in comments he made this week about how David Smith moves judges from court to court.

In a written statement, Smith's lawyer, Michael Bray, says the "negative tone and inaccuracy of statements" by Donald Arseneault risks eroding public respect for the justice system.

Bray's statement also disputes several assertions Arseneault made about the consultations leading up to Bill 21.

The bill would amend the Judicature Act to give the minister of justice a veto over when Smith can transfer a justice from one courthouse to another. Smith said earlier this year that could threaten the independence of judges.

In the legislature on Wednesday, Arseneault listed 13 justices that Smith has moved over the years and suggested Justice Marie-Claude Blais, appointed by the Conservatives to the Court of Queen's Bench in Saint John, was angling for a move to Moncton.

"Of course, amongst friends, if we did it 13 times, we could surely do it 14 times," Arseneault told the legislature.

Under the existing law, Smith could move Blais, a former PC cabinet minister, to Moncton on his own, without the government's approval. But the new bill would give the Liberals the power to block that.

Smith has hired Bray to represent him in the increasingly contentious debate about the bill.

• Judicial moves currently made 'among friends,' Liberal suggests

In the written statement, Bray says the 13 moves by Smith were done "both to facilitate systemic requirements and allow for personal and family circumstances."

"A suggestion that a senior member of the judiciary has abused or will in the future abuse his position in fulfilling such responsibilities for reasons of friendship should be supported by facts," Bray wrote.

Justice Minister Stephen Horsman told CBC News on Friday that he had "no idea what [Arseneault] is implying" by using the phrase "amongst friends."

Asked if he knew of friendships playing a role in Smith's decision, Horsman didn't answer but said he respects Smith and wants to work with him.

Bray's statement also disputes some of Arseneault's other comments on Wednesday:

• The minister mentioned Nova Scotia's law, which requires that the chief justice there consult the justice minister. Bray says while Smith is opposed to giving the minister a veto over his moves, he was willing to sign an agreement that he'd consult the minister. Bray says Horsman rejected that offer.
• Arseneault said Smith had not responded to repeated phone calls. Bray's statement says Smith "has no record" of any attempt to contact him while the bill was being prepared or while he was out of the country.
• Arseneault said Smith gave Justice Judy Clendening "full authority" to "make decisions" on court administration while he was away and that Clendening "gave her approval" to Bill 21. Bray says Clendening got a call from a Department of Justice official the day before the bill was introduced and she warned the official the bill "might be constitutionally suspect."

Horsman clarifies comments

Bray's statement came as Horsman himself was trying to extricate himself from a new controversy Friday caused by his own comments about the bill.

In question period, Horsman told opposition MLAs that "I have had many judges call me and tell me personally" that they were glad the bill requires their approval for their own moves "because they did not want to be moved."

That led to more criticism from the opposition.

No one's personally calling me saying they like it. I see people at functions, and they come up to me and state, 'Thanks for including judges in the whole process' … because right now, they're not.- Stephen Horsman, Public Safety minister

Progressive Conservative MLA Jody Carr said it was inappropriate if Horsman was having private conversations with justices because it could create "undue influence" on how they handle cases involving the government.

Green Party Leader David Coon said the courts have ruled in the past that "you can't have politicians messing about with judges."

Horsman then contacted CBC News to say that he had misspoken.

He said justices weren't calling him to discuss the bill but had told him at chance encounters they were pleased Bill 21 requires the chief justice to consult them before moving them.

"No one's actually personally calling me," he said. "I have nothing on speed-dial. No one's personally calling me saying they like it. I see people at functions, and they come up to me and state, 'Thanks for including judges in the whole process' … because right now, they're not."

Horsman says Bill 21 isn't unconstitutional because in two provinces, Saskatchewan and Newfoundland and Labrador, governments can already move judges unilaterally.

Debate on Bill 21 was adjourned on Wednesday after Coon raised procedural objections to its third reading. Premier Brian Gallant says he intends to get the bill passed when the legislature returns on June 28.