Rousselle shares legal expertise but few answers on judge transfer clash

New Brunswick's attorney general put on his law-professor hat Wednesday as he tried to dodge the controversy over the independence of Court of Queen's Bench judges in the province.

Serge Rousselle, a former constitutional law professor at the University of Moncton, repeatedly cited his legal expertise in a 45-minute exchange with Opposition Progressive Conservative MLA Brian Macdonald.

By the time it was over, Rousselle had avoided offering any new insights or opinions on the issue, though he did provide enough legal theory for a first-year law school tutorial.

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"I feel like I'm almost in my old job as a law professor, to explain certain concepts so they're clear to the member opposite," Rousselle said during the debate.

"I always make that crystal clear that I'm not a lawyer," Macdonald responded. "I have no doubt that his knowledge exceeds mine on this issue. That's why I'm here asking questions."

The exchange took place during a legislative committee examination of 2018-19 budget estimates for the attorney general's office.

Rousselle asked to explain role

Macdonald used the hearing to demand Rousselle explain his role in crafting and defending last year's Liberal changes to the Judicature Act.

Those changes took away the unilateral power of Court of Queen's Bench Chief Justice David Smith to transfer judges on his own court.

My goal is not to come off as a law professor, but just so everyone in this chamber understands the distinction.- Serge Rousselle, attorney general

Smith must now get the consent of Justice Minister Denis Landry. The chief justice publicly opposed the change, arguing it violated the independence of the courts.

The attorney general and justice minister roles are separate cabinet positions held by different politicians. The attorney-general functions as the province's lawyer, while the justice minister administers the court system.

It's Landry, not Rousselle, who must consent to any transfer by Smith. Rousselle said his role in the transfers is "absolutely none — zero."

But Macdonald argued Rousselle is involved because his staff drafted the legislation and prepared legal advice on whether it was constitutional.

His staff may also advise the province on whether to challenge Smith's recent transfer of Justice Thomas Christie without Landry's consent. Landry said last week that he's looking at his options.

"How can this minister claim that even though he helped to draft this legislation … he's independent and that the process is independent?" Macdonald asked.

No comment on advice

Rousselle refused to answer whether he was advising Landry about challenging Smith's transfer. He said that would violate solicitor-client privilege, which allows legal advice to stay confidential.

"I'm not going to get into whether we gave advice on this or that question," he said.

​Rousselle's staff functions as the government's in-house law firm, providing legal services to government departments and drafting legislation. A separate, independent branch is made up of prosecutors who lay charges and argue criminal cases in court.

But Macdonald argued that creates even more potential conflicts.

"On the one hand, the minister drafted an act that means that all of those judges are beholden to the provincial minister of justice. … On the other hand, you have his prosecutors, who are going to those very same judges for search warrants."

MLA not corrected

Macdonald cited two cases before the New Brunswick Court of Appeal in which two men convicted on drug charges are arguing trial judges could not rule on search warrants issued by Smith. Macdonald said the cases highlight an "unacceptable conflict of interest."

In fact, Macdonald's description of the legal issues was incorrect. He said the warrants were being challenged because the changes to the Judicature Act mean the trial judges were not independent of the province.

But the trials took place before the Liberals changed the law, when Smith still had the sole power to transfer judges. The defence lawyers for the two men are arguing the trial judges lacked the independence from Smith to rule on whether his warrants were proper.

Rousselle didn't correct Macdonald and never challenged his points head-on.

"I could discuss at length the arguments, and I underscore 'arguments,' from the member opposite," he said.

Gives lesson to MLAs

Instead, he frequently ventured into classroom-style explanations of the constitutional division of powers.

He discussed how the federal government appoints Court of Queen's Bench judges but the province administers the court. He explained how the executive and judicial branches are separate.

"My goal is not to come off as a law professor, but just so everyone in this chamber understands the distinction," Rousselle said.

"Indeed the minister is the legal professor in the room," Macdonald acknowledged before pressing ahead with his questions.

Rousselle refused to speak to reporters after the committee session ended.