Stephen Horsman hits, misses in defending judge-moving bill

New Brunswick's justice minister seems to have an uneven record when he points to other provinces to justify his controversial legislation on relocating judges.

Stephen Horsman has invoked both Saskatchewan and Newfoundland and Labrador in defending Bill 21, which is now before the legislature.

He said in those provinces, the cabinet alone has the power to move superior court justices.

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A former justice minister in Saskatchewan said Stephen Horsman is right about that province, but a former Newfoundland and Labrador justice minister said Horsman is wrong about his.

"If that's the strongest argument they've got, they should probably go back and start looking again," Jerome Kennedy told CBC News from St. John's.

Eric Cline said in Saskatchewan that "it is the cabinet that makes that decision" and "there's never been any problem with it."

Bill 21 would strip the Chief Justice David Smith of the Court of Queen's Bench of his power to unilaterally move judges from one courthouse to another, something Smith has done 13 times since 1998.

The bill would give both Horsman and the judge being moved a veto over any transfer.

Smith says that represents a potential interference with the independence of the courts.

Horsman wrong about Newfoundland

Horsman told a CBC political panel last week that Bill 21 represents less interference than the laws in Saskatchewan and Newfoundland and Labrador.

In those two provinces, "basically, cabinet decides where to move judges," he said, with no input from the chief justice.

But Kennedy, who was justice minister and attorney general from 2007 to 2009 and a PC cabinet minister for six years in total, said Horsman has his facts wrong.

"I can assure you that kind of situation never came to the attorney general or cabinet and judges were moved on a regular basis," he said.

"No one ever asked the consent of the attorney general or cabinet."

Kennedy said moves are left up to the chief justice of the Supreme Court trial division — the equivalent of Court of Queen's Bench — because "in no way, shape or form, can a government be seen as trying to impose its will on the judiciary."

The Judicature Act in Newfoundland and Labrador doesn't actually say who can move a judge already on the bench. It only said the judge being moved must approve.

Kennedy said he agrees with critics of Horsman's bill that giving the minister a veto over the chief justice's moves may be unconstitutional.

"It would not only be unseemly, it would be improper," he said.

Right about Saskatchewan

But Cline, who was NDP justice minister and attorney general for part of 2003, said Horsman is right about what is allowed under Saskatchewan law and on the principle involved.

He said any transfers of judges when he was in cabinet were recommended by court officials and approved by the cabinet without discussion.

"I don't ever remember any controversy," he said.

Saskatchewan's law lets the cabinet decide where a judge will sit when he or she is appointed, but said after that, the judge can't be moved without his or her consent.

Cline said he interprets that to mean it's still up to cabinet to move a judge, subject to his or her approval.

And he said there's nothing wrong with that.

"The province, under the Constitution, has responsibility for the administration of justice in the province."

Judges in Saskatchewan move from court to court at times, and "the government has the right to say" whether that's the proper use of public resources, Cline added.

Arseneault explains 'friends' comment

Meanwhile, Liberal cabinet minister Donald Arseneault has finally offered an explanation for his May 18 reference to judges being moved "amongst friends."

Arseneault listed 13 judges Smith has moved over the years and said former PC minister Marie-Claude Blais, now a judge in Saint John, would "probably" seek a move to Moncton soon.

"And of course," Arseneault added, "amongst friends, if we did it 13 times, we could surely do it 14 times."

Smith's lawyer Michael Bray called the comments "an extraordinary impugning of judicial integrity."

But Arseneault told a CBC political panel Thursday he wasn't talking about Smith but about Blais, who used to be a fellow MLA.

"Within the legislature, we're all elected officials, we're all friends. The individual in question, Marie-Claude Blais, is a friend of mine as well. She served with us, so `amongst friends,' yeah. We're all a bunch of MLAs," he said.