Chief justice fails in latest challenge to judge-moving bill

Justice minister could get veto on moves of judges by Friday

The chief justice of the New Brunswick Court of Queen's Bench has failed in his attempt to get a national judges association to fight a piece of Liberal legislation that would curtail his powers.

The Canadian Superior Court Judges Association will not push for a legal challenge to the Gallant government's Bill 17, which would take away Chief Justice David Smith's power to transfer judges unilaterally by giving the provincial minister a veto.

"The decision of the Board is that, generally speaking, this is not a matter that would infringe upon judicial independence," the association president, Justice Susan Himel, wrote in a letter to Smith.

Smith wanted the association to lobby the federal justice minister to send the issue to the Supreme Court of Canada for a reference hearing on the bill's constitutionality.

But the association's independence committee decided "it is not an appropriate role" for the association," Himel said in a letter dated April 18. "The full board agreed with that decision in a meeting April 8."

In an email to CBC News, Smith complained that the committee's decision was flawed because it wasn't given the information package he sent and because it relied on information from two "nameless" New Brunswick judges who disagreed with Smith.

'Infringement of judicial independence'

Smith has been fighting the legislation since early last year, calling it "a deliberate infringement of judicial independence."

But the Liberal government has said a veto over Smith's unilateral power is necessary because Court of Queen's Bench judges are frequently named by Ottawa to vacancies in smaller towns, only to be soon transferred to larger cities by Smith.

Premier Brian Gallant said in September he was "a bit surprised this has been this big of an issue … It's a pretty mundane and small thing." He said the government "may never use the power" it would get when the bill passes.

Smith announced during a rare public speech in January he would ask the association, which represents 1,000 judges across the country, to challenge the bill through a reference case to the Supreme Court to determine if it's constitutional.

He said at the time it would be inappropriate for him to launch a legal challenge himself.

"That's getting out into the field of battle where I shouldn't be," he said in January.

He also said he would not speak publicly on the bill again.

Alleges conflict of interest

But since then, he has provided CBC News with copies of his correspondence with Justice Himel, the Ontario judge who heads the association.

In one of those letters, Smith levels serious accusations against other New Brunswick judges.

Smith complained on March 20 that New Brunswick Court of Appeal Justice Marc Richard was in a conflict of interest because he is the past-president of the association.

He also said he contacted the Atlantic representative on the committee, Justice James Chipman of Nova Scotia, who he said told him the committee hadn't been given the material Smith submitted.

Instead, Smith said Chipman told him, the committee was told by two unnamed New Brunswick judges that "several judges were not unhappy" with the bill, that lawyers weren't unhappy with it, and that lawyers were upset he had used his power to move 11 judges in and out of Saint John.

In fact, the New Brunswick branch of the Canadian Bar Association has questioned the need for the Liberal bill.

Smith wrote to Himel that the 11 transfers to and from Saint John happened over 18 years and "no disapproval" was ever mentioned by lawyers in the city.

"The fact that all information I was forwarded was withheld from committee members is not comprehensible," Smith wrote. "Neither is the misinformation given to them."

Unlikely to pass this session

Himel said Tuesday that she would not comment on Smith's complaints about the process.

Richard said in an email that as past-president of the association, he didn't take part in the discussion about Smith's request for the very reason that the issue may come before the court of appeal someday.

Quebec, Alberta and Saskatchewan have laws that give elected politicians some role in the decision, but other provinces do not. The New Brunswick justice minister already has a veto over the transfer of provincial court judges.

Smith said one reason the Supreme Court should hear the case would be to sort out what legal rules are needed to ensure the courts are independent from government.

Bill 17 has yet to receive second reading in the legislature despite being introduced five months ago. It's the oldest Liberal government bill to not move beyond first reading, and with the Liberals aiming to adjourn the legislature May 5, it is unlikely to pass this session.

Smith, who is 73 years old, was appointed chief justice of the Court of Queen's Bench in 1998. He faces mandatory retirement from the court when he turns 75.