Chief Justice David Smith may be running out of options in his fight against the Liberal government's legislation to take away some of his powers.
Smith, the top judge on the Court of Queen's Bench, is trying to stop Bill 17, which makes amendments to the Judicature Act that would require him to get the justice minister's approval before transferring judges.
In January, he asked an association representing judges to challenge the constitutionality of the Liberal bill before the Supreme Court of Canada.
But two months later, the association hasn't taken any steps to do so.
"No we have not," Justice Susan Himel, president of the Canadian Association of Superior Court Judges, said in a one-sentence email on Friday to CBC News.
She did not respond to a followup email asking if the association was even considering it.
No response to Smith
Smith said in an email to CBC News that his request "unfortunately seems to be on hold." He said Himel had not responded to several emails from him since Feb. 17.
Bill 17 would give the provincial justice minister a veto over Smith's power to transfer justices. The existing law gives Smith the power to do that on his own.
The Liberal government has said it needs a veto 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.
The Liberals have refused to provide a specific example of a transfer that they found unacceptable or that they would have vetoed.
Reference hearing sought
Smith announced in January at a speech to the Moncton Rotary Club that he would ask the association to seek a reference hearing before the Supreme Court on Bill 17.
He said at the time the association, which represents 1,000 superior-court-level judges in Canada, "is the proper body to address the judicial independence issue that exists."
"I am hopeful that the association will take up the gauntlet and seek a review of this issue by the highest court."
Smith told reporters after the speech that all his transfers were "as a result of a vacancy, and as a result of a request by a judge. There was never a judge moved that hadn't made a request to make that move."
Request sent Jan. 16
He sent the request to the association the same day, Jan. 16, but in an email later that week, Himel wrote the organization "would have no standing to initiate any proceedings." The law on reference cases says they must be requested by a federal or provincial government.
Himel wrote that she would ask the association's independence committee for a recommendation "on what role, if any, we might play."
After not hearing from Himel for weeks, Smith wrote to her again March 6. He said the association's "primary mandate is to protect and enhance judicial independence" and it should ask the federal Justice Department to apply for a reference hearing.
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Smith said in January that Quebec, Alberta and Saskatchewan give elected politicians some role in transferring judges. But other provinces do not. He said because of that disparity, the Supreme Court should rule on whether that role violates judicial independence.
In his Rotary speech, Smith repeated his criticisms of Bill 17. He said that he wasn't consulted on it, that documents indicated it was put together quickly in Premier Brian Gallant's office, and that he offered a compromise to the government that it rejected.
Smith said in his Rotary speech that he would not be speaking publicly on the bill again.
"Further public differences will yield nothing positive."
Bill 17 was introduced in the legislature in November and has not advanced past first reading. There's been no indication when the Liberals plan to move it forward.