A legal expert says if the Gallant government has a problem with Chief Justice David Smith moving judges around, there are better ways to deal with it than the controversial Bill 21.

Law professor John Kleefeld of the University of Saskatchewan says the bill could be "constitutionally suspect" because it will let New Brunswick's justice minister veto Smith's transfer of judges from one court to another.

Kleefeld, who teaches a course on the role of judges, says there are already legal precedents that restrict Smith's freedom to move judges arbitrarily, including a 2000 ruling in Alberta that said chief justices are not "unconstrained" when they make transfers.

"There are other mechanisms that might be used, and the judge that's being moved or some other judge within the court might be able to bring a case," Kleefeld said.

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Under Bill 21, Stephen Horsman would have a veto on the transfer of judges by the chief justice of the Court of Queen's Bench. (Joe MacDonald)

Justice Minister Stephen Horsman hasn't been able to point to a problem that Bill 21 is needed to fix.

The existing Judicature Act gives Smith the sole power to move Court of Queen's Bench judges. Bill 21 would amend that to require Smith to get the approval of the minister and of the judge being moved.

Smith says that could amount to interference with the independence of the courts.

While Horsman hasn't questioned Smith's judicial moves, Liberal cabinet minister Donald Arseneault gave a sarcastic listing of them in the legislature on May 18.

Smith "has moved not one, not two, not three, but 13 judges around the province" since becoming chief justice in 1998, Arseneault said. "Thirteen judges!"

Alberta court ruling

Kleefeld says if the Liberals are suggesting those moves were improper, a 2000 Alberta Court of Appeal ruling gives the judges involved the right to take legal action themselves.

In that case, provincial court Judge John Reilly sued his own chief justice, Edward Wachowich, after Wachowich and the province's judicial council transferred Reilly from Canmore to Calgary. Wachowich felt Reilly was biased in favour of a local First Nations community.

Reilly fought the move and won, with the Alberta Court of Appeal ruling that Wachowich and the judicial council didn't have the power to make the move.

The decision said a Supreme Court of Canada ruling saying cabinet ministers couldn't move judges unilaterally also meant that a chief justice can't move them unilaterally, either.

"If unconstrained, such a power reposed in a chief judge could also engender concerns about the use of the power for punishment or reward," the ruling said.

Kleefeld says the move of the Alberta judge "had an underlying disciplinary purpose that couldn't be disguised as an administrative purpose."

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Court of Queen's Bench Chief Justice David Smith has transferred 13 judges since becoming chief justice in 1998. (Acadia University)

"Neither a chief judge nor a minister of justice can move judges around for improper reasons," he said. "Such reassignments or relocations have to have an administrative purpose."

Smith's lawyer said in a written statement last month that his transfers of judges were "to facilitate systemic requirements and allow for personal and family circumstances."

Besides the minister, Bill 21 also gives the judge being moved the right to refuse the transfer.

Last week, a former Saskatchewan justice minister, Eric Cline, said in that province, the provincial cabinet moves judges and there's never been any suggestion it's an interference with the independence of the courts.

But Kleefeld says Saskatchewan's law also says the judge in question must approve the move, which protects the judge from being moved as a punishment.

Giving the minister or the cabinet a veto, on the other hand, "could be seen as something that would be held as a carrot or a stick … to punish a judge for making a decision against the government or reward him or her for a favourable decision."