New Brunswick

Upside to judge-moving bill touted by ex-constitutional lawyer

A constitutional lawyer, who is now retired from the attorney general's office, says there's an upside to the controversial Bill 21 that would give the justice minister a veto over the transfer of Court of Queen's Bench judges in the future.

Lawyer retired from A.G.'s office says giving veto to judge being moved is 'a good idea'

A controversy surrounds a proposal to give the justice minister veto power over the chief judge of the Court of Queen's Bench when it comes to transferring judges. (CBC)

A constitutional lawyer, who is now retired from the attorney general's office, says there's an upside to the controversial Bill 21 that would give the justice minister a veto over the transfer of Court of Queen's Bench judges in the future.

While giving the justice minister a veto over the transfer of Court of Queen's Bench judges is a problem, Gabriel Bourgeois giving that same veto to the judge being moved is probably a good idea.

Justices on the court need to have independence not just from the government but also from the whims of their own chief justice, Bourgeois said.

"There is a serious imbalance" in the Judicature Act as it exists now, Bourgeois told CBC News.

The law gives Chief Justice David Smith the power to transfer judges entirely on his own, without any objective criteria for when such a move is justified.

Protection from abuse

While Bourgeois isn't suggesting Smith is abusing that power, he said individual judges should be protected from any potential abuse of it in the future.

Gabriel Bourgeois, a retired constitutional lawyer, said giving a judge being moved a veto over the move is one positive aspect of the government's proposed Bill 21. (Submitted)
"If you are subject to possibly being transferred by the chief justice, you probably as a sitting judge are very concerned about making sure that you do not get on the wrong side of that chief justice," he said.

In 2014, Canadian judge John Vertes, the head of the Commonwealth Magistrates and Judges Association, raised the same issue in a paper he delivered at the association's annual meeting.

As the administrator of a court, a chief justice can assign cases, grant sabbaticals, approve travel and make other decisions that can have the effect of rewarding or punishing other judges, Vertes wrote.

"The powers of a chief justice put them in such a dominant position that the independence of their judges may be compromised," he wrote.

That's an aspect of judicial independence that hasn't received much attention in the debate over Bill 21, Bourgeois said.

Partial solution in Bill 21

Bourgeois said the Liberal bill offers a partial solution because for the first time, it gives a veto to the judge who is being moved.

The legislation has been the subject of controversy since it was introduced by the Liberal government in February.

Smith says the bill, which would amend the Judicature Act, could be unconstitutional. Michael Bray, his lawyer, said it "steps onto judicial independence."

It has also been criticized by the New Brunswick chapter of the Canadian Bar Association.

The New Brunswick Law Society says it wasn't aware of any problem that the bill was needed to fix.

Court challenge planned

Bray is planning to go to court in October to force the provincial government to release documents about Bill 21 that it withheld in response to a right-to-information request.

Court of Queen's Bench Chief Justice David Smith has transferred 13 judges since becoming chief justice in 1998. (Acadia University)
He has also threatened to look at "further options" in the courts to fight the bill once it passes.

The legislation had been expected to get third and final reading in the legislature this week, but it now appears it won't pass before the summer break and will have to come back in the fall.

Without Bill 21 in place, Bourgeois said, the existing law will continue to give the chief justice a lot of leeway.

"All of the discretion is given to the chief justice, and when it comes to the rights and protection of the individual judges, there's nothing,' he said.

"Definitely giving more power to the individual judges is dead-on."

Bray told CBC earlier this year that Smith proposed an agreement to the provincial government that would see him tell the minister in advance of any moves and give the judge a veto.

But, Bray said, the government refused to sign the agreement unless Smith agreed to the minister having a veto as well.

About the Author

Jacques Poitras

Provincial Affairs reporter

Jacques Poitras has been CBC's provincial affairs reporter in New Brunswick since 2000. Raised in Moncton, he also produces the CBC political podcast Spin Reduxit.