New Brunswick

PCs say new Liberal bill threatens the independence of judges

The Progressive Conservative opposition is demanding the Liberal government withdraw a bill that the PCs say threatens the independence of judges who sit on the Court of Queen’s Bench.

Bill would give justice minister, not chief justice, final say on where judges can live

Currently the province's chief justice decides where judges appointed to the Court of Queen's Bench should live. (CBC)

The Progressive Conservative Opposition is demanding the Liberal government withdraw a bill the PCs say threatens the independence of judges who sit on the Court of Queen's Bench.

The bill would amend the Judicature Act to give the justice minister a veto over Chief Justice David Smith's decisions on where judges of the Court of Queen's Bench should live.

The amendment says the chief justice can't designate "a new place of residence" for a judge "without first obtaining the consent" of the minister, a provision that PC MLA Ted Flemming says gives the minister too much power.

The current law leaves it up to the chief justice alone, a provision added to the act in 2001 by the PC government of Bernard Lord.

PC MLA Ted Flemming says the new bill threatens the independence of judges.
"I would ask that you revisit this policy … because anything that pulls discretionary things like this from the judiciary to the executive branch is wrong," Flemming said during a legislative committee's study of the justice department's budget estimates.

"I don't think that's appropriate, and I think that's a mistake. I think it should stay where it is."

The bill was introduced earlier this month and passed second reading. It's been sent to a separate legislative committee for debate.

Flemming told Justice Minister Stephen Horsman that if it passes, the new section of the law will allow a government that doesn't like a judge's decision to have that judge moved, a power that could intimidate the judge.

But Horsman said the Liberals respect judicial independence, and merely want a role in ensuring the courts work smoothly.

"We want to work in collaboration with the chief justice, and that's what government should be doing," he told the committee, "working side-by-side, working together."

Justice Minister Stephen Horsman said the Liberals merely want a role in ensuring the justice system works smoothly. (CBC)
That comment only alarmed Flemming more, because, he said, the idea of ministers being in regular contact with judges creates even more risk of interference.

When Flemming demanded to know what problem the change would fix, Horsman read a prepared statement that said the government wants to "balance the responsibilities and rights of all parties."

He said it would help the government ensure everyone has access to justice in the official language of their choice, something Flemming answered is already done effectively by judges.

Grasping at the language-rights rationale "just further convinces me that you have no idea why you're doing this," Flemming said.

Minister couldn't identify problems

Speaking to reporters later, Horsman couldn't identify any problems that have come up when the chief justice has decided alone where to assign a judge to live.

He referred in vague terms to having seen "a lack of communication between agencies and departments."

Asked for a scenario in which he would have to overrule the chief justice, Horsman said, "Right now, I can't even think of one. The point is to make sure we communicate together. What's wrong with that?"

Horsman told the journalists he had met with judges "at all levels" to discuss the change, but then clarified that Chief Justice David Smith of the Court of Queen's Bench — the judge whose power would be curtailed by the bill — was away at the time of the meeting.

"I hope he sees it like that, that I want to work with him," Horsman said.

He dismissed Flemming's idea that a future minister would be able to use the veto to intimidate judges into ruling the way the government wants.

"I can't presume what other ministers will do in the future, what their mentality or thoughts will be," he said.

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