New Brunswick

Justice David Smith pushing forward with legal fight over Liberal bill

Chief Justice David Smith of the Court of Queen’s Bench appears to have given up on getting changes to the Liberal government’s Bill 21 and will instead push ahead with his legal fight over the legislation.

Court of Queen's Bench's chief justice is seeking documents relating to the proposed judging-moving bill

Court of Queen's Bench Chief Justice David Smith is pushing ahead with his legal fight against the Liberal government's proposed judge-moving bill. (CBC)

Chief Justice David Smith of the Court of Queen's Bench appears to have given up on getting changes to the Liberal government's Bill 21 and will instead push ahead with his legal fight over the legislation.

Michael Bray, Smith's lawyer, said he will ask the courts for a new date to challenge the provincial government's refusal to release documents about the bill.

And Bray warns that a broader court fight is possible, saying "decisions concerning further action will be taken in due course by Chief Justice Smith."

Bill 21 would give the provincial justice minister the right to veto Smith transferring Court of Queen's Bench justices from court to court.

Smith has called that a potential violation of the independence of his court.

The legislature resumes sitting next week and is expected to pass the bill before breaking for the summer.

Justice Minister Denis Landry's office offered a meeting with Smith in "the next few weeks." (CBC)

In a press release, Bray says Smith has made "several fruitless requests" to meet with new Justice Minister Denis Landry, who was moved into the job in a cabinet shuffle earlier this month.

He said Landry's office offered a meeting "within the next few weeks."

Given that would be after next week's sitting, Bray said, it's clear the provincial government plans to pass the bill without changes.

"If they maintain that position, there's no point going to a meeting because the question of the ministerial veto is the question at issue here," Bray told CBC News.

Landry refused through a spokesperson to comment Thursday. 

The Liberals have defended the bill by saying ministers and cabinets have a role in moving judges in other provinces.

The existing law allows Smith move judges on his own.

Smith is not alone in his criticism.

The Law Society of New Brunswick has said it sees no need for the bill, and the Canadian Bar Association's New Brunswick branch calls it a "constitutionally questionable and troubling intrusion into the independence of the judiciary."

In a press release earlier this month, the CBA said Bill 21 would be "a dangerous precedent for further attacks" on the courts and called for the Liberals to withdraw it.

"I think all of us are trying to put our minds around what the problem was that the legislation was trying to correct," CBA branch president Ann Whiteway-Brown said Thursday. "None of us knows what that is."

Smith filed a right to information request earlier this year for government documents that discuss Bill 21. His request was turned down and Bray is asking the courts to review that rejection.

Bray's news release includes a 54-page list of the documents the government says it is refusing to release to him.

Bray says the list is revealing even if he and Smith haven't been able to read the contents of the documents in dispute.

The earliest date for any document discussing Bill 21 is Jan. 24, just 12 days before the bill was introduced in the legislature.

Most bills can take months or even years of work before coming to the legislature, but this one "dropped out of the sky" with no advance discussion with judges and lawyers, Bray says. "That seems to be a remarkably precipitous birth of legislation."

That's why Smith considers it important to see the documents and find out what prompted the quick drafting of Bill 21, Bray says. "There didn't seem to be any problem motivating it."

Bray still won't say what "further action" Smith is considering beyond the right-to-information review.

He says any court action would be heard by the same court Smith administers, which could also harm the public's perception of the justice system.

And a decision on the documents could be appealed to the New Brunswick Court of Appeal, whose chief justice, Ernest Drapeau, has reportedly endorsed Bill 21.

"We have to be very careful how we deal with this," Bray said. "We are in somewhat of a quandary."

Whiteway-Brown, says the association is also concerned about how the courts could deal with a legal challenge to the bill. "We're really at a loss," she said.