New Brunswick

Gallant considering challenge of chief justice's latest move

Chief Justice David Smith transferred one of his judges from Saint John to Fredericton earlier this month, in apparent defiance of provincial law.

Chief Justice David Smith transferred judge earlier this month, in apparent defiance of provincial law

In a year-end interview, Brian Gallant said his government will consider challenging Chief Justice David Smith's decision to relocate Justice Thomas Christie. (Brian Chisholm/CBC)

Premier Brian Gallant says his government will decide in the new year whether to challenge a recent move by Court of Queen's Bench Chief Justice David Smith.

Smith transferred one of his judges from Saint John to Fredericton earlier this month, in apparent defiance of provincial law.

But it's not clear yet how, or whether, the government will respond.

"I know there are certainly some concerns and people are looking into it," Gallant said in a year-end interview with CBC News.

"We did pass a law that we think should be respected. Now whether it was or it wasn't, I'll allow others to continue their analysis to see exactly what happened and what that means."

The Liberals amended the Judicature Act in May to take away the chief justice's power to unilaterally move judges, a change Smith denounced as unconstitutional and a violation of judicial independence.

Under the amended law, Smith must get the consent of the provincial justice minister.

Chief Justice David Smith moved a judge from Saint John to Fredericton last month, in apparent defiance of provincial law. (Jacques Poitras/CBC)

But after waiting a month for Minister Denis Landry to approve the transfer of Justice Thomas Christie, Smith notified Landry early in December that he was making the transfer on his own.

Gallant said he has not gone "too deep into the file" about Smith's move and what he knew about it mainly came from media reports.

The province has several options to challenge the transfer, including seeking a judicial review or complaining about Smith to the Canadian Judicial Council, an independent body of judges that reviews concerns about judicial conduct.

Gallant would not say whether either of those options are on the table.

'Don't want to jump the gun'

"It's a hypothetical," he said. "We certainly don't want to jump the gun and say there was any issue if there wasn't one. I'll allow people do their analysis. …

"Certainly this is a very delicate matter," he said. "As you can imagine, we certainly don't want to be criticizing any judges and certainly don't want to be going down that path. At the same time, the legislation was passed and we want to make sure it's respected."

Any challenge to Smith's move could drag on for months, and would be rendered moot when Smith retires as chief justice in March 2019.

Chief Justice David Smith transferred one of his judges from Saint John to Fredericton last month, in apparent defiance of provincial law. 1:53

Gallant said he acknowledged that the amendments to the Judicature Act represented "a bit of a change here for the chief justice."

In the final question period of 2017 in the legislature, Opposition Progressive Conservative leader Blaine Higgs pointed out that Gallant said in his 2016 year-end interview with CBC News that the change was "mundane" and "we may never use the power that we now have."

Consulting federal government

"The premier downplayed it by saying it was not a priority and they might never use the new power he was granted," Higgs said, calling on Gallant to repeal the amendment.

Landry said earlier this month that he had not blocked Christie's transfer but had wanted to take the time to consult the federal government before approving it.

Court of Queen's Bench justices are appointed by Ottawa. Christie was transferred to Fredericton to fill a vacancy there that might otherwise be filled by a new appointee.

Christie himself argued in November that the new section of the Judicature Act didn't apply to his transfer.

The section says the chief justice can't change a judge's "place of residence" without the minister's consent.

But Christie said when he was appointed to hear cases in Saint John in 2013, Ottawa did not designate a place of residence for him, so Smith's transfer did not change anything subject to the law.