New Brunswick

Judge-moving legislation introduced again

The Liberal government has reintroduced a controversial bill to give politicians a veto over how the chief justice of the Court of Queen’s Bench transfers judges who sit on the court.

Bill failed to pass the first time around, but Liberals are determined to get veto power over judge transfers

New Brunswick Justice Minister Denis Landry has introduced a bill that would give the government a veto over where Court of Queen’s Bench judges can be transferred. (CBC)

The Liberal government has reintroduced a controversial bill to give politicians a veto over how the chief justice of the Court of Queen's Bench transfers judges who sit on the court.

Justice Minister Denis Landry introduced the legislation to amend the Judicature Act in the legislature on Wednesday morning, shrugging off questions about whether it interferes with the independence of the courts.

"It shouldn't be a surprise to anyone since we'd already indicated we would go ahead with the bill," Landry told reporters.

The previous version of the legislation, Bill 21, didn't pass before the last session of the legislature ended. The Liberals said then they would bring it back this fall.

Chief justice sees interference

Chief Justice David Smith has publicly questioned the constitutionality of the bill, which requires him to get the "consent" of the justice minister before transferring a judge from one court to another.

That amounts to interfering with the independence of the courts, Smith said earlier this year.

Landry brushed off that issue Wednesday. "I'm not saying it's unconstitutional, I'm not saying it's constitutional," he told reporters, suggesting that issue can be sorted out when the bill is debated in the coming weeks.

He said the bill is needed because Smith often transfers judges from their initial location, which is a federal government appointment, to a new one.

Landry cites Woodstock problem

He cited Woodstock as an example, where he said several judges have been appointed then moved "a few months later."

"This is what we want to correct. If we name a judge, they should reside there, for a long period of time, not just two or three months then move them where they want to go."

Asked whether he'd veto such a transfer, Landry said, "this is what we'll see."

In June, however, Landry and his department refused to comment when Smith transferred Justice Tracey DeWare from Woodstock to Moncton.

Smith made that transfer, and another that saw Justice Richard Petrie shifted from Saint John to Woodstock, just one day after the legislature adjourned for the summer without passing the bill.

Access to information denied

There was more bad news Wednesday for Smith's battle against the legislation: one of the judges on his own court, Justice Paulette Garnett, ruled against his lawyer's attempt to force the government to release internal documents on the bill.

Court of Queen's Bench Chief Justice David Smith has transferred 13 judges since becoming chief justice in 1998. (Acadia University)
Smith's lawyer Michael Bray made a right-to-information request for the documents, arguing he had a right to know who the government had consulted when it drafted the bill.

But Garnett ruled that all but five of the documents were "properly withheld" because the government has the discretion to keep some material, including advice to ministers, secret.

She ordered the government to show her the five remaining documents by Nov. 25 so she can rule on them.

Must pay legal costs

And she ordered Bray to pay $2,500 of the province's legal costs, commenting in her ruling that he and Smith "specifically asked for information which they must have known they were not entitled to receive."

'Wasn't there a sequel to the movie Dumb and Dumber?'  - ' Progressive Conservative MLA Ted Flemming reacts to Bill 17

Bray and Smith wouldn't comment on what legal moves they might make next. Bray hinted earlier this year that Smith would consider a court challenge to the legislation itself.

Bray said in an email Wednesday that Smith's views have been reported in the media and he has nothing to add to what he has said already.

Landry told reporters the goal of the legislation is to "have communications" with Smith, though the bill goes further than that.

Other provinces have laws that require consultations between a government and a chief justice before a judge is transferred, or that give the judge being moved the right to refuse the transfer.

Minister's powers would be unusual

But the Liberals have yet to identify a province that has an explicit veto for the justice minister like the one their bill will create.

Opposition MLAs slammed the government for bringing the bill back.

" Wasn't there a sequel to the movie Dumb and Dumber'" Progressive Conservative MLA Ted Flemming asked.

Flemming said the Liberals still haven't articulated what problem the bill is designed to resolve. He said they talk in generalities about new judges being transferred too quickly but won't identify any specific case that concerned them.

"Where is the difficulty? I don't see where it is."

Green party Leader David Coon said he was disappointed the Liberals didn't use the summer break to water down the bill so that Smith would be required only to consult the minister rather than get his or her consent.

"That would have been acceptable to everyone," Coon said. "It wouldn't have been unconstitutional."

The new bill, Bill 17, was given first reading Wednesday.


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.