New Brunswick

7 things list reveals about controversial judge-moving bill

Provincial officials were scrambling to prepare the controversial Bill 21 for “urgent” introduction in the legislature back in February, according to a list of documents that are the subject of a right-to-information dispute.

Justice David Smith will go to court to try to get documents released as part of fight over Bill 21

Provincial officials were scrambling to prepare the controversial Bill 21 for "urgent" introduction in the legislature back in February, according to a list of documents that are the subject of a right-to-information dispute.

Court of Queen's Bench Chief Justice David Smith has transferred 13 judges since becoming chief justice in 1998. (Acadia University)
Court of Queen's Bench Chief Justice David Smith says he will be going to court to try get the documents released as part of his battle against the legislation, which will curtail his powers.

The province wants the documents kept secret and turned down Smith's request, but as required by law, it has given Smith a description of the documents so he can challenge the refusal.

And even that list, which is 54 pages long, explains more about the genesis of Bill 21 than was known before:

1. Bill 'dropped from the sky'

The bill "dropped from the sky," as Smith's lawyer, Michael Bray, puts it. Officials began discussing the bill only on Jan. 24 of this year, just 12 days before the bill was introduced in the legislature. That's an unusually rapid pace for developing and drafting legislation, and suggests the supposed problem of a "revolving door" in some courthouses hadn't been a burning issue discussed within the civil service.

2. High-level political involvement

Premier Brian Gallant's chief of staff, Jordan O'Brien, was exchanging e-mails with officials from the justice department and the attorney-general's office from the very first day of discussions on Jan. 24.

3. The bill changed

The early email exchanges, from Jan. 24 to Jan. 31, referred to a "repeal" of Section 12.01 of the Judicature Act, which lets the chief justice of the Court of Queen's Bench transfer judges unilaterally. Removing that section would leave the bill without any clear statement of who gets to move judges. It's not clear when officials first discussed the idea of adding a veto for the justice minister.

4. Different descriptions

The bill was described in different ways. Some emails referred to a bill "related to the designation of a residence" for Court of Queen's Bench judges. But other times they described a bill "to align the authority of the Chief Justice of the Court of Queen's Bench with the authority of Chief Justices of other Canadian jurisdictions" on moving judges. The Liberals have also tried to use that benign explanation publicly, asserting other provinces have similar laws. But that has been challenged by experts in other provinces.

5. Attorney general involved

Attorney General Serge Rousselle was involved. The same day Bill 21 was introduced, Feb. 5, the Gallant cabinet transferred authority for the Judicature Act from Rousselle to then-Justice Minister Stephen Horsman. But Rousselle was involved up until the last minute: on Feb. 2, Rousselle was part of an email thread "regarding options" for the bill. Horsman was only looped into the email discussion the next day, Feb. 3. On Feb. 4, Rousselle exchanged emails with O'Brien about "requirements for completion" of the bill, and he was still included on some emails on Feb. 5, the day responsibility for the act was moved to Horsman.

6. Government in a hurry

The government was in a hurry. Officials from justice, the attorney general's office and the executive council office exchanged dozens of emails as they rushed to prepare the bill, with some emails described as "regarding [the] urgency" of getting cabinet documents prepared and the bill drafted.

7. Not the last word

The introduction of the bill wasn't the last word. On Feb. 7, two days after first reading of the bill, the attorney general's office sent another memorandum to cabinet, and email exchanges between Gallant's chief of staff and civil servants continued at least through Feb. 16, the last date covered by Smith's right-to-information request.

It'll be up to a judge to decide whether Smith gets to see the contents of the documents on the list.

Smith says by taking away his power to transfer judges himself, Bill 21 would infringe on the independence of the courts, something he says is unconstitutional.

Besides seeking a court review of the province's refusal to hand over the documents, Smith's lawyer says he is also looking at "further options" to challenge the bill.

Third and final reading of Bill 21 is expected when the legislature resumes sitting Tuesday. Smith's lawyer says the Liberals have told him they intend to pass it without changes.


Jacques Poitras

Provincial Affairs reporter

Jacques Poitras has been CBC's provincial affairs reporter in New Brunswick since 2000. He grew up in Moncton and covered Parliament in Ottawa for the New Brunswick Telegraph-Journal. He has reported on every New Brunswick election since 1995 and won awards from the Radio Television Digital News Association, the National Newspaper Awards and Amnesty International. He is also the author of five non-fiction books about New Brunswick politics and history.


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