Chief Justice defends his record of moving judges in province

The chief justice of the Court of Queen's Bench is defending his practice of moving judges from one court to another.

• Chief Justice David Smith 'surprised' by Liberal bill to curb his powers

• PCs say new Liberal bill threatens the independence of judges

In a letter to CBC News, David Smith says that "to the best of my memory" he has moved 13 judges in the more than 15 years he has been chief justice, a rate of almost one per year.

He also pointed to one of his predecessors, Guy Richard, doing the same thing. He listed seven judges he says Richard moved in the 12 years he was chief justice of the Court of Queen's Bench.

"It has been a long standing tradition of the Chief Justice both to accommodate the judges and to direct the judicial resource where needed," Smith wrote in response to CBC News asking he clarify how many judges he has moved.

He did not respond to a request for an interview.

As chief justice since 1998, Smith is the lead judge on the Court of Queen's Bench. The Judicature Act gives him administrative responsibilities for the court.

Since 2001, the act has given him sole power to transfer judges on his own after their initial appointments.

A Liberal bill before the Legislature would amend the Judicature Act to take away that unilateral power and require Smith to seek the "consent" of the province's justice minister when moving a judge after his or her initial appointment.

While the federal government appoints Court of Queen's Bench judges, the cost of relocating them is paid by the Commissioner of Federal Judicial Affairs, an arm's-length office funded by Ottawa.

Justice Minister Stephen Horsman, who introduced the bill Feb. 5, has so far not clearly explained why Smith's power needs to be curbed.

Asked last week for a scenario in which he would veto a transfer proposed by Smith, Horsman said, "Right now, I can't even think of one."

But Horsman's Liberal cabinet colleague, Donald Arseneault, has used Twitter to denounce what he sees as a pattern of judges being appointed in his part of the province then transferred elsewhere.

"Restigouche is prime example where judge sees opening to then get transferred to southern NB," Arseneault tweeted last week. "My region has seen judges use its vacancies to then move elsewhere."

He cited the example of Judge Pierre Dube, though Dube is a Provincial Court judge who was not moved by Smith and would not have been affected by the Liberal bill.

Arseneault said it was his personal opinion that "judge knows ahead of time that he didn't want to stay at appointed spot."

Horsman said last week he consulted New Brunswick Court of Appeal Chief Justice Ernest Drapeau and Court of Queen's Bench Justice Judy Clendening, who was filling in for Smith while he was away, before introducing the bill.

Smith said in his first letter to CBC that he wanted to know how giving a minister the power to veto his decisions to move judges "would not overstep the boundary and infringe upon judicial independence."

Until 1978, the act said the chief justice of the Court of Queen's Bench had the power to assign judges to particular courts, "and thereafter, whenever necessary, may change such assignments."

That wording was repealed in 1978 and replaced with a new section that said the chief justice "shall coordinate and apportion the work of the judges in their respective Courts."

In 2001, the Lord government amended the law again to give the chief justice the explicit power to "designate the place where a judge is to establish and maintain an office" and "designate the place at which the judge is to establish residence."

A 1997 Supreme Court of Canada decision struck down a section of Alberta's law on judges that gave the attorney-general and minister of justice the power to transfer judges.

The court wrote that because elected officials had the power to move a judge "at any time, including his initial appointment or afterward it could be used to punish judges whose decisions do not favour the government, or alternatively, to favour judges whose decisions benefit the government."

Horsman said last week the Liberal bill was introduced with "the utmost respect for judicial independence at both an individual and institutional level."

He has not been made available to answer questions from reporters since Feb. 23. A spokesperson said Monday Horsman expects to meet with Smith "in the near future" and will not comment until that happens.

A cabinet order that took effect Feb. 5, the same day Horsman introduced the bill, shifted responsibility for the Judicature Act from Attorney-General Serge Rousselle to Horsman.