Liberals still haven't answered months-old judge transfer request

More than three months after the initial request, the Liberal government has still not said yes or no to a requested transfer of a Conservative-appointed judge.

In February, Court of Queen's Bench Chief Justice David Smith asked Justice Minister Denis Landry to approve a move of Justice Marie-Claude Blais from Saint John to Moncton.

Smith was reluctantly complying with new provisions of the Judicature Act that require him to seek the minister's consent to a transfer.

But so far Landry has not said yes or no. "No decision has been made yet," said spokesperson Vicky Deschnes. She did not say what was taking so long.

Smith said in an email Tuesday he first submitted the request Feb. 2 and has followed up five times since then. His last follow-up letter to Landry was May 1. He would not comment on how long the answer is taking.

Smith wants to move Blais to Moncton to fill a vacancy there, one of three openings in the province.

Court of Queen's Bench justices are appointed by the federal government, and in March federal Justice Minister Judy Wilson-Raybould said she expected to fill the three vacancies "in short order."

Until last year, Smith could have moved Blais on his own.

But changes to the law, passed by the Gallant Liberals in 2017, now require him to get the provincial justice minister's consent.

Smith opposed change

When the amendment was introduced, Smith called the change an unconstitutional infringement on judicial independence and asked a national association of judges to challenge it in court. The association refused.

Despite the change, Smith transferred Justice Thomas Christie from Saint John to Fredericton late last year on his own. He made the move after 30 days went by without Landry responding to his request for consent.

Smith then argued that the new provisions of the law didn't apply to Christie because Christie's 2013 appointment to Court of Queen's Bench did not officially designate him as a Saint John-based judge.

In December, Smith wrote to judges on his court that he would respect the law in future transfers. "I recognize that this political decision has been formalized and I cannot unilaterally ignore it," he said.

Liberal minister questioned Blais move

Blais was appointed a Court of Queen's Bench judge in 2015, less than a year after she was defeated in the 2014 provincial election.

As Moncton North MLA, she was the attorney-general, justice minister and education minister in the Progressive Conservative government of Premier David Alward.

In 2016, then-cabinet minister Donald Arseneault suggested in the legislature that Smith transferring Blais would amount to special treatment for a "friend."

Arseneault noted that Smith had unilaterally transferred 13 Court of Queen's Bench justices over the years.

Blais was "probably looking to move to Moncton too," Arseneault said, "and of course, amongst friends, if we did it 13 times, we could surely do it 14 times."

Issue headed to appeal court

The issue of Smith's power to transfer judges will be heard next month by the New Brunswick Court of Appeal.

Three convicted drug traffickers are challenging their convictions, arguing not that the province's new veto power is unconstitutional but that Smith's previous unilateral power tainted their trials.

In 2014, Smith authorized search warrants in the police investigation. The three convicted men say because he had the power to transfer the judges who heard their trials, there could be a perception the judges couldn't rule independently on whether to admit the evidence.

The appeal court will hear the case June 26.

The new chief justice of the province, Marc Richard, pointed to that case last week when he refused to comment on Smith's previous criticisms of the changes to the Judicature Act.

"It's a matter that is currently before the court, in the sense that some individuals have raised questions regarding a criminal appeal, and it would not be appropriate for me to talk about that at all," he said.