FREDERICTON — A New Brunswick law professor says a disagreement between judges that’s playing out in public is “extraordinary” and does little to promote public confidence in the administration of justice.
“This is an unprecedented situation,” said Nicole O’Byrne, of the University of New Brunswick.
Justice George Rideout of the Court of Queen’s Bench wrote a letter to Chief Justice David Smith in December accusing him of breaking the law and calling on him to resign.
At issue is a change made by the provincial government last year to the Judicature Act requiring the chief justice to get Attorney General Denis Landry’s approval before moving judges from one place of residence to another.
Smith has argued that clause is unconstitutional and interferes with the independence of the judiciary.
It became a flashpoint between the judges when Smith approved Justice Thomas Christie’s move from Saint John to Fredericton, even though the province had temporarily blocked the move.
In his letter, obtained by the CBC, Rideout says Smith is disregarding the law, and in doing so setting a bad example.
But Christie has said he didn’t change his place of residence — he was already living in Fredericton and commuting to Saint John to hear cases.
The dispute has had other impacts. Christie recused himself from hearing a case last November in which the province was a litigant, expressing his concerns that government was interfering with the judiciary.
“I find that the minister’s current involvement in my reassignment places me in an actual conflict of interest position as he is purporting to exercise control over a decision that affects me at the same time I am seized with the present matter,” Christie wrote in his ruling recusing himself.
“Any judge must, at all times, be seen as being beyond any potential influence from any party to the litigation.”
O’Byrne said the division of power between the legislative, judicial and executive branches of government has been a cornerstone of Westminster constitutional democracies since the 18th century.
She said the situation faced by Christie is the exact kind of thing that the separation of powers is meant to avoid.
“It was designed to prevent potential or real political interference with the independence of the judges to make decisions without being influenced by any kind of potential favour by executives of the legislative branch,” she said.
O’Byrne said she believes that, if Christie was already living in Fredericton, then Smith was following the letter of the law and did nothing wrong.
The Canadian Press posed a number of questions to Smith but did not get a reply.
The provincial government said in an email it continues to “review options in response to Chief Justice Smith’s decision to move a judge without Minister Landry’s consent.”
It added: “The government has no comment on communications between two judges.”
The debate spilled onto the floor of the legislature Tuesday, with Ted Flemming, a former attorney general in the previous Progressive Conservative government, scolding the governing Liberals by saying “I told you so.”
“Now we see what happens when politicians go where they shouldn’t, when they get involved with the judiciary when they shouldn’t. A regrettable situation has now entered the public domain and the responsibility lies solely with the premier,” Flemming said.
“The changes allowing the Gallant government to interfere with the judicial branch of government was condemned almost universally by members of the bar, academic experts and most of the judiciary. I raised this issue in the house several times prior to its passing. I take no pleasure in saying this, but I warned you. I told you this would happen,” he said.
Kevin Bissett, The Canadian Press