A senior judge's open defiance of a provincial law should provoke a legal showdown on whether that law threatens the independence of the courts, according to two veteran lawyers.

Toronto lawyer and author Gavin MacKenzie said the New Brunswick Court of Appeal should decide whether the new sections of the provincial Judicature Act are unconstitutional. (MacKenzie Barristers)

They say Court of Queen's Bench Chief Justice David Smith's recent transfer of a judge — without the consent of the minister of justice required by law — should bring to a head the debate over recent amendments to the Judicature Act.

The Liberals changed the law in May to give the justice minister a veto over Smith's power to transfer judges on his court.

But last week Smith transferred Justice Thomas Christie from Saint John to Fredericton, saying he had waited 30 days for Justice Minister Denis Landry's decision and could not wait any longer.

It revives a controversy over judicial independence that began almost two years ago.

"The issue hasn't gone away," said Gavin MacKenzie, a Toronto litigator and author of Lawyers and Ethics: Professional Responsibility and Discipline.

Premier Brian Gallant's cabinet could ask for a judicial review of Smith's decision or file a complaint against him to the Canadian Judicial Council.

But said MacKenzie those options wouldn't address the underlying debate over the Judicature Act.

He said the government should instead send the new sections of the law to the New Brunswick Court of Appeal for a reference hearing on whether they're unconstitutional, as Smith has claimed.

"The issue is obviously still live so now would be the time," MacKenzie said.

'Disappointing decision'

The Justice Department wouldn't comment Monday on how it will respond to Smith's move.

"We will be reviewing this disappointing decision and its implications," the department said in an email statement.

Chief Justice David Smith told Justice Minister Denis Landry on Nov. 6 he planned to transfer Justice Thomas Christie to Fredericton and when he didn't hear back after 30 days, went ahead with the transfer. (Jacques Poitras/CBC)

Gabriel Bourgeois, a retired constitutional lawyer with the New Brunswick Attorney General's Office, agreed with MacKenzie that Smith's decision requires a public resolution.

"This is a public debate," he said. "It should be debated in open court, where the public will hear and understand why the chief justice made the decision he made … and the minister of justice can explain as well what his interest is."

Bourgeois said Smith has not given any reason for wanting to transfer Christie, and Landry has not given any clear reason for not consenting quickly.

Now we can start debating a little bit more what these powers are all about, how they're exercised and, most importantly, the reasons why they're exercised. - Gabriel Bourgois, retired constitutional lawyer

"It's no longer theoretical now, because there was a judge, a specific judge who was transferred," Bourgeois said.

"That is good. Now we can start debating a little bit more what these powers are all about, how they're exercised and, most importantly, the reasons why they're exercised."

Smith was vocal in criticizing the changes to the Judicature Act when they were introduced in February 2016, saying they represented a threat to judicial independence.

Before the changes were passed in May 2017, Smith had the power to transfer Court of Queen's Bench judges unilaterally.

The Liberals said that created a "revolving door" in which the federal government appointed Court of Queen's Bench judges to vacancies in smaller towns, only to see them transferred by Smith to larger cities.

Delay causes 'disruptive' difficulties

The issue resurfaced last month when Justice Thomas Christie recused himself from hearing a legal case against the province. He said he was in a conflict of interest because his rulings would affect the province at the same time the province could influence his transfer.

Christie wrote in his recusal decision that when he was appointed to the Court of Queen's Bench in Saint John in 2013, Smith assured him he'd transfer him to Fredericton, where he lives, when a vacancy opened up.

Christie recused himself from hearing a case against the province after his request for a transfer was not approved. (Pro Bono Students Canada)

Smith told Landry on Nov. 6 he planned to transfer Christie, but Landry refused to consent quickly. He told Smith he wanted to consult the federal government on whether it was planning an appointment to fill the Fredericton vacancy.

Rather than wait, Smith went ahead with the transfer Dec. 7.

"As you are aware this delay is causing difficulties which are disruptive to the functioning of the court," Smith said in a letter to Landry, without identifying the disruption.

"Given that 30 days has passed since my request, I therefore advise you that Justice Christie is advised immediately [transfer] to the Family Division in the Judicial District of Fredericton."

No time limit set

The law doesn't set a time limit by which a minister must endorse or reject a transfer.

The Justice Department said in its statement Monday it didn't consent immediately to the transfer because it wanted to consult the federal government, which appoints Court of Queen's Bench judges.

The statement said while Smith considered the transfer request urgent, there was no need for a new full-time judge in Fredericton until January.

Bourgeois said it's debatable whether Christie's wish for a transfer is enough to justify Smith's decision.

"I can quickly say the judge will be happier, will be in his environment, and will function better," he said. "I can debate it on the other side and say, 'Is that how the chief justice manages his court, on personal promises? On what basis?'

"There has to be some sort of objective standard for the exercise of these powers and normally these standards would be in written form."

'Place of residence' a wrinkle

Lorne Sossin, the dean of law at Osgoode Hall Law School in Toronto, said Smith's action "casts some confusion" on the legislation.

The fact that Smith sought Landry's permission on Nov. 6 "suggests he accepts the legitimacy of the legislation," while his decision to transfer Christie without consent "suggests he reserves authority to his office ultimately to make the call."

Sossin said there's a wrinkle to Christie's transfer that gives both sides "a work-around."

The law says a justice minister must consent to a chief justice changing a judge's "place of residence." But Saint John was never officially designated as Christie's "place of residence" when he was appointed in 2013.

"If he has no residence already declared, then this is not a transfer at all," Sossin said, "which begs the question of why Chief Justice Smith requested approval in the first place."