Retiring Chief Justice David Smith reflects on 26-year career

David Smith says it was the most difficult case he ever heard in 26 years as a judge: the sentencing hearing for Moncton police killer Justin Bourque.

And it was a case that made history when Smith, the chief justice of the Court of Queen's Bench, handed down the most severe criminal sentence in Canada since the abolition of the death penalty: three consecutive life sentences with no chance of parole for 75 years.

"There were three police officers," Smith said in an interview in his office the day before he retired from the court. "Police officers put their lives on the line for us. I felt each one of them, their loss, deserved a life sentence. That was my feeling on it."

Smith used a new federal law, passed in 2011, that allowed consecutive, rather than concurrent, sentences in cases involving multiple murders.

Bourque killed constables Douglas James Larche, Dave Joseph Ross and Fabrice Georges Gevaudan in June 2014. He wounded two other officers.

Bourque pleaded guilty, sparing the families of the officers a long trial.

But the two-day sentencing hearing went through a detailed timeline of the killings an experience Smith says he will never forget.

"I found it the most difficult case I've done in my career," Smith said. "It was so emotional. Normally you don't get that much emotion in a case. It was devastating listening to it."

Smith was appointed to the bench in 1993 and was named chief justice of the Court of Queen's Bench five years later.

The Moncton native retired March 20 when he turned 75, the mandatory retirement age for judges. He said the Bourque case is the one "that's going to live with me the rest of my life."

In the wake of the sentencing, some legal experts questioned whether Bourque's lawyer, David Lutz, gave him a full defence.

Lutz agreed to a statement of facts calling the killings "one of the most heinous crimes in Canadian history." After the sentencing, he declared Smith "had no choice" but to impose the 75-year sentence and did not file an appeal.

Smith wouldn't comment on Lutz's handling of the case, but said he wasn't surprised there had been no appeal.

He said Bourque had Lutz's advice and understood the ramifications of his guilty plea. "I think he was resigned to what was happening," he said.

A Quebec lawyer later said she would take on the appeal, but she was appointed a judge in 2016 and had to drop the case.

Judicature Act battle

Smith also used his retirement to make a final comment on his public battle with the previous Liberal government of Brian Gallant over changes to the Judicature Act.

The 2017 amendments took away Smith's power to unilaterally transfer judges on the Court of Queen's Bench, something he complained publicly would erode the independence of the courts.

"It pretty well is obvious that it targeted me and didn't allow me to move judges when they wished to be moved," Smith told CBC News last week.

He said given the province offered different rationales for the change at different times, "I think it had to be I'm speculating a political motive rather than for the good of the court."

But he would not comment on Progressive Conservative allegations that the Liberals wanted to keep some judicial vacancies open so that lawyers close to Gallant and federal cabinet minister Dominic LeBlanc could be appointed to fill them.

"It's all pure speculation," Smith said.

During the public controversy, CBC News obtained correspondence that showed two of Smith's colleagues then-New Brunswick Chief Justice Ernest Drapeau and fellow Court of Queen's Bench justice George Rideout were at odds with him over the issue.

But Smith said his relationship with most of his fellow judges "was generally very good" as the public debate played out.

"The court was supportive in general, because they knew I always [transfer a judge] only at the request of the judge and always for the benefit of the court."

In last year's election, Progressive Conservative MLA Ted Flemming promised that a PC government would repeal the change, though that hasn't happened yet.

Cameras and courthouses

Smith also weighed in on the PC government's decision to cancel a planned new courthouse for Fredericton that would replace the existing 1930 building.

"It does need replacing. I don't think there's any doubt about that," Smith said, though he added it should happen "when we can afford it."

He wouldn't call the need urgent, but said it should happen within the current government's mandate.

Smith said modern courthouses, including those in Moncton and Saint John, have much-needed security features including separate entrances for the public, prisoners and judges, "so we never meet. It's a very secure system."

The former chief justice also said he thinks the courts should be more open to the public, including by livestreaming proceedings via video cameras.

Cameras already record trials and hearings for internal use and "it would seem to me it should be a fairly easy thing to stream those so if you want to tune in to see what's happening in Courtroom Number 12, you should be able to do that."

Smith warned that "most of it's like watching paint dry it's not very entertaining," but said he believes in transparency. Family court trials might not be livestreamed, but "anything that's open to the public should be able to be broadcast."

A new settlement process

Smith said the biggest change he saw during his more than quarter-century as a judge was the advent of settlement conferences, something he pioneered in New Brunswick.

To deal with a backlog of cases, Smith began nudging parties in civil cases to agree to settlement conferences, overseen by judges, to sort out an agreement and avoid a lengthy trial.

The agreements are turned into binding court orders that are not subject to appeal.

At first, many judges believed that overseeing such discussions went beyond their role, but now almost all recognize it's a way to make the courts more efficient.

"It's such a time-saver and a money-saver," he said. "It gives a certainty that going to court doesn't."