Sitting judge calls on chief justice to resign for defying transfer law

A feud has erupted within the judicial ranks of New Brunswick's Court of Queen's Bench, with a sitting judge accusing his own chief justice of breaking the law and calling on him to resign.

In a private letter circulated to fellow judges, Justice George Rideout said David Smith should step down over his recent transfer of another judge from Saint John to Fredericton.

Rideout, a former Liberal MP who has sat on the court for two decades, said he was "shocked" to learn of Smith's recent transfer of Justice Tom Christie and calls the move "contrary to existing law."

"You have said to our community that if you feel a provincial law is wrong, it is appropriate to disregard the law and proceed contrary to the law as if the law was a nullity," Rideout told Smith in the one-page letter obtained by CBC News.

"That, in my opinion, is a most improper message or example for a Chief Justice to send," it continues. "It puts all Court of Queen's Bench judges in a difficult position when enforcing laws which have been duly enacted."

New rule

The section of the Judicature Act that Rideout accuses Smith of breaching was added by Premier Brian Gallant's Liberal government last May. It requires Smith to get the consent of the justice minister before he moves a judge.

Smith transferred Christie in December without that consent.

Before the change, Smith had the power to unilaterally transfer judges without consulting anyone.

Smith spoke out publicly against the change when it was being debated, saying giving politicians a veto over his transfers was unconstitutional because it violated judicial independence.

Rideout said in his letter, dated Dec. 11, that he was writing "with a heavy heart."

The extraordinary critique is addressed to Smith and is copied to Rideout's 29 fellow justices on the Court of Queen's Bench. Smith is effectively their supervisor, deciding which cases are assigned to which judges.

In the letter, Rideout called Smith's transfer of Christie "a serious and grievous error in the administration of your duties" and concluded by saying, "Given what has occurred, I believe you have no choice but to step down as Chief Justice.

Smith refused to comment in an email to CBC News. "It is my practice to maintain confidentiality on correspondence to and from members of the court," he wrote.

Minister refusal

Last fall, Smith sought Justice Minister Denis Landry's consent to transfer Christie from Saint John to Fredericton, where he lives.

Christie then recused himself from hearing a lawsuit against the province, ruling he could not be objective and independent because of the minister's role in where he would work.

A few weeks later, with no decision from Landry on whether to approve the move, Smith transferred Christie anyway.

Rideout's career and Smith's tenure as chief justice are linked. Rideout, a former Liberal MP, was appointed a judge the same day Smith was appointed chief justice. Rideout filled the vacancy left by Smith's promotion.

In fact, one of Smith's first duties as chief justice, the day after he was sworn in to the position in April 1998, was to swear in Rideout.

The Gallant government argued the changes to the Judicature Act would bring it in line with a similar rule on the transfer of provincial court judges and with laws in other provinces.

The Liberals said they wanted to stop what Gallant called "a revolving door" for Court of Queen's Bench judges in small-town courthouses. They said Smith often quickly transferred the federally-appointed judges to larger cities, creating too much turnover.

Smith told reporters last year all his transfers were "as a result of a vacancy, and as a result of a request by a judge. There was never a judge moved that hadn't made a request to make that move."

He called the amendments to the Judicature Act "a deliberate infringement of judicial independence."

In December, Gallant said officials were reviewing Smith's transfer of Christie to decide if the province should respond.

"I know there are certainly some concerns and people are looking into it," he said. "We did pass a law that we think should be respected. Now whether it was or it wasn't, I'll allow others to continue their analysis to see exactly what happened and what that means."

The Department of Justice and Public Safety said Thursday it had "no updates" on that analysis and nothing to say on Rideout's letter.

"The provincial government has no comment on correspondence between two judges," spokesperson Danielle Elliot said in an email.