Court brushes aside arguments in criminal appeal of unilateral power

New Brunswick's top court has suggested it's fine with the unilateral power that Court of Queen's Bench Justice David Smith used to have before the Liberals took it away last year.

The court brushed aside arguments Tuesday in a criminal appeal that Smith's former power to transfer judges had compromised the independence of two judges who heard three of the Operation J-Tornado drug trials.

The lawyers were trying to overturn the convictions of Shane Williams, Anthony Edison and Joshua Kindred.

The Court of Queen's Bench judges in the trials, William Grant and Thomas Christie, both admitted wiretap evidence obtained through warrants signed by Smith in 2014.

Grant and Christie lacked the independence to rule on Smith's warrants because, in theory, Smith had the power to punish them by transferring them, the two lawyers argued.

But Chief Justice Marc Richard, in one of his first cases as head of the appeal court, clearly didn't buy that.

"Do we know of one example where a justice was moved by a chief justice against their will as a punishment for them doing their job?" he asked.

Nathan Gorham, the lawyer for Williams and Kindred, did not offer an example.

Instead, he argued that Smith's unilateral power created the possibility of such punishment and that undermined public faith in the judge's independence.

"It's about looking at the objective structure of the court to determine if there are sufficient guarantees of independence," he said.

Richard was not convinced, saying the argument would mean any warrant signed by Smith could not be reviewed by a trial judge.

"You're saying no judge in New Brunswick can rule on a warrant issued by the chief justice of the Court of Queen's Bench," he said. "That's got to be your position."

AmendedJudicature Act

Last year, the Liberal government of Premier Brian Gallant amended the Judicature Act to take away Smith's unilateral power to transfer judges on his court. Now, Smith must seek the consent of the provincial justice minister.

Smith complainedthat was a violation of his court's independence.

The drug trials took place before the Liberal amendments, when Smith could move judges on his own.

Gorham and Charles Bryant, the lawyer for Edison, argued judges must also be independent of their own chief justice.

Operation J-Tornado

In 2014,Smith authorized three warrants that allowed police to monitor private e-mails and ultimately convict Williams, Kindred and Edison, along with several others. The police investigation was part of a major Saint John-area drug probe named Operation J-Tornado.

The three men were convicted on separate trials but police relied on the same evidence. The information gathered from the wiretaps approved by Smithwas key to the convictions.

Richard said there has never been an issue with a chief justice's administrative powers before.

"Nobody has raised this. This has not been a concern for anybody."

Bryant argued that because of the controversy over the curtailing of Smith's powers, including a private exchange of letters between judges on the issue that became public, the perception of the issue is now more important.

But Richard was again having none of it.

"The argument you're putting forward is that your client could not be tried the moment the chief justice signed the warrants," he said.

Richard and the two other justices hearing the appeal, Margaret Larlee and Kathleen Quigg, avoided wading into the debate over the Liberal amendments to the Judicature Act.

The Liberal government argued it needed to curtail Smith's powers because his frequent transfers were creating a "revolving door" in smaller communities, with judges appointed there and then soon transferred to larger centres.

Richard mused at one point that maybe the solution would be for governments and the courts to avoid the issue altogether.

"What about no transfers at all?" he asked. "You accept the appointment you accepted and you stay there."

After the hearing's afternoon break, Richard signalled that the three justices were dismissing the Judicature Act arguments.

He told the federal lawyer arguing against the appeal, Michael Taylor, that he did not have to bother responding to the independence issue.

The three justices weremore interested in arguments from Gorham and Bryant about the affidavits used to admit the warrants at the trial. The lawyers argued they lacked required certification from an oaths commissioner and did not include a date when they would expire.

Larlee said she found the lack of a duration on the warrants "troubling."

Bryant said that kind of sloppiness was unacceptable for affidavits that allowed police to eavesdrop on citizens. That kind of intrusive investigation has to meet a high standard, he said.

The appeal court will rule on those arguments at a later date.