Chief Justice David Smith continues fight against Liberal bill

The chief justice of the Court of Queen's Bench in New Brunswick says he's "disappointed but not surprised" the Liberal government is pressing ahead with legislation that he says threatens judicial independence.

And David Smith has also revealed that he's heading for a legal showdown with the government over the release of documents relating to the bill.

Bill 21, which would give the minister of justice a veto over how Smith relocates judges between courts, was approved by a committee of MLAs on Wednesday.

• Chief Justice David Smith 'surprised' by Liberal bill to curb his powers
• Chief Justice defends his record of moving judges in province
• Stephen Horsman, David Smith meet over contentious Liberal bill

The committee vote represented the last opportunity to amend the bill, but it was passed without changes.

The vote didn't surprise Smith "as the minister of justice seemed adamant about passing it in its present form," says the statement, which was drafted by Michael Bray, a lawyer representing the chief justice.

Bray told CBC News in an interview that Smith is considering a legal challenge to the legislation.

"He's going to wait until the bill actually passes," said Bray."It's been through committee, and I suppose third reading will be fairly shortly, and then a decision will be made once it's actually passed into law.

"There are some options being looked at but he's not willing to comment at this time because nothing's been decided," he said.

In the statement, Brayrevealed he filed a right-to-information request on Smith's behalf"to determine what problems, if any, the new legislation purported to remedy."

But the government withheld documents he asked for, andBray plans to challenge that decision in court.

Potential legal conundrum

Bray acknowledged a potential legal conundrum: right-to-information challenges are heard by Court of Queen's Bench judges, who are the very judges who Smith oversees in his role as chief justice of that court.

He said Smith handed off the job of assigning a judge to the case to another judge in Saint John.

Smith's extraordinary statement also includes his version of what he says was his attempt to negotiate a compromise withHorsman"to heal the publicly perceived rift between the executive and the judiciary concerning the administration of justice."

It says Bray drafted a memorandum of understanding that would commit Smith to tellingHorsmanif he planned to relocate a judge, meet with the minister and explain the reasons.

And, it says, Smith offered to let minutes be taken of the meetings so that there would be a written record if anyone questioned the move later.

Bray told CBC Smith felt that would not violate judicial independence because that process wouldn't change how the courts function or are funded.

He said some other provinces follow an "unwritten protocol" that sees the minister consulted, but without a veto.

The statement says Smith "accepted some changes" proposed by Horsman's staff but "the minister refused to sign unless he were given the power to veto."

Smith said in the statement that it's been up to the chief justice to move Court of Queen's Bench judges since 1979, a practice later written into law.

The same practice exists in Nova Scotia and Newfoundland and Labrador, he said.

Bray said the relocation of judges is paid for by an independent federal commission for federally-appointed judges, so moving costs shouldn't be a concern for the province.

Liberal cabinet minister Donald Arseneault has said communities in northern New Brunswick have seen a revolving door in the courts, with judges appointed there only to be moved to larger communities in the southern part of the province.

But Bray said he and Smith raised that with the province and that didn't seem to have an effect on access to justice.

"One of the questions asked was, is there a problem? Is there a perceived problem in keeping that balance?" said Bray. "And there was no response. There was no suggestion there had been a problem."