Top judge says he wasn't breaking the law with controversial transfer

The top judge on the Court of Queen's Bench says he wasn't breaking the law when he transferred a judge from Saint John to Fredericton in December.

And Chief Justice David Smith saidhe recognizes he must follow the new provisions of the Judicature Act, despite his public criticism of them.

"This decision was certainly not intended to convey the message that anyone is free to ignore duly enacted laws with which they disagree," Smith said in a letter obtained by CBC News.

"Much as I had believed and still believe that the amendments to the Act in question undermine the independence of the Judiciary from the Executive, I recognize that this political decision has been formalized and I cannot unilaterally ignore it."

Smith's comments are contained in aletter he wrote to Justice George Rideout. The letter, obtained Monday by CBC News, was datedDec. 14, 2017.

His letter was a response to a letter from Rideout three days earlier in which Rideout called on Smith to resign for breaching the Judicature Act, which governs how the courts are administered.

The letters stem from amendments to the actthe Brian Gallant governmentpassed in May 2017. They took away the power Smith had to unilaterally transfer judges sitting on his court from one city to another.

Instead, the chief justice must now get the consent of the province's justice minister.

While the bill was before the legislature, Smith called the changes "a deliberate infringement of judicial independence."

In the letter to Rideout, Smith saidhe believes his December transfer of Justice Thomas Christie was legal, but if the decision is challenged in court and found to be wrong, "I shall unhesitatingly respect that decision."

In November, Smith sought Justice Minister Denis Landry's consent to transfer Christie from Saint John, where he was hearing cases, to Fredericton, where he lives.

Landry didn't grant consent immediately and said he would take time to consult lawyers and the federal government.

In the meantime, Christie recused himself from a legal case involving the province. He said there would be a perceptionhe couldn't rule independently while the province was pondering whether to allow his transfer.

Then, on Dec. 7, Smith told Landry that, given 30 days had gone by, he was transferring Christie to Fredericton.

'Shocked' by actions of chief justice

Rideout wrote to Smith four days later, saying he was "shocked" by what he called "a serious and grievous error" by the chief justice. Rideout sent copies of the letter to the about 30 other judges on the Court of Queen's Bench.

By moving Christie "contrary to existing law," Rideout wrote, Smith was putting all judges in a difficult position when they try to enforce the law and he had "no choice but to step down as Chief Justice."

In Smith's response, which he also copied to all his fellow judges, the chief justice argued that Christie's transfer isnot covered by the new restrictions on his powers.

The new section passed last year requires the minister's consent to "designate a new place of residence" for a judge he wants to transfer.

But, he said, Saint John was not officially designated as Christie's residence when he was appointed a judge in 2013, so the restriction doesn't apply.

"Justice Christie is already a resident of Fredericton despite having conducted sittings in Saint John," Smith wrote.

Another section of the act leaves it up to Smith "where a judge is to hold sittings," and he said that section allowed him to transfer Christie without consent.

He told Rideout he asked for Landry's consent "as a courtesy" and in a "spirit of cooperation."

He wroteit was "the lack of timely response leading to Justice Christie's recusal" that forced him to make the transfer quickly "to avoid further uncertainties before the Court."