Tuesday, May 24, 2016


Bill 21, the Gallant government’s bill to limit the ability of the Court of Queen’s Bench to manage the placement of judges, is a brief piece of legislation that raises a number of questions.

Those questions are, specifically, “What the hell?”, “Why?”, and “We need this because….?”

To those exclamations of bafflement, we may now add a fourth, courtesy of two cabinet ministers Stephen Horseman and Don Arsenault.  That question is “What were they thinking?”

Let's recap recent events, which have done nothing to enhance the already-shaky reputation of the Gallant government for being able to pick its hindquarters out of a police lineup surrounded by holes in the ground. 

Near the start of the legislative session, the government introduced Bill 21.  The Bill proposed an end to the power of the Chief Justice of the Court of Queen’s Bench to move judges to new judicial districts and require them to establish residence within 50km of their domain. From now on, should the Bill pass, a judge could only be moved if the Minister of Justice and the judge themselves agree. 

The problem arose when the Chief Justice of the Court, Mr. Justice David Smith, stated that he had not been consulted on the Bill and that he considered it an affront to the principle of judicial independence. The government had consulted with the acting Chief Justice in his absence, but the Chief Justice’s reaction was clearly negative.

The curious part of this chapter is the complete and utter inability to articulate why the Bill was needed.  The Chief Justice articulated his concerns with the Bill so that, whether one agrees or not, one can know why he has arrived at his position.  For the government’s part, it appears that Bill 21 somehow made it through drafting, cabinet, committee and three readings without anyone caring about it, a kind of Immaculate Legislation.  The Justice Minister allowed that he could not think of a single example of where he would use these new powers to override the Chief Judge, and no one from the government seemed eager to provide a statement of why the Bill was needed. 

When governments are determined to have a Bill pass over serious opposition, but won't say why, people get suspicious. It is like having your teenage son ask repeatedly if you'll be out of town any weekend soon, but when asked why he cares says “Oh, no reason.”  It gets people on alert. So the Bill was already under a spotlight when the Legislature reconvened for a rare event which old people will someday fondly recall as “legislative sittings, before that young Gallant took over.”

As the Bill was being debated, the government decided that Energy Minister Don Arsenault should speak. This was a curious choice. Not only is his portfolio miles away from the matter at hand, but Don is not known as a politician with a deep appreciation for the subtleties of legislation. 

However, Don Arsenault began to address the historical tradition of judicial independence.  Asking him to do this is like hiring Tinsel, the Balloon Animal Clown, for your kid’s party and then asking him to juggle meat cleavers. He's not had much practice, and there is significant downside. 

Mr. Arsenault launched into what can only be described as a screed. He read a list of the 13 transfers of judges’ locations that have happened on Chief Justice Smith’s watch, predictably said this harmed the North to the benefit of Moncton.  He seemed particularly to focus on judges appointed by Conservative governments (which I hasten to add, is not the same as “Conservative judges”). The Minister then added a truly bizarre twist, claiming that Madame Justice Marie-Claude Blais may wish to move from Moncton, and that this would likely be arranged “between friends” as the other 13 moves had been. 

Where friends meet, some say.  OK, Don Arsenault says.

If there was any proof of any of this, it remained within the fevered mind of the Minister. A lawyer representing Chief Justice Smith soon pointed out that this seemed to be a lot of defamation without proof. He also corrected the record on a few fronts, including the fact that the Minister claimed that the Acting Chief Justice had approved of the changes when she actually had warned they might be unconstitutional. 

Two days later, in Question Period, the Justice Minister added another bizarre chapter to the saga. Asked about the Bill, he noted that the government was finally "including judges” and that a number of judges had called him with their support for the bill, out of fear of being involuntarily moved. 

Later, as questions began circulating about the propriety of speaking with judges, the Minister called at least one reporter to say that he had “been unclear” when he claimed that judges had called him, and that no judges had ever called him. Some unnamed judges  had, however, approached him at unnamed social  functions to express their delight at Bill 21.

And this is where the sage ends for now, with Ministers tying themselves in knots to pass an absolutely essential bill that will avoid an unspecified harm and be used in situations that it's sponsor cannot imagine. 

The Facts On Judicial Moves

The CBC’s Jacques Poitras helpfully reported on the 27 instances in a quarter century where judges have moved judicial districts. Breaking these down may help separate fact from spin. 

To understand this, know that there are eight judicial districts in New Brunswick, as fixed by regulation (which means cabinet could change this without legislative approval). To be a judicial district is to be assured, by legislation, that at least one judge must be assigned there and by law establish a residence within 50 kilometres of the court in that city or town. The 24 full-time judges of the Court of Queen’s Bench are right now broken down between the 8 judicial districts as follows: six judges sit in Moncton and Saint John, four sit in Fredericton, two each in Miramichi, Bathurst and Edmundston, and one each in Woodstock and Campbellton. 

When there is a vacancy due to a departing judge, the federal government may appoint a judge. The appointment will generally specify a judicial district.  

If we look at the 27 judicial moves we could think of a region “gaining” or “losing” a judge, in one sense. If you wanted to do that analysis, for instance, in the case where Mr. Justice Bruce Noble was moved from Saint John to Fredericton, you could say that Fredericton “gained” a judge and Saint John “lost” one. 

If you did that analysis, you would find that almost every judicial district had gained and lost a judge at some point. The largest net “gainers” would be Moncton (+6) and Fredericton (+4). However, contrary to the government’s expressed concern for Northern New Brunswick, the outflow is not from the Campbellton, Bathurst or Edmundston centres. The largest net “losers” are actually Woodstock (-4) and Miramichi (-3). In fact, the most common moves are Woodstock to Fredericton and Miramichi to Moncton. 

You will also notice that I put “gain” and “lose” in quotation marks. This is because almost none of these moves (I can't find one for sure, but I can't trace every move) actually alter the number of judges in a district. The Judicature Act already protects smaller districts because they must have a judge.  So if a judge moves from Campbellton to fill a vacancy in Edmundston, the result is that now the new judge will be appointed in Campbellton. 

Of the changes that have occurred since I joined the bar in 1998, of 50% appear to be “repatriation” moves, where a judge is returned to the place where they lived prior to appointment. For example, the fact that Mssrs. Justice Noble and Morrison moved to Fredericton seems to simply be a case where they were appointed by the federal government to a place where they did not live, and they moved back to Fredericton once a vacancy appeared there. Far from any great conspiracy, it seems to be usually quite simple. When vacancies arise, there may be judges that are high on the list of the federal government. To get them into the judiciary, they will often be appointed wherever there is a vacancy, serve in that new center, and then ask to go back to their original home when there is a vacancy. 

This is not a bad thing. For one, it allows new judges to start in smaller centres and then go to the larger districts as they gain experience. Most (though assuredly not all) complex litigation will be filed there, if only because that's where larger businesses and governments exist. As well, lawyers are even more concentrated than the general public in larger centres. That's not to say that good lawyers come from big cities, only that many good small town lawyers still prefer to go where the potential clients are. And the lawyers who like to do the work that often (though not always) predicts an interest in becoming a judge often wind up in government, at universities, or at big firms that allow complete specialization are even more disproportionately in the big cities. 

Again, that's not to say there aren't excellent lawyers and potential judges in small centres. There are. They are just disproportionately clustered in big centres, and if all lawyers are equally good, the place with five times as many lawyers will have five times as many lawyers who would want to become judges. 

So, to conclude, changes never really result in a region losing a judge. They may see a more experienced judge go to a bigger centre to either return home or expand their professional challenge, and a new judge gets appointed to fill the old vacancy. It's hard to see the public harm in that. 

Judicial Independence

You may reasonably ask why everyone is so big on judicial independence. Put simply, it is a hallmark of a functioning democracy. To keep disputes from being settled by force, systems need a way of settling them that is credible, so that even when we lose we accept the process. People who come before judges need to believe that they will have their cases heard on the merits. Part of that is how the judge comports themselves – judges avoid comments or interference in politics so that we do not perceive that they may be judging based upon ideological or partisan interests. As an example, look at the recent school closure cases. The judges took great pains to explain that their decision had nothing to do with whether the government made the right policy choice, only if the rules were followed. That is how it works.

The other part of this is that politicians need to do their job and stay the hell out of situations where they can be perceived as influencing judges.

When I was Justice Minister and Attorney-General, I often got calls from people asking me to step in, to see that charges were brought against someone, or that a custody hearing went their way, or some bad decision be set right. It didn't always make me popular, but my job was to make it clear that I could not do this. While it may be tempting to think of an all-powerful minister who sets things right, this can destroy the system long-term.  If you get charged with a crime or lose custody of your child because the complainant lives in the A-G’s riding or threatened to go to the media, that will destroy faith in the system. So I would explain their rights, offer any advice I could on getting legal help, and even tell them how to complain to the Judicial Council of they felt a judge was unfair. 

In other words, ministers have to take care not to give the appearance of trying to influence judges. This includes using their ability to get media – you cannot give the appearance that you will open a judge up to public attack or ridicule if their actions displease you. 

The Dangers With Don’s Words

While Minister Horseman has made the more easily-understood breach, Minister Arsenault’s intentional trashing of the Chief Justice raises more serious issues.

For starters, the Minister abused his parliamentary immunity in the extreme.  I see nothing in his statements that looks like even an attempt to offer proof for what are serious allegations that the Chief Judge has improperly managed the judicial system based upon improper considerations, “among friends”.  He has made allegations that are demonstrably untrue on the facts regarding judicial transfers. And he has impugned Madame Justice Blais by suggesting based on no proof at all that she is angling for a move and conspiring with the Chief Justice, which could undermine faith in her ability to adjudicate disputes in Saint John. 

If the Minister has proof of this, he has the duty to raise the matter with the Judicial Council, a neutral body that can hear complaints where actual proof and argument can be made. If he is too cowardly to take his words there to be evaluated, he must withdraw them fully.

If he will not do this, it is a tacit admission that he has tried to intimidate the Court.  He sent a message that if a judge displeases him, he will use his legislative immunity and public profile to launch attacks on that judge. For judges who may hear cases involving the government, knowing a minister may do this with impunity could be perceived as having a chilling effect on the courts. I don't expect Don Arsenault to learn this at this point in a political career that has largely been built upon not knowing things that might make him a less-willing attack dog. But Brian Gallant and Serge Rousselle have professional duties to change his actions, if not his mind. He has embarrassed them, or at least they should be embarrassed. 

If there are politicians named Donald who don't make up accusations, please come forward.

Minister Arsenault has also failed in his fiduciary duty to the government he is part of, because he may have singlehandedly given courts a reason to overturn his government’s law.  Minister Horseman may not be able to articulate a motivation for Bill 21, but Minister Arsenault did.  However, the one he articulated is not a proper one. By raising Madame Justice Blais’s name, he suggested that the point of the Bill for him is to make sure that a former political foe cannot move if she wants to. He didn't articulate why the would be a public interest in this, either, it seems simply to be based on personal and political animosity. This is, of course, a completely improper reason for a bill, and legislative immunity does not mean that it cannot be introduced as evidence in a court challenge. 

If the Premier is too weak to fire this Minister, both for undermining the justice system and blowing up his own government’s legislative agenda, then he is not really in charge of government. 

The Curious Case of Minister Horseman

Everyone gets the obvious problem with Minister Horseman’s comments. It was false. You don't need me to explain that saying you got more than one supportive call from judges is a lie if you actually got zero calls from judges. You also can apply your own test to his later claim that he was simply “unclear”.  To be unclear means that your words can bear more than one interpretation.  I do not know of another meaning for what the Minister said. 

In the Parliamentary tradition, members are given immunity from being sued for libel, but this isn't a free pass. The price is that they have a high duty to not deliberately mislead the House. The reason rules don't allow a member to accuse another of lying in debate is because it is a serious breach of a member’s responsibilities, and can must be raised and reviewed by a Committee on Privileges for discipline. (The reason you can't just say it in debate is the same reason Arsenault can't just accuse the Chief Judge of misconduct in debate – in both cases, if you're not ready to raise a formal complaint and prove it, don't throw the accusation around).

It would be hard for Speaker Collins to rule against an Opposition privilege motion that the Minister misled the House. 

But we all know a lie.  What may be less obvious is the breach of duty that Minister Horseman committed as Justice Minister. 

In the parliamentary system, Chief Justices speak for the Court on administrative matters and he and the Minister may rightly discuss those matters. Ministers should not be engaging in discussions with judges otherwise. To discuss the Bill with judges other than the Chief is to engage in interference with the operation of the Court. To speak of its merits could be seen as improperly engaging judges on a matter that might be the subject of litigation.  The U.K. a ministerial guide makes this clear.

A number of Canadian ministers, and others in the Commonwealth, have resigned due to phone calls with judges on improper matters. Jean Charest, David Collennette, John Duncan, John Munro, Irish Minister Bobby Malloy – all resigned to be honourable after making a mistake and calling judges.

If the Minister thinks that changing the talk from a call to a conversation changes that, he is wrong. After all, it isn't the phone that mattered in those cases, it is the improper conversation. If someone was discussing a bribe, for instance, it doesn't matter if it is by phone, in person, over Skype or by passed notes.  It is the substance that is wrong. The same is true here. The Minister should have ended those conversations, not cited them. 

Further, it is hard to believe a judge would start that conversation, because legally-trained people know better. The Minister has not only accused judges of starting potentially-improper conversations, by refusing to provide details he has impugned all 24 judges. 

The Minister needs to provide details of these alleged encounters promptly. And if he indulged those calls, he should step down at least briefly. If he lied about them, he should step down for quite some time. 

A Question of Honour

These rules can sometimes seem harsh, when a generally well-meaning person like Stephen Horseman is involved. But ministerial resignations for serious breaches are a tradition because they recognize that a minister’s ambition cannot be more important than the integrity of the system.  Duties to protect private information, respect judicial independence, keep budget details secret to protect investors – when these are breached a minister steps down even if they didn't mean any harm.  As Bernard LeBlanc said when he resigned after a staffer used his personal account to send private information, it is a question of honour to show respect for the system.

It is tempting, in a partisan atmosphere, to try to dodge consequences. But governments are not supposed to care only about the game, but about the integrity of democracy. They are guardians of something bigger than themselves. 

The Premier has watched his members applaud colleagues for what are attacks on the judicial system. It is not clear he understands or opposes this, because he has dodged the issue thus far. Yet if he does not act, or if he tries to shuffle the two men to new cabinet jobs without consequence, he will be telling us volumes about his character. Even in the heat of politics, democracy depends upon respect for certain lines that should not be crossed.

History has a way of outlasting ephemeral power, and this premier is young enough that he will live to read early drafts of history’s judgement of his charge. If he stays silent, this episode will someday be a prominent exhibit in the story of a premier too callow and too weak to defend the rule of law he took an oath to uphold. His name will likely be a cautionary tale of one leader who forgot the warnings of Alexander Pope for those who try to ignore ethical lines.

Fools! who from hence into the notion fall 
That vice or virtue there is none at all.
Is there no black or white? Ask your own heart, and nothing is so plain
’Tis to mistake them, costs the time and pain.

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