04/17/2019
After 26-year career, retiring judge leaves 'tough shoes to fill'
As Court of Queen's Bench Chief Justice David Smith retires from a 26-year career on the bench, he's being lauded as an expert mediator, a champion of the family court system and an all-around nice guy.
"I have a great deal of respect for him," says Moncton lawyer Talia Profit. "He's a real gentleman and always seems calm, never fazed by anything. He's good at bringing people together and finding resolutions to matters. He will surely leave tough shoes to fill."
Smith turned 75 on Wednesday, which is the mandatory retirement age for judges, meaning Tuesday was his last day.
"I've enjoyed the job, and the camaraderie of the bench," he says. "I've had the great fortune of having a very cooperative bench – my fellow judges – and my relationship with the bar has been very cooperative, most helpful."
Smith, from Moncton, graduated from Acadia University in Nova Scotia with a bachelor of commerce in 1966 and went on to graduate with a law degree from the University of New Brunswick. He was called to the bar in 1971, appointed Queen's Counsel in 1985, family court judge in May 1993 and Chief Justice of the Court of the Queen's Bench of New Brunswick in April 1998.
He has also stayed busy outside the courthouse. Smith is a former member of the New Brunswick Parole Board and has held leadership positions in the New Brunswick branch of the Canadian Bar Association, the Moncton YMCA, the airport board, the Rotary Club and United Way.
Smith is the second giant of the Moncton legal scene to retire within the last month. In late February, Irwin Lampert retired at 75 after 31 years as a provincial court judge. Combined, the two former judges walk away with 57 years on the bench.
Along with missing the people he works with, Smith believes he will miss the "work structure" but he doesn't think it will take him long to replace it with a new structure. He will spend more time with his wife Kathy, with whom he has two sons, play some bridge, do some fishing and hunt some grouse.
When Smith looks back on his career, he says the thing he found most satisfying was helping people, in particular people who found themselves in family court, where he got his start on the bench and where he devoted a lot of his time over the years because it's such a busy area. Whether it was a spousal support matter or a child custody issue, the retiring judge says he liked being able to help people come to a resolution.
About 18 years ago, not long after he took over as chief judge, settlement conferences were made mandatory, in an attempt to resolve cases instead of having everything go to trial. He said those conferences helped a lot of people over the years and lawyers would ask about them if the court forgot to schedule one.
"It was out of necessity we brought it in because we were being overworked by cases," he says.
Sheila Cameron has been practising family law in Moncton since 1993 and she calls Smith a "tireless and stellar advocate for access to justice." She says the chief judge was critical in moving forward recommendations from a 2008 task force on improving access to family law – of which she was a member – and a few years back he helped establish a triage system for family court cases designed to keep them moving and to alleviate the backlog.
"I always felt he had a bit of a soft spot for family court and wanted to see things move faster and better," says Cameron.
She adds that while lawyers can be known for being "loud" that was never Smith's style.
"He's not, and he had everyone's respect because he's always calm and cool and forever the gentleman," she says.
That's not to say Smith couldn't roll up his sleeves and mix it up when he felt the need. In 2016 he spoke out against new legislation enacted by the provincial Liberal government that he believed compromised judicial independence.
The chief justice of the Court of Queen's Bench had the power to designate where the judges of that court reside, but the new rules meant New Brunswick's justice minister would have to consent if the chief tried to transfer somebody. Smith fought against the change but the new legislation was ultimately passed.
"That was aimed at me, there was no question I was the target," he tells the Times & Transcript.
Smith says he was never given a clear reason why the government wanted the change. He believed the justice minister holding a veto over where Queen's Bench judges could live could compromise judicial independence by making judges beholden to the province, at the same time they are presiding over civil cases involving the province and criminal cases being prosecuted by the Crown.
"My philosophy was always, a happy judge is a good judge, so if an appointment was away from family, I'd try to get them back to where their family was located," he says.
While Smith lost that fight, he's abiding by the new rule. When he transferred Justice Zoel Dionne from Moncton to Edmundston last October, after Dionne spent several years in Moncton, Smith sought and received consent from then-Liberal Justice Minister Denis Landry.
Smith says he hopes the new Tory government will change that law, or maybe his yet-to-be-announced replacement will pick up the fight.
He was asked if the fight was worth it, even though he lost.
"It certainly was because it was about judicial independence," he says.
Paul Creaghan estimates he's known Smith for about 55 years, including several years as colleagues on the bench when Creaghan was a judge from 1985 to 2012. He describes his friend as a "great mediator," a "great guy" and a "wonderful person" who will be in demand now that he's retired.
"I can't speak highly enough of David Smith," says Creaghan.
