The shocking resignation of Russell Brown

Late yesterday Supreme Court justice Russell Brown announced his resignation from the Court, putting an end to an ongoing Canadian Judicial Council investigation into a complaint about Brown’s alleged behaviour at a bar in an Arizona resort in late January. Brown has been on leave from the Court since February.

In statements by Brown (pdf) and his legal team (pdf), Brown continues to maintain that the allegations against him were false, and that the legal team was confident the CJC process would end with him exonerated. However, Brown indicates that the lengthy process was unfair to his family and to the Court, and so his resignation serves “the common good” by moving us all past this.

A number of implications flow from this whole affair. One is that - typical in all facets of Canadian governance - we have a fundamental lack of transparency surrounding what the CJC was prepared to do. Media reports indicate there was about to be an announcement about public hearings and the implication is this prompted Brown’s decision. Professor Amy Salyzyn questions whether the Judicial Conduct Review Panel had prepared written reasons and a statement of issues to be considered by the Inquiry Committee, as required by the CJC bylaws, and whether these reasons would be released.

It appears as though we won’t, in fact, hear anymore from the CJC on this. Brown is no longer a judge, and the CJC suggested in its statement that this puts an end to its jurisdiction over the matter.

Canadians should find this rote secrecy unacceptable. A respected Supreme Court judge has resigned, maybe for the reasons stated, or maybe because there was something the CJC knew that we don’t. The Court has been without its full complement for months, and has already issued or heard several important decisions without the benefit of a full bench. The CJC may have been being exceptionally rigorous and careful on this matter, but it has also been interminably slow. From what we know, there are but a handful of witnesses, a police report, and some video. This was hardly the public inquiry into the Emergencies Act invocation, and yet the CJC seems to have plodded slowly in its multi-stage process - and at the end of the day, Canadians will get no illumination on an incident that topples a top court judge?

What are the implications for the Court? First, they lose a strong and distinctive voice. Brown was a zealous advocate for legal rights. Here, his legal consistency defied an obvious conservative ideological bent: in the name of the rights of criminal defendants he was both in the majority (which included some of the Court’s progressive wing) in R v Jordan on unreasonable trial delay, but has also opposed laws expanding the rape shield in the interests of fair trial rights. From a constitutional perspective, Brown was a key voice on a Court divided over its general approach to interpretation, favouring one more rooted in the constitutional text than the more liberal or broader structural interpretation. His joint majority reasons with the Chief Justice in City of Toronto v Ontario was a fundamental antidote to an expansive vision of ‘unwritten principles’ as free-floating legal tools for courts to effectively rewrite the constitution.

Second, there is the threat that this incident will spark renewed partisanship over Supreme Court appointments in Canada. We already have deeply misguided op-eds about that evil Trudeau guy getting to further stack the Court with activist liberals (never mind that the specific examples of activism thrown at readers at the top of that piece occurred under a Court dominated by Harper appointees). We desperately need to avoid the Americanization of the appointments process: one polarized by ideological and partisan affiliation.

My claim here isn’t that politics doesn’t affect the Court or appointments to it. Rather, that Justin Trudeau’s appointments have been every bit as reasonable as Stephen Harper’s. Putting aside the Marc Nadon imbruglio, Harper’s appointments were fundamentally reasonable. Yes, politics comes into play: he avoided appointing outwardly progressive justices like Rosalie Abella. But there were hardly any rabid Antonin Scalia-like judges roaming those halls after eight Harper appointments either. Similarly, while Trudeau has - overall - appointed judges with a more progressive attitude, he also appointed Malcolm Rowe, who is a solid member of the small conservative bloc on the Court (with Brown leaving, it’s down to Rowe and Côté). And another recent appointment, Mahmud Jamal, seems like a perfectly moderate voice thus far.

We must remember that Trudeau also brought in a new appointments process that mitigates the Prime Minister’s ability to ‘stack the court’ - the independent advisory committee [full disclosure: I was one of the people the PMO consulted on this when it was first designing it] recommends a set of names to the PM, a list from which the PM makes the final appointment. This should increase our confidence that the process cannot be overtly tainted by partisanship - however, that depends on the Conservative opposition from remaining minimally responsible and principled over the next few days, weeks, and months. We’ll see.