Transparency, the Supreme Court, and allegations of misconduct against Justice Brown

The Canadian Judicial Council (CJC) is conducting an investigation based on a complaint against Justice Russell Brown over an alleged altercation at a resort bar in Arizona in January. In his own statement, Justice Brown acknowledges an altercation took place but rejected claims he was the instigator. [Update: there is now a new CTV report providing further allegations, including that Brown engaged in unwanted touching and kissing of women at the table: see CTV’s lead report here - I have now made edits to this post in light of this new detail]

What’s interesting is that both the complainant’s account and Brown’s reveal that it was Brown who was punched repeatedly. The police report only confirms that it was the complainant who appeared “intoxicated” and “hostile”, according to the Vancouver Sun report in the first link above. The two accounts seem to agree on other facts, such as that Brown had been invited to a table that included the complainant and that their primary interaction occurred only after the group left the bar (for his part, Brown reports having no interaction with the complainant while at the table).

There are a number of major issues that arise from this whole affair. The first concerns transparency: a measure at which the Court and most other Canadian governing institutions routinely fail to meet even by the lowest reasonable standards. The Court’s recent statement on this matter confirms that Justice Brown was “placed on leave” as of February 1. The public would not learn that Brown was even missing from work until a decision published February 17th indicated he did not take part in the judgment despite having been present for the hearing. At the time, many observers, including myself, assumed this was due to a private personal issue, such as a possible health or family emergency.

Only after the CJC released a statement weeks later, following a brief statement from the Court, did we learn that Brown was under investigation due to a complaint about his conduct and that he had been placed on leave. And not until the Vancouver Sun report did we hear any details about the nature of the complaint, followed by Brown’s own statement.

The Court’s initial radio silence on Brown’s absence should be regarded as completely unacceptable. I’d go so far as to say the Court should apologize to the public for failing to meet minimum standards of transparency and accountability. The public may not have the right to know any details about the health, or personal lives, of the judges. But when someone in such a powerful office is even temporarily prevented from performing their duties as a result of a complaint about conduct, the public has a right to know. It may be appropriate to leave out details about the nature of the complaint, especially if making them public might impact an investigation, but the fact of the complaint and the leave of absence should have been disclosed by the Court immediately.

A second issue arises from the details of what we now know. Unless there are major facts still to come [edit: and, as per above, they have!], it is a bit surprising that Brown was ‘placed on leave’ and that the investigation is taking this long.

We need to hold public officials - especially those holding high office like Supreme Court justices - to a higher standard. At the same time, however, we can’t hold them to an impossible one. And for the most part, what we know at the time I’m writing this is that Justice Brown was punched by a hostile drunk guy outside a bar. The allegation is that he was following people out of the bar and was an unwanted presence. The complainant’s account also suggests it was Brown who first instigated contact with a shove. Still, it’s a bit curious why this investigation is dragging on at this point (unless, of course, there’s more to it). [Edit: all of this should now be placed in the context of the additional allegations in the report, noted above].

We’re also not completely clear on what the Court means when it says Brown was placed on leave. The Judges Act indicates that the Chief Justice has the power to authorize a leave of absence but it doesn’t seem to say anything about a power to place a judge on leave. My assumption is that CJ Wagner and Brown had a conversation and Brown agreed to the leave. This process would reflect perhaps an abundance of caution and propriety while an investigation was underway.

But we are now a month-and-a-half into the leave of absence, with some important cases upcoming. Brown is an important voice on the Court, a Court that in recent years has an abundance of divided decisions. In other words, Brown’s absence might actually be decisive in some cases. We should not underestimate the impact that this complaint might have, and given what we now know, we might be concerned that this incident wasn’t serious enough to warrant such a lengthy leave of absence. [Edit: again, it turns out there is an element of the complaint that includes allegations far more serious than the initial Vancouver Sun report].

It’s important to acknowledge that we don’t know what we don’t know. Yet this is part of the reason to be critical of the Court’s initial approach to this whole affair. Justice Brown’s initial absence could only be met with speculation. The CJC statement that he was under investigation, without any disclosure of the nature of the complaint, only invited further - more troubling - speculation. The lack of disclosure over these details is therefore a double-edged sword. What is clear is that the Court failed to meet even the minimum standards of transparency here. It raises the spectre that the next time something happens, the public will have grounds for not trusting the Court or for assuming the worst. The effect is that the Court, through its silence, has done damage to its own credibility.