Two years ago, Canada lost one of the best minds on its top court. Russell Brown, Supreme Court justice of eight years,
in 2023 after becoming the living embodiment of “the punishment is the procedure.” Subjected to a frivolous conduct complaint, then a frivolous
possibly-forced leave of absence
and frivolous investigation by the Canadian Judicial Council, he took matters into his own hands and retired from the bench — to the grief of the profession.
Finally, Brown has been given the heartfelt send-off he’s always deserved. Last weekend, a symposium was held in his honour at the University of Alberta in Edmonton, where he was a professor prior to his judicial career.
It was a bittersweet two-day gathering: laughs were traded with old colleagues, papers on Brown’s legal contributions were presented by appreciative academics, but bubbling up every so often was a wistful sense of what could have been. Now an arbitrator and consultant, Brown no longer wields the power to set critical precedents that affect the entire country.
Our biggest loss, made clear by those presenting papers at this symposium, was one of reasoning and restraint. Mark Mancini, an assistant professor at Thompson Rivers University often quoted by the Supreme Court, described Brown’s style as one that limits “judicial freestyle.” Brown knew to handle the Charter — and really, the text of any law — with care, which, Mancini pointed out, was important in preserving the legitimacy of the court.
The thought was echoed by University of Saskatchewan law professor Dwight Newman, who pointed to Brown’s decision in
Mikisew Cree First Nation v. Canada
. Here, concurring with the majority, Brown ruled against radically expanding the duty to consult Indigenous peoples. (Had this case gone the other way, the duty would have applied to Parliament and the process of lawmaking, guaranteeing unimaginable levels of gridlock and fuelling even more race-based politicking in Ottawa.)
Also of note was Brown’s decision in the case of
; writing for the majority with Chief Justice Richard Wagner, he ruled that the alteration of city council ward boundaries and elimination of some wards completely during a municipal election did not amount to a breach of democratic Charter rights — an example of “judicial humility,” said Newman.
And though Brown didn’t prevail in the infamous 2021
Greenhouse Gas Pollution Pricing Act references
, in which he concluded that the law was wholly unconstitutional and amounted to a fatal overstep of federal-provincial boundaries, his reasons showcased the flaws of the majority. Perhaps, Newman pondered, they even influenced the court’s subsequent decision to strike down parts of the Impact Assessment Act for failing to respect federal-provincial boundaries.
Defence lawyer and law professor Peter Sankoff, meanwhile, recalled Brown’s respect for the rights of accused persons — applauding in particular his dissent in
In this case, a majority of the court piled another mound of evidentiary complication onto the already hulking beast of sexual assault law in Canada, setting out new procedures that gave complainants the chance to prevent evidence that might discredit them from entering trial.
Brown
a number of problems with the majority’s decision: one, it simply wasn’t fair to those facing accusations of sexual assault, and two, it added immense strain to an already overloaded justice system. These concerns proved to be prophetic, Sankoff said, adding: “Sexual assaults are a quagmire right now. What used to be a one-day trial is a minimum (of) three. They’re often stretched into weeks.”
Elsewhere, Brown has been
for
, for
on a government’s ability to take personal property, for putting up
to Charter-rights creep, and for
the role of “policy considerations” in private law (a vehicle that has sometimes allowed judges to abuse their role and legislate from the bench). And, a personal favourite of mine, he
for equality over equity (“substantive equality” in legal terms) in interpreting the Charter.
“Substantive equality is almost infinitely malleable, allowing judges to invoke it as rhetorical cover for their own policy preferences in deciding a given case,” he
in a 2020 joint dissent with Justice Malcolm Rowe. “Such vast and little‑bounded discretion does not accord with, but rather departs from, the rule of law.”
But, aside from losing a man of principle from our top court’s bench, it became clear that we lost a good person from a critical institution. Former Supreme Court justice Rosalie Abella, once the top court’s foremost progressive voices, had Brown doubling over with laughter in a speech that recounted their frequent disagreements and good-spirited collegiality; differences aside, she praised his “masterful dissents” and “triumphant majorities,” ultimately describing him as “a true mensch.” From afar, current Supreme Court Justice Mahmud Jamal gave a tribute recalling their national park hikes. (Justice Suzanne Côté, another friend of Brown on the court, had been scheduled to attend but had to cancel last-minute).
And, from Brown’s academic days, University of Alberta professor David Percy, former dean of law, spoke of his colleague’s humour, his dedication as a father, his patience with struggling students and his ability to “galvanize interesting debate” both on campus and off: passionate for property rights, Brown was a loud critic of Alberta’s Land Stewardship Act, and contributed, Percy figured, to one MLA losing his seat in 2012. It was a “very serious loss when he left the faculty.”
Brown remembered his academic days with great warmth, too. The same went for his 13-month stint on the Alberta Court of Queen’s Bench and his subsequent year-and-a-half at the Court of Appeal, which he discussed in a fireside chat with Justice Rowe. But his recollection of the Supreme Court was mixed. One recurring issue? Bitter divisions.
“There were some (members of the court) you could go hammer and tong with in a judgement that reflects differences in methodology, and then go have scotch…. But then there were some who just took it very personally…. You don’t know what it is you’re supposed to do about that…. You try to be kind outside of the context of judgments, you have lunch with a colleague, you inquire (about how they are).”
Where those differences in perspective were, we can only guess. Brown, ever principled about the limits of judicial power, remarked at one point during the symposium that the court is not a democratic institution; rather, it supports democracy and gets its legitimacy from its reasoning. Speaking to Rowe, he noted the importance of tuning out criticism and focusing on the work of the court.
It’s a stark departure from the perspective of Chief Justice Wagner, who
judge-directed criticism as a somehow dictatorial threat to democracy, and who spends a
amount of energy marketing the court to outsiders as its productivity falls.
It was somewhere in this setting that Brown was railroaded off the court. In January 2023, the justice was
at an Arizona resort by a former U.S. marine who claimed to be defending his female companions from harassment. Brown denied harassing anyone, and his legal team accused the marine of weaponizing the discipline process: the ex-marine, whose allegations were “fraught with glaring contradictions,” had failed to have police charge the judge with anything (a call that was reinforced by the opinion of a former Arizona chief justice, who found no basis for a charge in an opinion provided to Brown).
The case against Brown was so thin that he
at the time, it would be quickly dismissed. Instead, he was sidelined in February 2023; the chief justice claimed this was a mutual agreement, but Brown’s lawyer didn’t agree with that characterization. Many were disappointed when he resigned in June 2023 after months of exile,
, but perhaps this humiliation march through a bureaucratic obstacle course was the last straw.
What is certain is that Brown is happy where he is. Working in arbitration and mediation, he’s been able to take a new interest in the law and continue to innovate on different fronts. “I’m really enjoying being surrounded by good lawyers,” he told the symposium. “Smart, earnest, motivated lawyers.” Whatever clouds hung over him in Ottawa, it’s good to see he’s under clear skies now.
National Post
