Supreme Court Justice Russell Brown is under investigation by the Canadian Judicial Council after a violent altercation in an Arizona hotel in late January, and an allegation he harassed women.Adrian Wyld/The Canadian Press
As the discipline process involving Supreme Court Justice Russell Brown unfolds, the court will feel his absence in major new cases on sexual assault and freedom of information this spring – but also in a dozen cases heard as far back as last September.
Justice Brown, 57, is under investigation by the Canadian Judicial Council after a violent altercation in an Arizona hotel in late January, and an allegation he harassed women. Chief Justice Richard Wagner put him on a paid leave of absence on Feb. 1, after the council informed him of the complaint.
Extricating Justice Brown from cases he heard but that have not yet been decided will have a number of effects for the court: the possibility of a tie vote in any or all of the 12 cases; the reassigning of judgments he was to have written; the inevitable delay of releasing those judgments; and the loss of his distinctive, forceful and largely conservative approach to major national issues.
On Thursday, two months after the complaint was filed, the Canadian Judicial Council announced it would establish a five-member review panel to determine whether a public trial should be held, which could lead to a recommendation for Justice Brown’s removal from the bench.
Even setting up such a panel usually takes about a month, said Doug Mitchell, a Montreal lawyer who has been “presenting counsel” for the CJC in two disciplinary cases.
“A lot of thought goes into making sure there’s no conflicts, no appearance of conflict,” he said.
The final stage, if it goes that far, would be for a panel of judges to hold a public inquiry into whether Justice Brown should be dismissed. The process takes time, Mr. Mitchell said, because so much is at stake, for the judges personally, and for the institutions and the public they serve.
“The immediate consequences and discomfort for Judge Brown and anyone else involved in the process is unfortunate, but the test of the institutions is ultimately how they respected the processes,” Mr. Mitchell said.
The Globe reviewed webcasts of all hearings since the Supreme Court heard two matters in Quebec City in mid-September, as part of an exercise in bringing the court to Canadians outside of Ottawa, where it is based.
Justice Brown sat on 12 cases for which no decisions have been released. Those include a challenge to the constitutionality of Canada’s Safe Third Country Agreement with the United States, involving asylum seekers. Eight refugee claimants and several advocacy groups argued that the U.S. poses a risk of detention, and a return to persecution or torture in other countries.
Another major undecided case is about the right of Indigenous peoples to write their own laws for child-welfare services. Ottawa gave such laws the force of federal law, meaning they supercede any provincial legislation covering the same topic. Quebec called that a violation of provincial jurisdiction.
Since he was placed on leave, the court has released two rulings in cases heard by Justice Brown, a 2015 appointee of Conservative prime minister Stephen Harper. Both carried an asterisk beside his name, denoting that he did not participate in the rulings.
The Globe asked Chief Justice Wagner’s executive legal counsel, Stéphanie Bachand, to confirm that Justice Brown will not be participating in any of the dozen cases he sat for that have not been decided.
“The Court will not be commenting on upcoming judgments,” she replied in an e-mail. She also declined to say whether Justice Brown has been instructed to stay away from his court office.
The court has scheduled eight cases this month and next.
In May, the court will hear a sexual-assault case from British Columbia in which the Court of Appeal threw out a conviction, saying the trial judge found the complainant credible on the basis of a faulty assumption about women.
The court has sided with the prosecution in 38 consecutive sexual-assault cases over the past five years. In 15 of those, it overturned appeal-court rulings. Justice Brown is one of just three judges to dissent more than once during those 15 cases. In one case last year, he said the majority had backed “a formula for wrongful convictions.”
This spring, two important cases for freedom of information will be heard. One, on April 18, involves an attempt by the Ontario cabinet to keep secret the mandate letters Premier Doug Ford has given his ministers. The second, on May 16 and 17, involves two cases in which judges imposed publication bans on pretrial applications, before juries were chosen. A media consortium is challenging this use of a publication ban.