Supreme Court of Canada Justice Russell Brown responds to a question during a question-and-answer session at Canadian Museum of Human Rights in Winnipeg in 2019.John Woods/The Canadian Press
Russell Brown has resigned from the Supreme Court of Canada, choosing to step down rather than face a public hearing over allegations he harassed women in an Arizona hotel in January. It is the first time a justice on the country’s most powerful court has quit over a misconduct claim since a public complaints process was created in 1971.
Mr. Brown issued a defiant statement, saying his accuser made false allegations to avoid being charged himself for assault. “Because the allegations made against me are false, I had hoped this issue would be dispensed with quickly and would not significantly impact the Court’s business,” Mr. Brown said.
“Sadly, that has not been the case.”
The resignation of the 57-year-old judge, a 2015 appointee of Stephen Harper, means the loss of a strong conservative voice urging restraint on a court known for its liberal rulings. He accused his more liberal colleagues of expanding the rights in the Charter of Rights and Freedoms to suit their own biases. He helped expand property rights, and supported a proposed Christian law school’s right to ban gay sex among its students, He also defended the rights of the criminally accused from what he deemed unfair police or prosecution powers.
With Mr. Brown gone, Prime Minister Justin Trudeau has an unexpected opportunity to pick a replacement, bringing the number of Trudeau appointments to six of nine on the country’s top court. By convention, the judge is to be from the West, because Mr. Brown was an Alberta judge.
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Supreme Court Chief Justice Richard Wagner urged the Prime Minister in a public statement “to exercise promptly the necessary care and consideration” in making the appointment. The court will next begin hearing cases again in the fall.
Mr. Brown, a father of two, said he was resigning because a complaint against him had taken him off the court for four months already and the disciplinary process would likely have lasted until 2024, straining the court, his family and himself.
But he said he and his legal counsel, Brian Gover, believe the allegations would ultimately have been dismissed – the standard is whether he lost the confidence of the Canadian public – and pointed a finger at his accuser, former U.S. marine Jonathan Crump, with whom he had a violent altercation that was investigated by police at the time.
“The person who punched me was described later by police as ‘argumentative, hostile [and] antagonistic,’ " and who “began swearing profanities,” Mr. Brown said in a statement released by his counsel. “The officer concluded that this was due to intoxication. The complainant apparently complained to both the police and the Canadian Judicial Council, in the words of one of his companions, to ‘get ahead of it,’ apparently to avoid the legal repercussions of his actions.”
Mr. Brown became a Supreme Court judge at the youthful age of 48, after being an appeal court judge, trial judge and law professor in Alberta. His mandatory retirement date would have been in 2048. His salary as of April 1 was $456,900 a year.
Mr. Crump didn’t respond to multiple requests for comment. The Globe and Mail reached a work colleague of Mr. Crump, Jack Pagliarini, at i Fund Cities, an alternative lender. “He has nothing to say,” Mr. Pagliarini said.
Mr. Crump had told Officer Adam Balcom from the Paradise Valley police department in Arizona that Mr. Brown was drunk and trying to follow two women into their room, and that he punched Mr. Brown twice to stop him. The two women said they were glad Mr. Crump had been there. Officer Balcom said he tried and failed to contact Mr. Brown, and told Mr. Crump his actions were legally justified when he punched Mr. Brown.
The officer said he had no grounds to charge Mr. Brown either, whom he described as “just some creepy guy.” (The police released body-cam footage and a written report at the time.) The two women said he touched one of them on the leg and kissed one on the cheek or neck, but they told Officer Balcom he had not touched them in a sexual way.
Last Thursday, the Canadian Judicial Council was set to announce it would be holding a public hearing into the allegations, but delayed releasing its decision to give Justice Brown time to consider his options.
The council has the authority to recommend a judge’s dismissal. Since the council was established in 1971, it has recommended five federally appointed judges be dismissed, but none from the Supreme Court. Mr. Brown’s resignation means the council, a disciplinary body, no longer has jurisdiction over him and cannot rule on the complaint made against him. It is not expected to release the reasons a review panel of four senior judges and a layperson decided to order a public inquiry into his conduct.
Chief Justice Wagner placed Justice Brown on paid leave on Feb. 1 but did not publicly announce the step. The court is permitted to sit with as few as five judges on a case and Mr. Brown’s absence did not become apparent until the court released a decision on Feb. 17 with an asterisk beside his name, indicating he had heard the case but did not participate in the ruling. It was the judicial council, not the Supreme Court, that first revealed, on March 7, that a complaint had been filed.
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No Supreme Court of Canada judge has ever faced a judicial council hearing.
Chief Justice Wagner’s decision to place him on leave came after the judicial council informed him of the complaint from Mr. Crump. Justice Brown had given a speech at the Omni Scottsdale Resort & Spa at Montelucia to introduce former Supreme Court judge Louise Arbour, who was receiving an award named after the first woman on the U.S. Supreme Court, Sandra Day O’Connor.
Peter Sankoff, a law professor at the University of Alberta, where Mr. Brown used to teach, described himself as a friend for 20 years. He called Mr. Brown “a great human being who loves people, and I’m deeply saddened that this is what most Canadians will remember: an unfortunate event with disputed facts that are still not fully known, but will probably be decided against him in the court of public opinion by assumption.
“I have no doubt that Russ felt, at least in part, that this just couldn’t go on, and that ‘vindication’ in a public inquiry would ultimately be a hollow victory, even if it could be secured.”
Ellen Anderson, who wrote an authorized biography of the first female Supreme Court justice, Bertha Wilson, said the resignation “should contribute to preserving the dignity and reputation of our Supreme Court, making it possible to move forward with appointment of a ninth judge.”
She added that from the judge’s perspective, “there will now be no need for a report from the Judicial Council probe which might have caused him some concern.”
Jamie Cameron, professor emeritus at York University’s Osgoode Hall Law School, said Mr. Brown will be greatly missed and difficult to replace.
“Russell Brown is an intellectual workhorse, whose thoughtful and provocative opinions on constitutional law and the Charter brought great depth to the Court’s discourse and jurisprudence. If he was at times pugnacious at hearings and in his written reasons, it was because he saw complexity on questions of principle, and would not compromise,” she said.
Andrew Bernstein, a Toronto lawyer, called Mr. Brown’s resignation a loss for the court.
“Appearing before him was always daunting and also inspiring: His questions were very intellectually rigorous and your answers needed to be too. His decisions are both extremely readable and make the law clearer.”