Supreme Court Justice Russell Brown looks on during his welcoming ceremony at the Supreme Court in Ottawa on Oct. 6, 2015.Adrian Wyld/The Canadian Press
Legal observers say the Canadian Judicial Council is harming the public’s trust in judges by its secrecy and should release its report ordering a public inquiry into the alleged conduct of Russell Brown, who resigned last week from the Supreme Court of Canada.
The resignation of the 57-year-old, the court’s most powerful conservative voice, came after the disciplinary body delayed the release of its report to give Mr. Brown time to consider his options. His resignation was the first of a Supreme Court judge under investigation since the council of chief and associate chief justices was established in 1971.
And yet, says Ray Adlington, a former president of the Canadian Bar Association, the public does not know why the council ordered a public hearing – the order that precipitated the resignation.
“Canada can only continue to claim to be a land where the rule of law applies if we protect and maintain the openness of our courts so that public confidence in the integrity of the system is preserved. Personal embarrassment to Justice Brown is not a sufficient reason to depart from this fundamental principle,” he said.
The day after Mr. Brown resigned, Supreme Court Chief Justice Richard Wagner stressed the need for greater transparency from the judicial council, which he chairs.
Citing Chief Justice Wagner’s words, Toronto lawyer Gavin MacKenzie said the report should be made public.
Mr. Brown “was still a judge when the report was completed, with the intent that it be made public, and the public has a legitimate interest in knowing why the review committee decided” to order a public inquiry, said Mr. MacKenzie, author of Lawyers and Ethics: Professional Responsibility and Discipline, a textbook regularly updated for practitioners and students.
Mr. MacKenzie raised the question of whether the decision not to release the report resulted from any negotiation between the judicial council and Mr. Brown’s counsel.
Brian Gover, Mr. Brown’s counsel, declined to answer whether such negotiations had taken place. “We do not anticipate saying anything further about the process,” he said in an e-mail to The Globe and Mail.
The decision to order the inquiry was made by a five-member review panel chaired by Quebec Court of Appeal Chief Justice Manon Savard, and including judges from Saskatchewan, Manitoba and New Brunswick, plus a layperson, Pierre Riopel, chair of the University of Sudbury’s board of governors. The panel’s members are a matter of public record.
The complaint against Mr. Brown has been shrouded in secrecy from the beginning. The Supreme Court did not announce his absence when Chief Justice Wagner placed the judge on paid leave on Feb. 1.
Five weeks later, the judicial council said that to protect public confidence, it was announcing it had received a complaint against Mr. Brown, but did not reveal the contents of the complaint.
Eventually, a police report and body-cam footage from the Paradise Valley police department in Arizona surfaced, including witness interviews with women who described Mr. Brown as “creepy.” Police laid no charges, and Mr. Brown says the allegations of harassment are false. The complaint came from a former U.S. marine, Jonathan Crump, whom Mr. Brown says assaulted him.
“The two versions of the facts in the public domain are virtual polar opposites,” said Archie Kaiser, a professor at Dalhousie’s Schulich School of Law in Halifax.
“We do not have an account of why the panel believed the issues were so clearly delineated that a public inquiry was required.”
Canadian Judicial Council investigating complaint against Supreme Court Justice Russell Brown
David Sterns, a former president of the Ontario Bar Association, asked: “How can the public have confidence knowing that a report saying why the matter needed to be aired in public is itself kept secret? It isn’t less public or important because of the resignation.”
The council was set to release its report ordering an inquiry last Thursday at 2 p.m. But moments before the release, Mr. Brown asked for time to consider his options.
Most legal observers interviewed said it was reasonable and appropriate for the judicial council to inform Mr. Brown of the planned inquiry and allow him to reflect before making the announcement. But having done so, they said the council was obliged to go public with its report.
“If it is reasonable to delay announcements so that Justice Brown can have some personal reflection time, I think it probably then is also incumbent upon the Canadian Judicial Council to make public at least some outline or sense of why they wanted to go to a public inquiry and what that inquiry was going to look into,” said Margot Young, a constitutional law specialist at the University of British Columbia’s Allard School of Law.
Prof. Kaiser said that, in general, judges revere the open-court principle, meaning that justice needs to be seen to be done.
“It is most unfortunate that this vital normative principle seems to have been sacrificed here,” he said, referring to the entire Brown affair.
Johanna Laporte, a spokesperson for the judicial council, said that as Mr. Brown is no longer a judge, the council has no jurisdiction under the Judges Act “to consider or make further observations on his conduct.”