With Russell Brown’s resignation, Prime Minister Justin Trudeau will soon proceed with his sixth – and possibly most consequential – appointment to the Supreme Court of Canada.
The departure of Mr. Brown, who resigned this month to avoid a public hearing stemming from a complaint that he harassed two women on a trip to Arizona, leaves the country’s top court without its most strident conservative voice and defender of provincial rights.
His replacement will almost certainly entrench the court’s liberal bias in cases involving minority rights and those touching on the division of powers between Ottawa and the provinces. It is just not in Mr. Trudeau’s DNA to choose someone with the same judicial philosophy as Mr. Brown, who was named to the top bench by Stephen Harper in 2015. Indeed, it would be impossible to even find another judge quite like him.
When it comes to the Supreme Court, liberal and conservative labels can mean different things to different people. Judges who favour restraint are typically seen as conservatives, except when the restraint in question involves upholding liberal laws. Similarly, judicial activism is seen as a liberal tic, unless it involves rolling back progressive legislation.
Mr. Brown joined his colleagues in unanimous decisions striking down key aspects of the Harper government’s tough-on-crime agenda, including a 2022 ruling that invalidated a Harper-era law allowing judges to impose consecutive life sentences for multiple murders. In 2017, he concurred in a ruling that ordered the release of accused individuals “at the earliest reasonable opportunity and on the least onerous grounds” in bail hearings.
Conservative Leader Pierre Poilievre has taken aim at both of those decisions. He has vowed to use the notwithstanding clause to reinstate consecutive life sentences if he becomes prime minister, and has promised to put forth legislation to deny bail to repeat violent offenders.
It is on questions involving the limits of federal power where Mr. Brown stood out, and where his absence from the court may be felt most acutely. Since becoming Canada’s final court of appeal in 1949, the Supreme Court has tended to rule in Ottawa’s favour in cases involving the division of powers in the Constitution. Politicians in Quebec and Western Canada have long griped about the court’s centralization bias.
Unique among his colleagues, Mr. Brown took a dim view of attempts to expand federal power at the expense of the provinces, defying the majority consensus that Ottawa always knows best. While Justice Suzanne Côté (a Harper appointee) and Justice Malcolm Rowe (a Trudeau nominee) often stand up for provincial rights, neither has done so with the same conviction as Mr. Brown.
With his departure, Mr. Brown’s dissenting opinion in the court’s 2021 decision upholding Ottawa’s carbon tax will go down as a quixotic effort to rein in federal power. The court ruled 6-to-3 that global warming was a matter of “national concern” under the Constitution’s peace, order and good government (POGG) clause, allowing Ottawa to impose its carbon tax on provinces whose efforts to reduce greenhouse gas emissions did not measure up to federal standards.
“[T]he true danger in the majority’s reasons for judgment does not lie in the blending of trade and commerce jurisprudence with POGG jurisprudence, or in the confusing and confused test that it states,” Mr. Brown wrote. “It is in the majority’s abandonment of any meaningful constraint on the national concern branch of the POGG power.”
The precedent set by that decision has important repercussions for the country. The national concern argument was also invoked in favour of the federal Impact Assessment Act. Mr. Brown was already on leave from the court when it heard arguments for and against the law’s constitutionality earlier this year. A ruling in Ottawa’s favour would further undermine confidence in the court’s impartiality among provincial rights advocates.
Neither Justice Sheilah Martin, a former Alberta Court of Appeal judge, nor Justice Nicholas Kasirer, who previously sat on the Quebec Court of Appeal, are considered defenders of provincial rights, despite hailing from the two provinces whose governments are typically the most hostile to federal intervention. Both were nominated by Mr. Trudeau.
The 1982 Constitution explicitly granted provinces exclusive jurisdiction over “the development, conservation, and management of non-renewable natural resources” within their boundaries, as well as over electricity production. But those powers have been increasingly eroded by federal environmental policies that invoke national and global environmental concerns to impose explicit or implicit limits on resource development.
If Mr. Trudeau appoints another Supreme Court judge who shares his centralizing philosophy, it could have disastrous consequences for national unity.