His rise to the country’s most powerful court was, in the words of a former law-school colleague, “meteoric.” And thus far it has been unexplained. Prime Minister Stephen Harper and Justice Minister Peter MacKay have said little about why the government chose Russ Brown of Alberta, who has just two years’ experience on the bench.
But before he became a judge, Justice Brown was a law professor, and he blogged frequently on the University of Alberta’s website from 2007 to 2012.
In those blogs, he emerges as a vocal and irreverent conservative. At times, he appears more pundit than professor – describing Justin Trudeau as “unspeakably awful” and deriding the Canadian Bar Association as a left-wing, anti-Conservative group. He also wonders whether Chief Justice Beverley McLachlin shares the CBA’s anti-Conservative bias.
His writings offer a portrait of the judge he might be – a judge likely to shake up a court that has ruled more often and with greater unanimity against the federal government in big cases than it has since the 1982 Charter of Rights and Freedoms came into effect; a judge who stands outside the court’s consensus and, as a professor, said so on many occasions.
Justice Brown has not given media interviews. And there is no longer any forum in which he can be asked about his views on the law. The government appears to have given up on the parliamentary hearings at which MPs publicly grilled the Supreme Court’s newest appointee. The Globe and Mail asked an official at the Supreme Court to contact him to ask if he would discuss the content of his blogs. Justice Brown declined to do so.
In his blogs, the 49-year-old Justice Brown accuses the court of expanding the reach of the Charter of Rights and Freedoms beyond what those who drafted it intended. From the beginning, he says, the court misinterpreted the right to life, liberty and security, the section that caused prostitution and assisted-suicide laws to be struck down. (He is the third former academic appointed in the past eight months to voice this view. Bradley Miller and Grant Huscroft, named by the Conservative government to the Ontario Court of Appeal in the past eight months, are the others.)
Now a member of a court that since 2001 has barred all extraditions of accused murderers to face the death penalty in the United States or elsewhere, he says in a blog that he sees no obvious reason why capital punishment in the United States should not be used in cases of child rape. (In a ruling he was part of last year, the Alberta Court of Appeal allowed the extradition of a suspected terrorist to face life without parole in the United States, saying the penalty would not “shock the conscience” of Canadians.)
Justice Brown, who has a doctorate in law from the University of Toronto, is not lacking for confidence; he thinks the court is weak on “private law” – his specialty, also known as civil law, which relates to disputes among individuals or companies.
And he is no federalist – he refers to the Canada Health Act, which defines the terms of public health care, as “an inappropriate [federal] intrusion into sacrosanct provincial swimming pools.” (The square brackets are his.) And he thought the 1998 secession reference case, which scholars deem one of the most important in Canada’s history, on the terms of Quebec’s possible separation, was none of the court’s business.
Reflecting separate strands in the Conservative Party, he appears to see himself as a “conservative libertarian.” But when push comes to shove, he says he favours the libertarian over the conservative. That is, he believes in judges defending constitutional rights when government goes too far in limiting them.
And he does not think much of the judicial appointment process – calling it a “disgrace” in its lack of parliamentary oversight. He goes much further than the CBA, representing 37,000 lawyers, ever has, in calling for a parliamentary review for each judge appointed to the top trial and appeal courts of the provinces.
On Oct. 21, 2008, with the Liberal Party looking for a new leader after Stéphane Dion stepped down, Justice Brown blogged: “As someone who hopes the Grits just fade away by the next election, I’m cheering for Justin Trudeau or Joe Volpe. Or have I missed a possible candidate who is as unspeakably awful?”
Someone asked in response whether his position was based on a hatred of the nanny state. His reply was that he is “no fan of the nanny state,” but more important is that “I’m no fan of any party that comes to see itself as the embodiment of the nation.”
His sympathies with the Conservatives are clear. On Sept. 8, 2008, responding to a blog post describing Prime Minister Stephen Harper as “scary,” he said: “I don’t see it. Admittedly, I harbour some hope for a hidden agenda, but I doubt it’s going to happen.” (Critics had said Mr. Harper had a “hidden agenda” of conservative policies that would emerge once he had a majority government.)
Justice Brown views the Canadian Bar Association as politically partisan, mocking it for calling on Canada to demand freedom for Omar Khadr at a time the United States was holding the accused teenage terrorist at Guantanamo Bay, Cuba. He said the bar association is indifferent or silent when repressive Middle East regimes hold, torture or, in one case, even kill Canadians, such as Zahra Kazemi, Maher Arar or William Sampson. The reason for its selective outrage, he said, is that it doesn’t like the Conservative government.
He also wondered, in a blog post on April 12, 2008, about whether Chief Justice McLachlin has a bias similar to the CBA’s.
“Perhaps I’m reading too much into this, but I could not help being struck by the penultimate sentence in Chief Justice McLachlin’s news release announcing the imminent retirement of Justice Bastarache. ‘I know,’ the Chief Justice said, ‘that the Canadian government will consider the appointment of a new justice with the care and deliberation required.’ Again, I might be reading too much into this, but it seems to come off more as a shot across the bow, rather than as a genuine expression of being reassured. Kind of like the way we tell our kids, ‘I know you wouldn’t think of tracking mud into the house,’ when we’re afraid they are about to do just that.
“Thinking that this is maybe something she says all the time, I tracked down the news release from February, 2004, when the Chief Justice announced the imminent departure of Justice Arbour. Not a peep about any concern for care and deliberation in choosing her replacement.” A Liberal government was in place at the time.
He was also less than impressed by the Chief Justice, with whom Mr. Harper has publicly tangled, on another occasion, writing on Sept. 21, 2008: “By the way, did anyone notice when McLachlin CJ spoke at the law school on Friday that she listed China (!?!?!?) as one of the countries whose constitutional law might be a helpful source from which to draw? Frankly, if the SCC justices are going to dabble in comparative constitutional legal analysis in order to ‘inform’ the content of Canadians’ constitutional rights, I’d prefer they stick to countries that observe the rule of law.”Report Typo/Error