Justice Russell Brown’s departure leaves conservative vacuum on Supreme Court of Canada

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Justice Russell Brown of Alberta was the most powerful conservative voice on the Supreme Court of Canada and, to some, the strongest such judge in 40 years or more.

Now he has resigned rather than face a public hearing into an allegation that he harassed two women at an Arizona hotel in January.

Courts, unlike legislatures, do not have an official opposition. But the 57-year-old Justice Brown was the outspoken leader of the Supreme Court’s unofficial opposition, repeatedly challenging a liberal view of rights and the role of the court’s judges that has prevailed for decades.

Often in dissenting opinions – but occasionally winning big – Justice Brown attempted to push the court to the right on everything from women’s equality to international human rights, from climate change to gay rights and from property rights to voting rights.

Justice Brown was “an indispensable reality check” on a liberal court, says Queen’s University law professor Bruce Pardy.

“As the Supreme Court has become ever more progressive and collectivist, Justice Brown has been a beacon of judicial restraint and clear thinking,” said Prof. Pardy, the executive director of Rights Probe, a conservative think tank. (Prof. Pardy was a campaign co-chair for lawyers who ran for board positions at the Law Society of Ontario this spring, using the slogan “Stop woke.”)

Conservative legal observers such as academic Leonid Sirota say most Canadian judges come from the same “ideological monoculture,” interpreting the Charter of Rights and Freedoms to fit their own rights-expanding biases. Hence, Justice Brown had been a source of delight on the right. As recently as May 31, an outspoken judge on a lower court celebrated Justice Brown’s effect on the Supreme Court’s view of Charter rights.

“Gone is inspiration from some vague feel, spirit or vibe, things that are in the eye of the beholder,” Justice David Stratas of the Federal Court of Appeal wrote, attributing the change on the top court to two rulings co-authored by Justice Brown. (Justice Stratas made the comment in a judgment rejecting court-ordered repatriation of Canadians in Syrian prison camps.)

Russell Brown’s exit from Supreme Court points to need for better process, Chief Justice says

While liberal observers saw Justice Brown differently – as a judge bent on discarding or overcoming precedents perceived as left-wing – both groups agreed on the power of his voice.

“He is a bold and confident thinker unafraid of challenging legal orthodoxy,” said Bruce Ryder, a professor at York University’s Osgoode Hall Law School, who tended not to see eye to eye with Justice Brown.

The court’s liberal orthodoxy was strong when Conservative prime minister Stephen Harper appointed Justice Brown, the son of a hardware store owner from the remote northern community of Burns Lake, B.C., in 2015.

The Supreme Court had just been through a remarkable period of unanimity: 9-0 on the right to medical assistance in dying; 9-0 on striking down prostitution laws; and 9-0 on stopping the Harper government from shutting down a health clinic where people could inject illegal drugs in front of nurses.

A former professional rugby player, Justice Brown travelled the world on $7 a day when he was young and, like a real-life Zelig, popped up in Poland during the heady days of the Solidarity movement and at Tiananmen Square during the historic student protests. He had a nose for where the action was.

His convictions were well-known by the time Mr. Harper first appointed him, to a lower court. As a law professor at the University of Alberta, he published a provocative, caustic and often funny blog, taking on everyone from Justin Trudeau to then-Supreme Court Chief Justice Beverley McLachlin.

In his eight years on the Supreme Court, Justice Brown continued to blast away at entire areas of the court’s case law – for instance, at “substantive equality,” which he called “an open‑ended and undisciplined rhetorical device” used by judges to conceal “their own policy preferences.” (The court has defined the term since 1989 to mean laws must not simply treat people the same; their effect on disadvantaged groups must be considered.)

Not since Ronald Martland (1958-1982) has the Supreme Court had such a strong conservative voice, legal historian Jim Phillips, who teaches law at the University of Toronto, says.

What is a conservative judge in the Canadian context?

Prof. Phillips says conservative tends to mean one of two things: “conservative in approach to precedent, very respectful of it, unwilling to innovate, and conservative in the sense of right-wing. They quite often go together, but not always.”

He saw Justice Brown as more of a conservative activist, pushing against a perceived liberal tide on Canada’s top court, than a conservative respectful of precedent and the plain meaning of the Constitution and legislation.

Consider one of Justice Brown’s signal victories, a 5-4 majority ruling in Annapolis Group Inc. v Halifax Regional Municipality, co-written last year with Justice Suzanne Côté.

Halifax had barred development of certain privately owned lands, and the owner sued, saying the restrictions were a “de facto expropriation” or a “taking” – essentially, government theft of private property. Before he became a judge, Justice Brown wrote voluminously on the topic, calling the Supreme Court’s pro-government precedents in this area of law “incoherent.”

“The bizarre thing,” Prof. Phillips said of Justice Brown and Justice Côté, “is that they say consistently, ‘We’re not changing the law’ – but they are. They’re trying to pretend they’re not activists, but they are.”

Still, Justice Brown took a very different approach in Frank v Canada, in 2019, on voting rights.

The case was about whether the federal government could bar Canadian citizens from voting in elections if they had been out of the country for more than five years. A 5-2 majority said it could not.

Justice Brown said the decision was Parliament’s to make, not the court’s. Co-writing again with Justice Côté, he cited the approach of Oxford law professor Richard Ekins, who heads a British group that argues activist judges threaten democracy.

The Ekins philosophy “is an argument against having judicial review,” said David Dyzenhaus, a professor of law and philosophy, also at the University of Toronto. Justice Brown’s co-written dissent in Frank “is the first sign of senior judges in Canada expressing support in a judgment for a deeply illiberal position, at odds with the Charter.”

But Prof. Dyzenhaus sees that as an outlier among Justice Brown’s judgments.

Justice Brown himself, in his blog, described the tensions in his outlook as a conservative libertarian, saying that when the two forces conflict, the libertarian usually prevails.

His writing style is a combination of deep intellect and brute force.

Consider Fraser v Canada, a women’s equality case from 2020. He and co-author Justice Malcolm Rowe called the majority ruling by Justice Rosalie Abella “corrosive of the rule of law” and “truly arbitrary.” The RCMP had allowed officers to work part-time, which helped young mothers. But it didn’t allow them to earn pension credits as part-timers. A 6-3 majority found that to be discriminatory.

Similarly, dissenting in the greenhouse gas reference case in 2021, Justice Brown criticized the majority’s “abandonment of any meaningful constraint” on federal power. The question in the case was whether the federal government had the authority to impose a carbon tax on the provinces. A 6-3 majority found it did.

If Justice Brown stood outside the court’s consensus on equality and the environment, he also challenged the prevailing views when gay rights clashed with religious freedom in Law Society of B.C. v Trinity Western University, in 2018.

In that case, a proposed Christian law school would have required students to abstain from sex outside of heterosexual marriage. Two law societies said they would reject the graduates. The court ruled 7-2 that the law societies were within their rights to have done so. Justice Brown, once again co-writing with Justice Côté, accused the law societies of a profound interference with a religious body’s moral commitments in a private space.

“He has a spine,” Prof. Pardy said.

Justice Brown could usually count on Justice Rowe and Justice Côté. Prof. Ryder called their coalition BROC, because they would go for broke and expressed the view that the court’s jurisprudence is broken.

But on key interpretive questions – the kind that could shape rulings for many years – Justice Brown proved critical to a rightward swing on the court.

In Toronto Council v Ontario, in 2021, he and Chief Justice Richard Wagner wrote for a 5-4 majority that “unwritten constitutional principles” such as democracy cannot be used to strike down laws. This was one of the two cases that, in Justice Stratas’ view, returned rigour to the court’s Charter analysis. (The result in this case was that Ontario’s changes to Toronto ward boundaries shortly before a municipal election were deemed lawful.)

“He thinks, not unreasonably, that in a democracy citizens ought to be able to govern themselves through their parliamentary representatives, and he is resistant to what he sees as too-easy, paternalistic, second-guessing of those decisions by judges,” former University of Victoria law dean Jeremy Webber said.

It is on criminal law where Justice Brown most surprised court watchers – including in a pronouncedly liberal ruling on policing and race. That came in R v Le, in 2019, in which police entered a private backyard in Toronto where several racialized youth were chatting. Eventually, one of the youths ran and dropped a bag with a gun. Justice Brown, co-writing with Justice Sheilah Martin for a 3-2 majority, threw out the conviction for illegal gun possession, saying a racialized person in Tom Le’s shoes would have felt detained, and the detention was illegal and arbitrary.

In R v J.J., dissenting yet again, Justice Brown described a federal law that gives sexual-assault complainants new privacy protections as a “formula for wrongful convictions.” A 6-3 majority upheld its constitutionality last year.