Supreme Court Justice Russell Brown is facing the unprecedented possibility for a judge on Canada’s most powerful court of being judged himself in a public trial potentially lasting weeks in front of a national disciplinary body.
But first, several investigative steps, led by judges from other courts, will unfold to determine whether Justice Brown’s conduct may have been serious enough to warrant removal from the bench.
Justice Brown, 57, was appointed from the Alberta Court of Appeal by Conservative Prime Minister Stephen Harper in 2015, and has been a powerful voice and prolific author of judgments, whether speaking for provincial rights in environmental matters or for establishing time limits in criminal matters.
“The process is there when someone feels a judge has not conducted himself or herself appropriately,” said Adèle Kent, a former chief judicial officer of the National Judicial Institute, which trains judges. “In any job, there needs to be some process of accountability.”
Everything about the process in Justice Brown’s case has been shrouded in mystery. The Supreme Court did not announce his absence when it started on Feb. 1. The Canadian Judicial Council, a disciplinary body of chief and associate chief justices, did not say who filed a complaint against Justice Brown, or why, when it revealed the complaint on Tuesday.
But one thing became clear this week: Both the Supreme Court and the judicial council have treated the complaint from a member of the public as deserving of investigation.
The first step in the complaint process has already been cleared – and quickly.
The council’s interim executive director Marc Giroux received the complaint on Jan. 29. Under the federal Judges Act, Mr. Giroux had the power to dismiss the complaint if he deemed it to be trivial, vexatious, improper, abusive or not in the public interest.
Instead, he promptly passed the complaint through to its second stage – a review by the council’s conduct-committee chair, B.C. Supreme Court Justice Christopher Hinkson.
“Those elimination criteria certainly mean that, without making any final assessment, there is something here which requires further inquiry and investigation,” Archie Kaiser, a law professor at Dalhousie’s Schulich School of Law in Halifax, said in an interview.
The vast majority of complaints are closed at the initial, executive-director stage, data from the council show. From April, 2020, to March, 2021, the council opened 336 complaints, and the executive director closed 285 of them.
On Jan. 31, Chief Justice Hinkson informed Supreme Court Chief Justice Richard Wagner and Justice Brown. Chief Justice Wagner acted just as promptly as Mr. Giroux had. The day after he was informed, he placed Justice Brown on an indefinite paid leave of absence, the court said on Tuesday, leaving the nine-member court with just eight.
“The only thing one can fairly take is that it’s something more that deserves inquiry,” Prof. Kaiser said of Chief Justice Wagner’s decision to place Justice Brown on leave from the $403,300-a-year job.
Chief Justice Hinkson asked Justice Brown to respond to the complaint in writing. On Feb. 20, he did so. Chief Justice Hinkson has the authority to dismiss the complaint or to negotiate remedial measures with the judge to resolve it. (Some of these procedures would change in federal legislation now in the Senate.)
Or Chief Justice Hinkson could send it on to the third stage, a review panel made up of four judges and a layperson, if he decides “that the matter may be serious enough to warrant the removal of the judge,” the council’s bylaws say.
At each stage, Justice Brown is to be given the opportunity – with the assistance of his own lawyer, whom he declined to identify on Wednesday to The Globe and Mail – to comment on information gathered and conclusions being drawn by the council and any investigator it has retained.
And the review panel would then have to decide whether the matter should be heard by yet another panel, in a public trial – formally known as an inquiry. The panel has the power to recommend dismissal, but only Parliament can actually fire a judge.
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Just six federally appointed judges have been recommended for dismissal since the Canadian Judicial Council was established in 1971. All resigned before Parliament had the chance to dismiss them, with the exception of the most recent case, Justice Gérard Dugré of Quebec Superior Court, who is challenging the council’s fairness in Federal Court. His public inquiry took up 38 sitting days in front of a judicial-council panel. (The judicial council found Justice Dugré had been aggressive toward lawyers and chronically slow on rulings.)
“It’s all new and uncharted,” said David Sterns, a former president of the Ontario Bar Association, of Justice Brown’s case.
“What makes this case exceptional is this is the highest court. Its functioning depends on usually a full complement of judges. This is not simply a matter for public gossip, it’s really a question of the functioning of one of the pillars of our democracy, the Supreme Court of Canada.”
And it raises difficult questions, he said, about what information to release and when.
The council has the authority, under federal law, to keep some information private if it deems release not to be in the public interest. The conduct-committee chair, Chief Justice Hinkson, is responsible for deciding what and when to release, and made the decision Tuesday to reveal the complaint in light of questions about Justice Brown’s absence from the court, the council said.
Even if the complaint reaches a public inquiry, there is no guarantee of complete transparency. “The Judges Act does provide that the inquiry committee can prohibit the publication of some information,” Johanna Laporte, a spokesperson for the council, said.
Mr. Sterns said that in his view, both the legal profession and the public have a right to know “as much as they can.”
“The CJC has the option of keeping matters private and confidential and they have the ability to make it public and transparent. My hope is that they lean much more heavily on public and transparent, given the stature of the judge in question and his position on the Supreme Court of Canada.”