Supreme Court Justice’s leave could have impact on pivotal environmental law case

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Supreme Court Justice Russell Brown has taken a leave of absence that was not announced by the court, which has lost a strong voice for provincial rights as a major federalism case looms.

The court confirmed in an e-mail to The Globe and Mail that the 57-year-old is on leave, which began Feb. 1. The court stressed that it is a confidential matter.

The leave has the approval of Chief Justice Richard Wagner, who has informed federal Justice Minister David Lametti as required under federal law, Stéphanie Bachand, executive legal officer to the Chief Justice, said in an e-mail.

“Unfortunately, we cannot disclose why Justice Brown is currently on leave, to respect confidentiality. There has been no statement by the court for this same reason,” Ms. Bachand said.

Again citing confidentiality, she declined to answer a Globe query as to the length of the leave. If it goes longer than six months, it would need cabinet approval.

The absence became obvious last Friday when the court issued a ruling in a sexual-assault case with an asterisk beside Justice Brown’s name, signifying he had participated in the hearing but not in the ruling.

Gavin MacKenzie, a former treasurer of the Law Society of Ontario and an author in the field of legal ethics, said the court’s responsibility to the public may be tempered by privacy concerns.

“I would expect that in the interests of transparency the Supreme Court of Canada would ordinarily want to announce that one of its justices has taken a leave of absence,” he said in an e-mail, “but I can appreciate that there may be personal privacy interests that may have to be taken into consideration in some circumstances in the decision whether to announce the leave and, if so, at what time.”

On March 21 and 22, the Supreme Court will debate a federal environmental law that enables Ottawa to regulate a wide range of industrial projects. Alberta argues that the law at issue, the 2019 Impact Assessment Act, is a vast overreach into provincial jurisdiction. If Justice Brown’s absence extends that long, it could have an impact on a pivotal federalism case.

The act gives Ottawa the authority to regulate projects based on whether they have environmental impacts that fall into federal jurisdiction. That includes climate change and effects on Indigenous territory and ecosystems. Alberta argues that it covers virtually all areas of the province’s economy.

Alberta referred the question of the law’s legality – under Canada’s founding 1867 Constitution – to the Alberta Court of Appeal. In a 4-1 ruling in 2019, the appeal court called that law an existential threat to Canada as it functions now, with powers divided between the provinces and the federal government. Twenty-nine intervenors – provincial governments, First Nations, environmental and industry groups – will be making submissions to the Supreme Court of Canada.

Justice Brown’s absence would mean the loss of an expected vote for Alberta’s position. He was one of three judges dissenting two years ago when the Supreme Court, in a 6-3 ruling, upheld the federal government’s authority to impose a carbon tax on the provinces.

“Given the way he decided the carbon-tax case, this obviously is a big loss for Alberta, because you’d expect his approach to be similar to what he said in the carbon-tax case,” lawyer Peter Gall said in an interview.

Mr. Gall represented Alberta in that case, and is representing the Independent Contractors and Business Association, and Alberta Enterprise Group, which are intervening together in the March case, in support of the province’s position.

The court could sit with eight members, leaving the possibility of a tie vote. Under Beverley McLachlin, Chief Justice Wagner’s predecessor, the court was down to eight members from the latter part of 2013 until June, 2014, after the court rejected a Stephen Harper appointee, Marc Nadon, as legally unqualified. The court sat at times with eight members during that period. (The first task of Mr. Nadon’s replacement, Clément Gascon, was to break a tie vote in a case that had already been heard.) The court may sit with as few as five members.

Justice Brown is a former law professor at the University of Alberta, where he was a sharp-witted blogger on law and politics, describing himself as a conservative libertarian.

The federal Conservatives named him to the Alberta Court of Queen’s Bench in 2013, and the Alberta Court of Appeal in 2014. On the Supreme Court, he has distinguished himself by his thorough preparation and tenacious questioning in hearings, and his tough-minded rulings – whether in the majority, such as in Jordan in 2016, where he co-wrote the decision that set time limits for criminal proceedings, or in dissent, such as in J.J., on sexual assault in 2022, where he accused the majority of setting the stage for wrongful convictions.

The court’s decision not to announce the absence of Justice Brown from its winter session of hearings has mostly been met with silence by the legal community.

The Canadian Bar Association’s president, Steeves Bujold, declined to comment when contacted by The Globe. The law dean at the University of Alberta, Barbara Billingsley, also declined to comment.