Supreme Court Chief Justice Richard Wagner placed Justice Russell Brown on a paid leave of absence after being informed of a disciplinary complaint against him a day earlier and discussing it with him, the court said on Tuesday.
The revelation came soon after the Canadian Judicial Council, a disciplinary body for federally appointed judges, announced it is investigating Justice Brown. It did not say why, or who made the complaint.
Justice Brown, contacted through his executive assistant, said in an e-mail: “I am cooperating fully with the Council’s review process. Out of respect for that process, I anticipate making no further comment on this matter.” He did reveal, however, that the complaint is from a member of the public, and not from a member of the judicial council itself. The council is comprised of chief and associate chief justices across Canada. Complaints can be made anonymously.
The judicial council said it was making the decision to go public about the complaint at an early stage – when complaints are usually confidential – because its role is to ensure public confidence in the judiciary and the judicial conduct process.
If the complaint is deemed serious enough to warrant potential dismissal from the $403,300-a-year job, the council could order a public inquiry. No Supreme Court judge has been subject to such an inquiry, according to Gavin MacKenzie, a lawyer and author in the area of legal ethics.
The Supreme Court did not announce the leave of absence when it began on Feb. 1. It came to light on Feb. 17 when the court released a judgment with an asterisk beside Justice Brown’s name, indicating he participated in the hearing of the dispute but not the ruling. The court then confirmed the absence in response to news-media queries.
The council said the decision to reveal the complaint was made by B.C. Supreme Court Chief Justice Christopher Hinkson, the chair of its judicial conduct committee, “in light of questions being raised regarding the absence of a Justice of the Supreme Court of Canada, the highest court in the country that is comprised of only nine judges.”
The council said it received the complaint on Jan. 29, and Chief Justice Hinkson showed it to Justice Brown on Jan. 31, and asked him to respond to it in writing. He did so on Feb. 20.
The council’s rules provide that the Supreme Court Chief Justice takes no part in the investigation. Chief Justice Hinkson, if he decides the investigation should continue, may refer it to a review panel, usually made up of four judges and a layperson. That panel would decide whether a public inquiry was warranted.
“My goodness, it’s certainly embarrassing for the court,” said Ian Greene, an author of books on the Supreme Court.
Justice Brown, 57, was the last Supreme Court appointment of Conservative prime minister Stephen Harper in 2015. The son of a hardware-store owner, he was raised in Burns Lake, B.C., and went on to be a law professor at the University of Alberta. Mr. Harper’s government appointed him to that province’s Court of King’s Bench, and then its Court of Appeal, and finally the Supreme Court of Canada, in a 2½-year span.
Bilingual, and a self-described conservative libertarian, he is a sharp-witted, tenacious and well-prepared presence in hearings, which are built around a give-and-take between judges and counsel. In dissent, he has rebuked the majority for its liberal rulings on equality for women, saying the court has overstepped its role. He also dissented in a major environmental case, saying the federal government lacked the authority to impose a carbon tax on the provinces. Surprisingly to some, he has become perhaps the court’s leading advocate for the rights of the criminally accused.
The last three known complaints to the judicial council about a Supreme Court judge came when the court’s first three female judges were accused of bias in separate matters between 1990 and 1999, Mr. Greene said. The council rejected the complaints and none of the three judges took a leave of absence.
Mr. MacKenzie said he is not aware of any Supreme Court judge taking or being put on a leave of absence pending resolution of a complaint. “We do not know whether Justice Brown agreed to take the leave of absence,” he said.
In a practical sense, the complaint means that it could be weeks or months – or never – before Justice Brown’s return, leaving the court shorthanded, and Western Canada short one judge. (Traditionally, the Supreme Court has two judges from the West, three from Ontario, one from Atlantic Canada and – by law – three from Quebec.) Mr. MacKenzie said he expects the judicial council to act expeditiously.
While the court can and does sit with as few as five judges, it has a major federalism case coming up this month on whether Ottawa’s new environmental law steps on Alberta’s toes, and those of other provinces. The court has not said whether it will sit with seven or eight judges on cases like that one.
The legal community is of mixed minds about the Supreme Court’s handling of the matter. Senior lawyers Brian Greenspan and Frank Addario said in interviews with The Globe and Mail on Tuesday that the court has acted appropriately throughout.
“At this stage everything is speculative, so that the risk of reputational damage caused by a mere allegation is significant,” Mr. Greenspan said. “At this point it’s just a complaint, an investigation will take place, and the Chief Justice determined that in those circumstances a member of his court ought not to be sitting.”
University of Ottawa law professor Amy Salyzyn said the Supreme Court’s decision not to reveal Justice Brown’s leave was concerning, especially in light of the conduct complaint revealed Tuesday.
“In the absence of meaningful transparency, the public is left to speculate about what is going on and this does not seem particularly healthy for public confidence in the Court,” Dr. Salyzyn said.
As for the details of the complaint, University of Waterloo political-science professor Emmett Macfarlane said that at this stage, there are probably good reasons not to know. But he said he found the court’s initial silence on the leave “odd,” and wonders how much the public will ultimately be told.