A law professor, a trial judge and an appellate judge are duck hunting. Only ducks are in season; nothing else must be shot. Spotting fowl, the law professor quotes illustrious academics on the properties of duck feathers, then opens fire. The appeal court judge, spouting case law, pulls the trigger. And the trial judge? Blam! "I hope it's a duck."
Justice Russell Brown tells the joke at an evening gathering in the Grand Entrance Hall of the Supreme Court building in Ottawa before about 100 members of the public. He has been all three, and his joke suggests judges and law professors are, after all, only human, and decide matters according to their own lights.
The May 9 event was An Evening at the Supreme Court with the Hon. Justice Brown, organized by the Bora Laskin Law Society, a group of Jewish lawyers and law students in Ottawa named after the Supreme Court's first Jewish judge, and open to non-members for $30. It offered the public a rare chance to ask him questions and get to know the person beneath the black silk robes – or in this case, beneath an Edmonton Oilers jersey (with a tie and a sport jacket adding a touch of formality). Wine and pastries provided.
Consider it the public hearing Justice Brown never had when he was nominated to the Supreme Court, because the prime minister of the day, Stephen Harper, expunged the public hearings he had created – at which parliamentarians got to question new nominees – for his final three appointments.
Now 51, Justice Brown was Mr. Harper's final appointee to the Supreme Court, in the summer of 2015. From the prime minister's perspective, he was a real find – a conservative libertarian, by his own description, willing to question foundational rulings from the early years of the 1982 Charter of Rights and Freedoms. In the Canadian legal community, that marked him as a rare right-wing skeptic.
He also had the academic heft and the writing chops (as a blogger, he mocked Justin Trudeau as "unspeakably awful"). All in all, an unusual combination of brains and verve, and comfortably bilingual to boot.
He has already had a pronounced effect on the lives of Canadians: He was a co-author of last summer's ruling in the case R v. Jordan, which set time limits for criminal trials and pushed the justice system into a hasty overhaul to protect the right to a timely trial. (Judges do not always turn out the way the appointing government expected.) In person, Justice Brown is, like any good blogger, a bit of an entertainer – humorous, easily able to hold a crowd's attention, although as a judge, no longer willing to be edgy. (When a law student asks him about the "political correctness movement," he claims not to know anything about it.)
Instead of parliamentarians asking questions, University of Ottawa law professor Adam Dodek sits in a comfy chair next to Justice Brown, teasing out the judge's views. What emerges is less about his legal philosophy than his personal story, which began far from the centres of power, in Burns Lake, B.C., then a community of 1,000 people, half Indigenous. (Edmonton was closer than Vancouver, hence the Oilers jersey.)
From his idyllic childhood, fishing and playing in the bush, to a young man's wanderings along the world's fault lines, to a career fuelled by the desire to "make sense of things," for himself and others – Justice Brown demonstrated that the path to the Supreme Court is anything but a straight line.
His father owned a hardware store. "He was the type of citizen who makes a lot of these small towns tick," Justice Brown says, by supporting community endeavours such as a ski club and a hospital. His mother, from a pioneering Italian-Canadian family, was the one who pushed him to go to university. "She made it very clear that she wanted to see me leave Burns Lake and go to university and try to make something of myself."
As a young man with a bachelor of arts degree, he backpacked around Europe on $7 a day, sleeping on trains and in cemeteries. He landed in Poland in 1989 as the Solidarity movement was making its breakthrough against Communist control, leading to parliamentary elections; and later, after taking a train from Warsaw to Moscow and a nine-day train ride across the Soviet Union to China, was at Tiananmen Square at the time of the historic student protests.
"You're Forrest Gump," Prof. Dodek says. (A Gump with a doctorate in law from the University of Toronto.)
He reached the Supreme Court in much the same way he reached China: by having an adventurous spirit, one destination leading to another, without ever having an overall plan.
A light bulb went on during a stint as an intern in the B.C. government, supporting caucus and then a cabinet minister; in policy meetings in which the subject matter seemed to him "an incomprehensible mess," government lawyers spoke and cleared it up. "I thought, 'I want to be that person. I want to be the person who makes sense of things that people find hard to understand.'"
He chose the University of Victoria law school for his initial law degree because he wanted to play rugby (Justice Brown has a rugby player's stocky build). After earning his bachelor of laws in 1994, he became a civil litigator (medical negligence, insurance, personal injury), expecting to stay in private practice two or three years before heading to graduate school. He loved it, and stayed nine or 10. He also loved being an academic at the University of Alberta, until a period as chair of an appeals body for student-misconduct cases led him to reflect that being a judge "might be something I was cut out to do."
Once he became a judge, he rose rapidly. He spent a year on the Alberta Court of Queen's Bench, and two years on the Alberta Court of Appeal. Now in his second year on the Supreme Court, he misses the Alberta wilderness. Living in Edmonton, he liked to escape to nearby Elk Island National Park where he snowshoed 12 or 15 kilometres at a time, and chilled with the bison. Uprooting was a challenge, he says.
"If I could wave my magic wand," he says, "I would move the Supreme Court to Red Deer."
Occasionally, the conservative makes himself known, as when he dissented, with two other judges, in support of the Conservative government's mandatory minimum sentences for illegal gun possession, chiding the majority under a snarky heading, "Respecting Parliament."
But when an audience member asks him about treading on Parliament's turf, and moving beyond the court's proper role under the Charter of Rights, he replies: "As a general proposition, that's not helpful. You have to look beyond that. What's the issue? What's the right at stake? What has the jurisprudence established about the content of that right?"
His biggest surprise on the court? "It is incredibly hard to predict what anyone is going to do on any particular file."
Of all the cases at any level of court, the kind he found the toughest to decide was child custody disputes in which one parent wishes to move with the child across the country, or to a distant land. Each side had its army of courtroom supporters; there was no clear methodology to decide between two sides where neither was at fault; and the life-changing decision fell to an individual who is, after all, only human.
"I didn't get to the bench by being parent of the year," Justice Brown says. "We're all imperfect. You take your best shot and wait for the next duck to fly over."