Supreme Court Justice Russell Brown looks on during his welcoming ceremony at the Supreme Court in Ottawa on Oct. 6, 2015.Adrian Wyld/The Canadian Press
A foundational principle of the rule of law in a democracy is transparency. The doors of a court are open, for the most part. Evidence almost always is weighed in public.
In the strange saga of now former Supreme Court of Canada justice Russell Brown, transparency has been missing in action. We live in an era of rising distrust in institutions. They are questioned, often rightly so. Trust must be earned, every day, and transparency is the currency that builds and fortifies trust. Courts are central to society’s village square and trust in the courts is paramount.
The chronology of the Brown case illuminates the piecemeal nature in which facts and allegations emerged. It has eroded trust.
On Jan. 28, Justice Brown spoke at a judicial gala at a hotel near Phoenix. The next day, a complaint was made against Justice Brown to the Canadian Judicial Council, which considers disciplinary action against federally appointed judges. On Feb. 1, Justice Brown was placed on leave from the Supreme Court by Chief Justice Richard Wagner.
At this point, nothing was public. The first big question is obvious: How could a justice of the country’s Supreme Court be sidelined with not even a mention that it had occurred? There were key cases ahead, such as Ottawa’s jurisdiction over proposed industrial projects. Justice Brown, from Alberta and appointed by Stephen Harper, is a strong defender of provincial rights and the court’s leading conservative voice.
News of his absence came out before that case was heard – by way of an asterisk. In a different case that concluded Feb. 17, it was noted that Justice Brown wasn’t part of the judgment’s final disposition. The court confirmed to The Globe that Justice Brown was on leave but wouldn’t say why, because of “confidentiality.”
That perhaps is fair – the complaint was still in the early going. But the top court cited the same reason, “to respect confidentiality,” for not revealing his absence in the first place. To not even say he was on leave is unreasonable.
In March, the judicial council revealed it was reviewing a complaint against Justice Brown. The Vancouver Sun then published a story of what led to the complaint. Justice Brown was alleged to have harassed two women and gotten in an altercation with a man at the Arizona hotel late at night on Jan. 28. Police responded but no charges were laid. Justice Brown thereafter said he was assaulted without provocation. At the end of March, the judicial council struck a review panel to decide whether the incident was “serious enough to warrant the removal of the judge.” Complaints rarely make it to this review stage.
Last week came Justice Brown’s surprise resignation. The review panel had been ready to release a report on the basis for a public inquiry but first gave Justice Brown a head’s up. After a few days of reflection, he decided to resign, and the report wasn’t released. Since he is no longer a judge, the council said its work was done.
The situation has left no one happy. Chief Justice Wagner, in an annual press conference that happened to be last week, said the process was “opaque” – something the legal community has long argued – and has asked the council to be more transparent. There are process reforms pending in Parliament and if they were in place now they could have helped if this case progressed further – but don’t address matters like the top court deciding to keep a justice’s leave secret.
Justice Brown issued two statements last Monday. He complained of the process and offered “evidence that disproves the claims made against me” – yet with close to 20 years potentially ahead of him on the Supreme Court, he chose to give up instead. Conservatives are upset because they’ve lost a voice on the top court. (Prime Minister Justin Trudeau this summer will appoint a sixth justice in eight years. Mr. Harper appointed eight in 10 years.)
A fuller explanation is what’s missing: why the judicial council felt there was enough of a case to hold a public inquiry that could have, for the first time since the council’s creation in 1971, led to a justice’s removal from the Supreme Court.
Canadians deserve to know. Legal experts are calling for the council to release its report. The loss of a Supreme Court justice should not end in a swirl of uncertainty. Trust cannot be taken for granted and needs to be earned. Transparency is the remedy.