Hushing up the fall of a Supreme Court judge

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Something has happened: A justice of the Supreme Court of Canada fell off the bench. Just what happened wasn’t revealed at first. It was then treated as confidential. And now that it’s over, it’s none of your business. We should have some concerns.

Justice Russell Brown resigned Monday when he was about to face a public hearing about allegations of improper behaviour while on a trip to Arizona in January.

And apparently, the case is closed. Now that Mr. Brown is no longer sitting as a judge, the whole business is over, Chief Justice Richard Wagner told reporters on Tuesday.

“The process is there and it’s finished because the judge resigned,” Chief Justice Wagner said. “So there’s no matter to deal with any more.”

When the Chief Justice tells you the issue is moot, it’s probably a solid legal perspective. But it’s not enough for the Canadian public.

This is the unsettling Canadian way of saying little about this unpleasantness and moving on quietly. But we’re talking about a justice of the highest court in the land being directed to a formal disciplinary process and, for the first time ever, quitting over a claim of misconduct.

Yet there’s been a lot of whispery hush-hush. Even though there are lingering questions.

For one thing, Mr. Brown’s lawyers indicated that he thought he’d eventually be cleared but balked at the onerous process launched by a complainant who had “weaponized” the disciplinary process. It’s hard to know if that’s just an excuse, but it’s still notable when a Supreme Court justice complains there’s no justice in the system.

Perhaps that question really is unresolvable now that Mr. Brown won’t contest the complaint.

But the questions about transparency are worth revisiting.

The complaint against Mr. Brown stemmed from an altercation during a trip to Arizona for an award ceremony. After the event, Mr. Brown was invited to join a group at their table in the lounge of the resort, and later, one of them, an ex-Marine named Jon Crump, punched the judge. The two parties disagree on why.

Mr. Crump called the police and alleged that Mr. Brown was drunk and creepy and hitting on two women in the group, kissing one on the cheek and touching her in an unwanted but non-sexual way, and that he punched Mr. Brown when the judge tried to follow the women into their room. Mr. Brown, on the other hand, said a drunken Mr. Crump suddenly punched him, unprovoked.

But the Canadian public didn’t know about any of that for five weeks after the complaint was filed and Mr. Brown took a leave from the Supreme Court.

In fact, the public didn’t know that Justice Brown was on a leave at all. Amazingly, a Supreme Court justice was disappeared without a word. The complaint was received Jan. 29, Justice Brown went on leave Feb. 1, and the Canadian Judicial Council revealed it to the public on March. 7. A Supreme Court justice was sidelined but it was all hush-hush.

That’s some creepy Canadian confidentiality.

Last week, the judicial council was preparing to announce that a review panel had determined that the complaint against Mr. Brown should go to a public hearing.

Presumably that panel, which includes four judges and a layperson, had their reasons. Was it the type or severity of the allegations that made the panel find a full-bore complaint process was necessary? Were there facts we didn’t know, or new evidence coming to light?

We’ll never know now. Those questions were all wrapped up when Mr. Brown resigned. The panel’s review decision will not be made public. Transparency is moot.

Chief Justice Wagner told reporters he shared those concerns about transparency. He said that when he received the complaint against Mr. Brown, the rules provided that the judicial council, rather than the chief justice, would decide when to reveal the complaint to the public – so he couldn’t disclose it. He said he suggested the judicial council’s disciplinary bodies review their policies.

Of course, the whole affair is embarrassing for the Supreme Court. “It’s unfortunate,” Chief Justice Wagner said. He added the fact that there are ethical standards for judges should reassure Canadians.

But this episode was not reassuring. A judicial ethics case affecting the highest court was treated like a matter that could be settled by private litigants behind closed doors.