Russell Brown’s exit from Supreme Court points to need for better process, Chief Justice says

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The Chief Justice of the Supreme Court of Canada says the allegations against former justice Russell Brown are unfortunate, but Canadians should take heart in the fact there was a process at hand to deal with the situation.

At his annual news conference to talk about the state of the court, Richard Wagner said ethical complaints against judges are never acceptable.

“It’s unfortunate,” Chief Justice Wagner told journalists on Tuesday in his first detailed comments since Mr. Brown resigned Monday, after eight years on the Supreme Court. “One complaint is one too many. It should never happen, but that’s reality – it happens. … We’re lucky in this country to have some institutions to take care of those things.”

He said he took pride that judges in Canada – both federal and provincial – were governed by ethical principles and that “if they make an error, a mistake serious enough, there is a process, there is a way to deal with that.”

Mr. Brown resigned Monday, choosing to step down rather than face a public hearing over allegations he harassed women in an Arizona hotel in January.

It is the first time a justice on the country’s most powerful court has quit over a misconduct claim since a public complaints process was created in 1971.

Chief Justice Wagner, who declined to discuss the specific allegations against Mr. Brown, said he shares public concerns about transparency in the process for reviewing complaints about judicial conduct.

It is a slow and opaque process with which he is “not comfortable,” he said, and something he’s wanted to correct since becoming chief justice in 2018.

He said he has asked for reforms and is happy to see Bill C-9, now before the Senate.

It would amend the Judges Act to create a new process for the Canadian Judicial Council to review misconduct allegations that are not serious enough to warrant a judge’s removal. It would also create a new panel to review complaints and determine whether a judge’s removal from the bench could be justified.

“Essentially, rather than having different steps in the decision process, there’s a limit to the number of steps,” said Chief Justice Wagner.

The Canadian Judicial Council, which works at arm’s length from the executive and legislative branches of the government, currently has authority over federally appointed judges and receives, reviews and deals with complaints.

The council did not respond on Tuesday to a request for comment on the Brown case.

On Tuesday, Chief Justice Wagner said Mr. Brown had been absent from the court since Feb. 1 while the judicial council reviewed a complaint against him.

Upon receiving the complaint, Chief Justice Wagner said he called then-justice Brown, who “agreed that the only course of action would be for him to stay away from the court pending the resolution of the complaint.”

The Chief Justice said that although he chairs the council, he has no role to play in the investigation process.

Last Thursday, the judicial council was set to announce it would be holding a public hearing into the allegations but delayed releasing its decision to give then-justice Brown time to consider his options.

The council has the authority to recommend a judge’s dismissal. Since the council was established in 1971, it has recommended five federally appointed judges be dismissed, but none from the Supreme Court.

On Monday, Mr. Brown issued a defiant statement, saying his accuser made false allegations to avoid being charged himself for assault.

“Because the allegations made against me are false, I had hoped this issue would be dispensed with quickly and would not significantly impact the court’s business,” Mr. Brown said. “Sadly, that has not been the case.”

On Tuesday, Mr. Brown’s lawyer, Brian Gover, said in a statement that his client “is keen to put this matter behind him so that the court may focus on its important work.”