The Decibel - The altercation that led to a Supreme Court Justice resigning

Episode Date: June 22, 2023

Usually the news coming from Canada’s Supreme Court is about the rulings they make, not about the Justices themselves. But the story of former Justice Russell Brown is unprecedented in many ways. It’s one that started in an Arizona hotel and ended with his resignation nearly six months later.The Globe’s Justice writer Sean Fine reports on what happened, how the investigation unfolded and what this means for Canada’s highest court both in terms of public confidence and its composition going forward.Questions? Comments? Ideas? Email us at [e-mail]

Everything about this story is unprecedented and just totally wild and off the charts. Nothing like this has happened before in Canada. Normally, the stories that come out of the Supreme Court of Canada are about its legal decisions. But not this time. Last week, one of Canada's Supreme Court justices resigned, well before he was set to retire from the court. And today, The Globe's justice writer, Sean Fine, is going to explain what led to that dramatic moment and what could happen now. I'm Mainika Raman-Wilms and this is The Decibel from The Globe and Mail. Sean, thank you so much for being here today.

Thank you for having me, Menaka. So tell me a little bit about Russell Brown. Who was he actually before he became a justice on Canada's Supreme Court? Well, he was born in a remote community called Burns Lake in northern BC, community of 1,000 people. His father was a hardware store owner, kind of salt of the earth as described by Russell Brown. And his mom wanted him to get a university education and leave Burns Lake. And so he did that. And then he traveled the world with a backpack, $7 a day, found himself in Poland during the Solidarity protest, then China, the student protests there, Tiananmen Square and all that. So he has quite a past.

He eventually became a law professor at the University of Alberta, where he wrote a very funny, nasty kind of, you know, in a sarcastic way, blog. He described himself in that blog as a conservative libertarian. And he took shots often in a very amusing fashion at Justin Trudeau, who was then, I think, opposition leader at Beverly McLaughlin, who was the chief justice of the Supreme Court, and so on. And that blog showed him as a man who was irreverent, but also someone willing to take on, I guess, conventional thinking in ways of approaching law. How actually did he get appointed to the Supreme Court then? What was that kind of process? In 2013, the Harper government appointed him to the top trial court in Alberta. He was on there for a year and then he moved up to the appeal court of Alberta, the top trial court in Alberta. He was on there for a year, and then he moved up to the appeal court of Alberta, the top court. And then one year later, there was a vacancy on the Supreme Court.

So he moved very quickly through the court system. I just wondered, have you ever actually met Justice Brown? Oh, yeah. Yeah, I've met him. And what's he like? Well, he's very friendly. He's very warm. He's irreverent. He once drove me back to my hotel in Ottawa from the court. He is very well liked all over the place. I had someone in Texas tell me, oh, I can't talk to you about this because he's a good friend of mine and I want to preserve that friendship. It's a very small pond, the Canadian legal world. Okay, so you mentioned that he described himself as a conservative libertarian. So maybe you can kind of flesh that out for us. Like in terms of his judicial philosophy, even his ideology, where exactly does he stand? five to four ruling that really enhanced property rights, which were not protected in the Charter when the Charter took effect in 1982. On criminal cases, he could be liberal. In fact, at times,

he was very outspoken defending the rights of accused people in the system. Now, perhaps that was part of his libertarianism. There was an issue where gay rights came up against religious freedom with a proposed Christian law school that, in effect, wanted to ban gay students or at least make them promise not to have sexual relations, even within the confines of marriage. And he was on the side of the law school, but the court went seven to two on the other side, and the law school did not open in that form. Okay. And we've kind of talked around this with all these examples, but I guess let's just directly address, where do Brown's views fall in relation to the rest of the Supreme Court, the other judges on the court? Well, I mean, he was pushing the court to the right. And at times, as I mentioned, he actually succeeded in, you know, the court adopting his view. But by and large, the court, I mean, right now, well, just before he left, it was five appointees of Justin Trudeau and four from Stephen Harper. And it tended to be a more centrist or a smaller liberal court. And so he was often in dissent.

So, Sean, you cover the Supreme Court. Of course, you're watching this very closely. When did you first notice that something was wrong with respect to Justice Brown's position on the court? Well, he disappeared on February 1st without anyone noticing, including me. And then on February 17th, the court issued a ruling and there was an asterisk by his name indicating that he had heard the case, but he had not participated in the actual decision. So I and other reporters contacted the court. What's going on? They responded, confirming that he was on a paid leave. They would not give reasons for that leave.

Okay, so we knew by mid-February that he was on leave. When did we learn why he wasn't there? So on March the 7th, the Canadian Judicial Council announced that they had received a complaint about him. The council is a body of chief and associate chief justices across the country, and they handle disciplinary matters. And so they would not say why the complaint was made, what was at the heart of it, but they did announce that there had been a complaint. And they said that they were making the announcement to protect public confidence in the system. There have been some complaints before against Supreme Court judges. I mean, we don't necessarily know about them all unless they

reach a public stage. No one certainly was ever put on leave before as Judge Brown was. Okay. So it sounds like there is a significant bar for when they actually, when the CJC, this disciplinary body actually investigates this kind of complaint. That's right. And in the past, they have recommended dismissal for five judges appointed by the feds. Okay. And so what was the complaint against Justice Brown about? Well, it all stems from a night at an Arizona hotel in late January. Judge Brown was there to give a speech in honor of Louise Arbour, the former Canadian Supreme Court judge who was winning a big award from university down there. And then afterwards,

he repaired to a bar and three women were sitting at a table and they invited him to their table and he started talking. And then this man joined them. The man was part of this group with the women. And he found Judge Brown at the table regaling the women and things kind of went downhill from there. The allegation was that Judge Brown was acting creepy. That word is in air quotes. That's how the women phrased it. Judge Brown was drunk and followed them to their room. And the man who was a former U.S. Marine ended up punching Judge Brown in the face a couple

times, knocking him down. So that's it. Essentially being drunk and harassing women. There were allegations, though, that he kissed one of the women and touched her without her consent on her leg, though, right? That's right, on her leg. And there was an allegation of kissing a woman either on her cheek or on her neck. What does Justice Brown say about the incidents of that night? So he denies the allegations and he says that the former Marine, whose name is Crump, Jonathan Crump, attacked him in an unprovoked way. And that the story being told is one meant to get ahead of the possibility that Crump himself would be charged. In other words, he would direct all the police attention to Judge Brown rather than to Crump himself. OK, so in the end, no one, neither Justice Brown or Mr. Crump, no one was charged here.

But Sean, help me out here. How do we get from this incident at an Arizona hotel to a complaint to the Canadian Judicial Council? Like, can you connect those dots for me? Well, it's really hard to connect. I mean, think about it. It's really wild. Another wild aspect of this whole story. The police interviews actually went till about 2 or 2.30 in the morning. You have this U.S. Marine, and he had been drinking clearly, and that was a statement of the officer. And somehow he wakes up that very same day, January 29th, and he figures out how to make a complaint to a federal body in Canada against a Supreme Court judge. It's quite remarkable, really. That very same day is when the complaint was made.

Wow. Okay. And so what happened after that? This complaint is launched. Then what? Well, stuff happened right away. So it goes to the Judicial Council. As I say, the executive director has the authority to dismiss it. Well, stuff happened right away. So it goes to the judicial council.

As I say, the executive director has the authority to dismiss it. In this case, the executive director passed it on to the next stage, which is the chair of their judicial conduct committee takes a look at it and then decides what to do with it. So the chair of the conduct committee, a judge in BC, took about a month deciding what to do with it. And then he passed it on to the next stage, which is a review panel, a panel of five people, four judges and a layperson. They have to decide whether the complaint could possibly merit removal or a recommendation for removal. Essentially, might the judge deserve to be

fired for this behavior? And, you know, after this long process, they got to the point where they said, yeah, he might be fired for this. And that means they had to call a public inquiry. So they ordered a public inquiry, but they never actually went public with this. What they did was just before, like in the moments before they were about to go public, they told Justice Brown about this. And Justice Brown said, well, can I have the weekend, please, to think about my options? And so they were essentially going to release a report that Friday in June. Yeah. And the report was going to contain details, more details of the allegations and the reasons for why they felt a public inquiry had to be held into Judge Brown's conduct.

And then on the Monday, he decided that he was going to resign. So the CJC report ordering the public inquiry was never released. We'll be back after this message. All right, so his resignation happened last week. But what did Justice Brown say about why he decided to do that? What he said was that this process could take well into 2024. The court had already been one member short for four or five months. And this meant they would be short, you know, most of the next year, really. There's another consideration as well that we

don't know what was going to be in that report. There may have been some details that Judge Brown did not want revealed to the public. And there may be other considerations of a more personal nature. I mean, he did say that this has been a strain on me and my family. He's a father of two. And no doubt, the length of the process was itself a great strain. Okay, so Sean, now that Justice Brown has resigned, what happened to that complaint that was filed against him? Well, because he's no longer a judge, the Judicial Council says it no longer has jurisdiction over him. So the complaint is done. Okay, and that's

the complaint. But what about the report that we were just talking about, that the council was set to release before Brown resigned? What happens with that? Well, the council is sitting on it, and it's also in the hands of the Chief Justice and the minister of justice. No one yet has seen fit to release it. And I did a story the other day in which several legal observers from around the country all said unanimously that the council should release the report, that it's in the public interest. And they pointed out an irony that judges always talk about openness being the soul of justice. And yet here, there has been no transparency. Okay, so what would the argument be to not release it? Well, first of all, we don't know if they made an agreement behind the scenes that the council

made an agreement with Justice Brown as part of his decision to resign, not to release it. And that was raised by one of the people I interviewed, an expert in these kinds of issues and processes. And I put that to Judge Brown's lawyer, Brian Gover. He said that we're not talking about the process anymore. So he declined to respond specifically. Their argument on the face of it is just that Judge Brown is no longer a judge, therefore they have no jurisdiction.

The matter is closed. It's all moot. Sean, I guess I wonder, though, because before we were talking about how Brown actually had a differing opinion from the majority on the court anyways. So does his absence actually matter that much if his conservative viewpoint was the minority anyways? Well, yeah, it does matter because the court loses some of its diversity of opinion. And diversity is a good thing. You know, people in the dissent, you know, you made dissent in one generation, but those dissents can live on. And, you know, there's a cliche that today's dissent is tomorrow's majority. And even in his seven or eight years on the court, he had a pronounced effect on some of those interpretive rulings that sort of changed the foundation of charter interpretation. So, yeah, he definitely did matter. And his

absence will matter. And so where does Justice Brown's resignation leave the Supreme Court now? Well, it leaves him in need of a judge. Now, the prime minister, earlier this week, he announced the beginning of the process to select a new judge. And you're looking for a judge from the West because Canada has regional diversity on the Supreme Court. Judge Brand was from the West, so they need someone from the West. Okay. And so this means, as you said, that Trudeau will get to appoint another judge. And this will actually be his sixth pick. So do we have any idea about who he might select?

You said the person is going to be from the West, but I guess beyond that, Sean? Well, he has some interesting choices and decisions to make. For instance, if he appoints a woman, Canada for the first time would have a majority of women on the Supreme Court. Or he could go to Saskatchewan, which has not had a judge in about 60 years on the Supreme Court. There is a very good Indigenous bilingual judge on British Columbia's top court. If he gets appointed, we could have for the first time two Indigenous judges on the Supreme Court after not having any until the last appointment last summer. We know that Justin Trudeau likes to be the first to appoint in certain ways. His father, Pierre Trudeau,

was the first to appoint a Jewish member of the Supreme Court, Borah Laskin. He was the first to appoint a woman member, and that was Bertha Wilson. Justin Trudeau was the first to appoint someone from Newfoundland and Labrador, first to appoint a racialized minority, and then, as I say, the first to appoint an Indigenous member. So keep that in mind. He likes to make an impact in those kinds of ways. One of the things I've been thinking about is the fact that, you know, if this story did involve the American Supreme Court, it seems like it would be a very different story, right? It would have gotten a lot more attention. I guess, are you surprised that it hasn't become a more political story here in Canada? I'm a little surprised that the conspiracy

theories have not really started to swirl around this. I mean, here Canada loses one of its few conservative-minded judges, its most powerful conservative voice, some say in decades, and very little is known, very little is said publicly about it. But the Supreme Court is a very respected institution in Canada. But the members are not sort of the superstars here that they are in the U.S. They're not treated in that way. So we have a completely different attitude here towards our court. Just lastly here, Sean, do you think the situation that's transpired here, do you think it's had a, I guess, a negative impact on people's perception of the Supreme Court? I mean, it's hard to say, and I guess opinions can vary on that.

But to the degree that, say, the chief justice has been seen not to be transparent, it will certainly harm his brand. And I think that may taint the court somewhat. I mean, the chief justice set out in the beginning, giving speeches all around the country and beyond, saying that, you know, public trust in institutions is on the wane. And we have to be very careful not to be so cocky as Canadians that, you know, our institutions can suffer that lack of confidence as well. And he said the antidote to all of that is transparency. And then here he did not announce the absence of a Supreme Court judge. So, yeah, I mean, people have questions. What it'll mean for the court in the medium term or long term is hard to

say. Sean, thank you for taking the time to speak with me today. Well, thank you very much for having me. That's it for today. I'm Maina Karaman-Welms. Our summer producer is Nagin Nia. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.