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In Defence of Justice Russell Brown

  • August 8, 2015
  • Clayton Rice, Q.C.

A lawyer in Victoria, British Columbia. An intern at the British Columbia Provincial Legislature. A member of the bars of Alberta and British Columbia. A doctorate in law from the University of Toronto. A law professor at the University of Alberta in Edmonton. A justice of the Court of Queen’s Bench of Alberta and then the Alberta Court of Appeal. If that sounds to you like a track record for appointment to the Supreme Court of Canada without a bump in the road – well, it is. Unless you’re a blogger.

On July 27, 2015, the Prime Minister announced the appointment of Justice Russell Brown to the Supreme Court of Canada filling the vacancy left by the retirement of Justice Marshall Rothstein from Manitoba and thus filling one of the the two seats on the court for the western provinces. The other western appointment is Chief Justice Beverley McLachlin from British Columbia. That the Prime Minister again passed over candidates from Saskatchewan has gone by without much of a stir. But not the blogging.

The press has been reporting on Justice Brown’s blog posts while he was a professor at the University of Alberta, Faculty of Law. The university’s Faculty Blog (http://ualbertalaw.typepad.com/) is an award winning blog and Justice Brown’s posts were provocative, topical and cheeky. I will pick six examples to give you the flavour and range of them as reported in the media. I should tell you that I did not search them all out because the posts themselves are not important here. What is important is what the press said about them. I’ll get to that later. Stick with me.

  • By the way, did anyone notice when McLachlin CJ spoke at the law school on Friday that she listed China (!?!?!?) as one of the countries whose constitutional law might be a helpful source from which to draw? Frankly, if the SCC justices are going to dabble in comparative legal analysis in order to ‘inform’ the content of Canadians’ constitutional rights, I’d prefer they stick to countries that observe the rule of law.
  • My own preference would be to democratize the Senate (thus presumably throwing out the deadwood and injecting new life into the place) and give it more work to do (i.e. vetting SCC nominations). Still, abolition is better than the status quo.
  • I hope [the West] makes the case for democracy in Tibet and concomitantly for freezing the mediaeval nut cases from power…Otherwise, we simply replace a distinctly modern totalitarianism with a Himalayan version of the ayatollahs.
  • As someone who hopes the Grits just fade away by the next election, I’m cheering for Justin Trudeau or Joe Volpe. Or have I missed a possible candidate who is as unspeakably awful.
  • Parliament conferred upon the Court powers to interpret the rules of the game, not to determine how and when someone can quit the game. If there ever was a question for legislatures and parliaments to sort out for themselves, subscription to and disassociation from a federal structure is surely it, no?
  • Perhaps I’m reading too much into this, but I could not help being struck by the penultimate sentence in Chief Justice McLachlin’s news release announcing the imminent retirement of Justice Bastarache. ‘I know,’ the Chief Justice said, ‘that the Canadian government will consider the appointment of a new justice with the care and deliberation required.’ Again, I might be reading too much into this, but it seems to come off more as a shot across the bow, rather than as a genuine expression of being reassured. Kind of like the way we tell our kids, ‘I know you wouldn’t think of tracking mud into the house,’ when we’re afraid they are about to do just that.

Described as a conservative libertarian, Justice Brown’s posts targeted issues as diverse as climate change, the death penalty, health care, banking deregulation, and U.S. vice-presidential candidate Sarah Palin. His comment on the Anglican Church was particularly funny: “[It] seems to have morphed into some deeply weird post-Christian eco-pagan group run by a flaky fringe of the graying Godspell crowd.” And this one about a photo of Bob Rae planting a smacker on Michael Ignatieff: “Maybe Iggy should make a Sexual Harassment in the Workplace Complaint.”

Reading through Justice Brown’s posts, it becomes clear that he believes in free speech although he’s not an absolutist. And he was so full of it! The press has been universal in support of his pre-judicial speech. In an article titled Supreme Court appointments in the digital age published in the Ottawa Citizen edition dated August 6, 2015, Adam Dodek wrote:

“…Justice Brown is the first academic from the digital age to be appointed to the Supreme Court. His every blog and every comment are archived on the internet for all to see. Should that disqualify him from appointment to the Supreme Court? Absolutely not. In a decision artier this year, Justice Abella wrote that: ‘Judicial impartiality and neutrality do not mean that a judge must have no prior conceptions, opinions or sensibilities. Rather, they require that the judge’s identity and experiences not close his or her mind to the evidence and the issues. There is, in other words, a crucial difference between an open mind and an empty one’.”

The real uproar in the media has been about the process of making judicial appointments and not so much whether Justice Brown is a conservative, a libertarian or a conservative libertarian. The irony is that Justice Brown was himself critical of the process that got him to where he is – a process that lacks transparency and is still bruised by the Marc Nadon fiasco. But there is nothing new about prime ministers appointing conservative judges. Or liberal ones. In an article titled So what if Russell Brown is a conservative Supreme Court judge? in the National Post edition of July 31, 2015, Jen Gerson quoted Professor Emmett Macfarlane of the University of Waterloo as saying: “There’s a whole subclass (suggesting) that appointing a certain type of judge is a brand new thing, that Harper is undoing a 30-year history of objective appointments, which is nonsense. Pierre Trudeau famously reformed the court by looking for judges who were going to take a more assertive role, who were going to be reformers…even before the Charter of Rights.”

Adam Dodek put it well in an article titled Accountability needed: Why was Justice Russell Brown appointed to the top court? published in The Globe and Mail edition dated August 5, 2015:

“What Canadians really need, however, is to hear from the Minister of Justice or from the Prime Minister as to why they chose Justice Brown over many other supremely qualified candidates in Alberta, Manitoba and Saskatchewan. Some have expressed the view that Justice Brown was chosen precisely because he had expressed such strong pro-Conservative and anti-opposition views.

Neither Justice Minister Peter MacKay nor Mr. Harper has said anything to disavow this sentiment. In fact, neither of them has uttered one word to explain why Justice Brown was chosen. This is despite Mr. MacKay’s musings last month on the need for more transparency when it comes to the Supreme Court. He is absolutely right and that transparency should start with him and his boss. They owe the Canadian people an explanation. The cancellation of public hearings on Supreme Court nominees means that we won’t get one that way.”

And that takes me to my point here. I know. The one you’ve been waiting for! We live in an era of Canadian history when democracy has been imperilled by the absence of effective political opposition while the Conservatives are dismantling the character of the nation. The Liberals are hardly an effective opposition. Justice Brown was right. Justin Trudeau is “unspeakably awful”. And Thomas Mulcair does not inspire with leadership stature. The real opposition in Canada has come from other sources and institutions.

I have written about this before. Stewart Prest identified one source of opposition as the shift in the “primary axis” in Canadian legislative politics. In a column in the National Post titled An informal coalition of experts has become the most effective opposition to the Tory government dated March 20, 2015, Mr. Prest wrote that: “…[T]he relationship that matters most at the moment is not the one between governing and opposition parties, but between the government in office and a series of loose coalitions of actors normally existing at the periphery of politics.”  Between Bill C-51 and Bill C-23 (the Fair Elections Act of 2014) we got a good idea of what these contemporary coalitions look like. (See my post: Informal Coalition Opposes Canada’s Anti-Terrorism Bill dated March 22, 2015)

But I see this as broader than Mr. Prest does. I see the coalitions as one part of the tripartite alignment of the non-aligned. The other parts are two constitutionally protected institutions which, when they’ve been at the top of their games, have reigned in Harper-style conservatism – the Supreme Court of Canada and the Canadian media, particularly print and digital media. The Supreme Court has been instrumental in controlling some of the unconstitutional excesses of the Conservative government. Do I want the court to do more? Yes. But that’s a post for another day. And the media has picked up the slack when Mr. Trudeau and Mr. Mulcair live down to our expectations. The appointment of Justice Brown is a good example. As Mr. Dodek said – we have heard nothing from the government. But for some good reporting, the debate about his appointment would never have happened and I would have missed his blogging. Journalism matters.

Because I’m a blogger then, I get to say this: “Hey, Russ. On behalf of Beverley McLachlin. Welcome to the Supreme Court of Canada. Oh, and wipe the mud off your shoes at the door.”

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