‘One of the Greatest Judicial Minds’: Process to Replace Brown on Supreme Court Will Take Time

A new Supreme Court of Canada judge will need to be appointed to replace Justice Russell Brown. The Canadian Press/Adrian Wyld

The resignation of Supreme Court Justice Russell Brown leaves a big hole in the country’s top court, according to many.

Joanna Baron, a lawyer and the executive director of the Canadian Constitution Foundation, said his loss is “monumental.”

“Justice Brown was a judge of extraordinary rigour and clarity, who consistently hewed to the demands of the rule of law,” she told The Epoch Times.

She said that in his eight years with the Supreme Court of Canada (SCOC), Brown made some significant decisions, such as his dissenting opinion on the federal carbon tax, which was challenged by Ontario, Alberta, and Saskatchewan. In a 6–3 decision, the SCOC ruled in favour of the tax, with Brown being one of the dissenters.

“Brown also offered a strong and lucid defence of the constitutional division of powers in 2021’s Greenhouse Gas Pollution Pricing Act,” Baron said.

“He was skeptical of the move by the majority to accept that Parliament could wade into provincial jurisdiction to legislate reduction of carbon emissions under the ‘national concern’ doctrine, noting that such a move would permanently vest exclusive jurisdiction in Parliament over any matter said to be of the vaguely defined ‘national concern.’”

In another case, she said, involving the City of Halifax, Brown authored an important precedent for protecting property rights in Canada, which are not guaranteed under the charter.

In a different case involving freedom of speech, Brown was one of five judges in a 5–4 decision which ruled that a Quebec comedian who mocked a disabled child singer did not breach the limits of free speech—even though some might find this type of freedom of expression “unpopular, offensive, or repugnant.”

‘Glaring Contradictions’

Brown was appointed to the Supreme Court in 2015 under the government of Prime Minister Stephen Harper, after serving on the Alberta Court of Appeal.

He announced his resignation on June 12, ending a probe by the Canadian Judicial Council (CJC) into allegations of misconduct.

Brown has vigorously denied accusations that he was intoxicated and harassed a group of friends at a resort in Scottsdale, Arizona, in January. His lawyers released a statement on June 12 saying they had been gathering evidence they believe showed the allegations against him “were fraught with glaring contradictions, inaccuracies, and embellishments.”

“We are confident that, in light of all this evidence, Justice Brown would have been completely vindicated at the conclusion of the Canadian Judicial Council’s process. However, the effect of the process on the Court and the considerable strain on Justice Brown and his family, have led him to this decision to retire,” the statement said.

Brown had been on leave since Feb. 1, pending the outcome of the CJC review.

Appointment Process

Brown’s resignation means a new Supreme Court judge will have to be appointed. Chief Justice Richard Wagner released a statement on June 12 calling on the prime minister “to exercise promptly the necessary care and consideration in appointing a new justice of the Supreme Court of Canada.”

But that could take time. In Canada, Supreme Court judges are officially appointed by the governor general, acting on the advice of the government.

They must be either a judge of a superior court, or a lawyer with at least 10 years’ experience. According to the the Office of the Commissioner for Federal Judicial Affairs Canada, they also must be “jurists of the highest caliber, are functionally bilingual, and are representative of the diversity of Canada.”

There are regional considerations for the appointment. By law, a minimum of three of the judges must be from Quebec. And in what the government calls “the custom of regional representation,” it’s customary for three to be from Ontario, one from the Atlantic provinces, and two from the western provinces or Northern Canada.

Since Brown was appointed from Alberta, it’s expected that his replacement will also be from a western province or territory.

One legal group, called “Advocates for the Rule of Law,” released a statement calling on the government to appoint someone able to fill Brown’s shoes.

“Justice Brown’s departure robs this country of one of the greatest judicial minds and legal writers to have presided over the Court in recent decades.  We urgently recommend that the Prime Minister appoint a successor from Western Canada who exhibits a similar legal brilliance and commitment to foundational principles,” said the statement.

While some see Brown as one of the more “foundational” or conservative judges, there’s no guarantee his replacement will have similar views.

The process of appointing judges was revamped in 2016. An independent advisory board was created that makes non-binding recommendations to the prime minister. The goal was to make the process more transparent. The board is currently chaired by Wade MacLauchlan, former premier of Prince Edward Island.

Current Judges

The new judge who will be appointed will be joining a court where the majority of appointees are relatively new.

Five of the eight remaining SCOC judges have only been in place since 2016, meaning they’ve been appointed under the Trudeau government.

The longest serving is Justice Andromache Karakatsanis, who was appointed by the Harper government in 2011. Chief Justice Richard Wagner was first appointed to the court in 2012, also under Harper, and named chief justice in 2017. Justice Suzanne Côté was appointed in 2014.

Russell Brown was the final Harper government appointee, taking the position in 2015.

In 2016, Justice Malcolm Rowe was appointed, followed by Justice Sheilah Martin in 2017, Justice Nicholas Kasirer in 2019, Justice Mahmud Jamal in 2021, and Justice Michelle O’Bonsawin in 2022, who is a member of the Odanak First Nation.