The retirement of Justice Russell Brown from the Supreme Court of Canada earlier this week shocked the legal profession. Yet Justice Brown’s retirement—a loss for both his Court and his country—reveals something much deeper about the hide-boundedness of Canadian institutions. The process has set a dangerous precedent.
Justice Brown went on leave from the Court in February following an alleged “drunken altercation” at an Arizona resort involving male and female guests. These core allegations, which Justice Brown denies, were filed as a complaint with the Canadian Judicial Council (CJC), a federal body that has a statutory mandate to investigate alleged judicial misconduct.
In the end, Justice Brown announced that he was retiring after learning that the complaint against him would go before a full inquiry committee, which is only established if there is reason to believe that a matter might be serious enough to warrant the removal of the judge in question.
Recognizing that the inquiry process “may continue well into 2024,” Justice Brown concluded that he had no choice but to retire “so that a replacement judge can join the [Supreme Court] in time for its busy fall term.” Justice Brown continues to deny the allegations against him based on evidence that he and his lawyers argue would have exonerated him.
The premature retirement of Justice Brown appears to be the end of the matter. This is not only to the detriment of one of Canada’s finest jurists and legal minds but to our core legal institutions. Justice Brown’s affair sets a deeply troubling precedent. Maybe, as Chief Justice Richard Wagner does, we can take solace in the fact that there is a process at all. But this is no solace for those subject to its shortcomings.
While Canadians are used to delays and inefficiencies in our public and administrative sectors, the inexplicably prolonged investigation against Justice Brown strikes at the heart of the administration of justice. Based on the information available to the public—which was limited and opaque, a serious problem in itself—it is unclear why it took so long to move this process forward expeditiously, given the stakes.
This lack of clarity directly impacted judicial operations. The Supreme Court was shorthanded as it decided several important cases, including the constitutionality of the Impact Assessment Act, of significant concern to Western provinces. As the Court is asked to decide matters of great public and constitutional significance, the loss of one judge for months—let alone years—cannot be understated.
The CJC process can further put judges on the receiving end of complaints in an untenable position. As Professor Eric Adams of the University of Alberta noted this past week, complaints that meet even a minimum threshold of seriousness can lead to either “precipitous resignations of judges protesting their innocence”—as in Justice Brown’s case—or potentially years of absence. This unenviable choice exists where a CJC complaint (even one of a sufficiently serious nature) ultimately lacks merit but where the allegations can only be disproven at a hearing.
The administration of justice—already taxed in Canada by delays and under-resourcing—now risks disparagement by bad faith complaints against Supreme Court judges. The prospect of an inquiry (along with the glare of media scrutiny and the trashing of their personal and professional reputation) could be enough to compel such judges to resign; even if they possess strong evidence in their defence, they may well conclude (as Justice Brown seemingly did) that “even if I win, I lose”. This strikes at the heart of security of tenure, a core component of judicial independence in any liberal democracy worthy of the name.
Chief Justice Wagner was sadly correct in his remark that the CJC process is “outdated, slow, and opaque”. But for Justice Brown, this is far too little, too late. A better, more transparent process would have allowed him to advance what appears on its face to have been a strong defence. But now, owing to his retirement, the CJC no longer has jurisdiction over the complaint, and Canadians have been denied an opportunity to learn the truth. The ball is now in Parliament’s court (no pun intended) to reform how complaints against Supreme Court judges are processed.
Canadians would be better served by a process that promptly resolves complaints against Supreme Court judges, even if those judges under investigation ultimately choose to retire. In Justice Brown’s case, the process was the punishment: if not by design, then surely by the all-too-familiar Canadian tendency towards complacency in bureaucratic affairs. We must demand more of our public institutions.
