Like The Hub?
Join our community.
Join

Richard Shimooka: Ukraine launches its counter-offensive, but war unlikely to end soon

Commentary

In 1999, after nearly a decade of ethnic conflicts that had emerged from the collapse of the USSR, Edward Luttwak penned a provocative article in Foreign Affairs titled “Give War a Chance.” It reflected the moment he was writing. The West had undertaken a number of multinational interventions over the past decade, which had served to establish an unstable political equilibrium that was likely to reignite into a military conflict in the future. As he noted, “War brings peace only after passing a culminating phase of violence. Hopes of military success must fade for accommodation to become more attractive than further combat.”

To be clear, parts of Luttwaks’ article have not aged well, and some of its central arguments remain contested, but this observation remains relevant for the ongoing war in Ukraine because it is clear that neither side of the conflict seems willing to reach an accommodation, and perhaps not even after this ongoing Ukrainian offensive. 

At present, Ukraine has launched its much planned-for counter-offensive following weeks of smaller, shaping efforts and probes. Its broad aim is to push back the Russian Federation out of its territory and reinvigorate the war effort. 

Militarily the war’s status has ossified to some degree, as its trajectory (or at least this phase of it) has become largely bounded. It reflects the military realities on the ground as well as the political dynamics within and between the two primary combatant states and their allies. 

On the one side, the Russian Federation’s armed forces have largely been spent as an effective force. It will take years of significant investment to even approach the land combat capabilities it possessed before it launched this disastrous invasion. While mobilization has swelled its ranks, a significant proportion of its material has been drawn from stocks that date back to the 1970s or even earlier. They’ve been bolstered by newer systems, such as the Lancet loitering drone, that have been effective at attriting Ukrainian forces. 

Much of its doctrinal changes have been to mitigate Ukraine’s new tactics and weapons, such as the HIMARS and newer long-range artillery systems. While they seem to provide the Russian Army with more effective capabilities, they will not in fact enhance the military’s combat capability—quite the opposite. They may well limit its ability to conduct offensive operations. With its command and control and logistics under persistent threat, it has dispersed many of these functions or pulled them beyond the range of Ukrainian systems. That is partly why the United Kingdom’s provision of the Storm Shadow missile, with a range that exceeds the HIMARS system, has been an important tool to re-threaten these key nodes and disrupt Russian operations. 

Their new units may not be able to undertake a large-scale offensive action like that witnessed early in the war. Instead, the Russian army is essentially only configured to hold the gains it currently has. Putin’s broader strategy remains to wait out Ukraine and its international allies in order to obtain some sort of peace. 

At the same time, the Ukrainian military has suffered grievous losses over the past year, though, unlike the Russians, it has broad access to alternative NATO systems that are frequently of a better quality than their counterparts. It has both a heterogeneous and homogenous doctrinal mix of former Soviet, Western, and Ukrainian-developed doctrine, often depending on which unit one looks at. While its military has hundreds of thousands of soldiers in the field, the counter-offensive’s spearhead rests heavily on the shoulders of three army corps assembled over the past nine months, perhaps up to 40,000 soldiers

This force has likely the most capable units currently deployed in the Ukrainian war: it includes peerless Western main battle tanks like the Leopard 2A4/5/6, Bradley and Stryker infantry fighting vehicles, and well as armoured engineering vehicles. 

At the same time, it is not a large force, and relatively small combat losses will sap its overall combat potential. The challenge facing Ukrainian commanders is to find weaknesses in the Russian lines, which they can exploit and rapidly collapse defensive positions. This will not be an easy task. Russian combat engineering has spent the past six months fortifying much of the territory it captured in the first month of the conflict, particularly the southern axis in Zaphorizia Oblast, which seems to be the focus of the initial attacks over the past week. Furthermore, the force potentially faces an immense challenge in taking major cities like Mariupol, Melitopol, and Dontesk, which as the experience of Bakhmut suggests, can be extremely difficult and costly to dislodge. 

With these challenges taken into account, the potential range of purely military outcomes is bounded to a stalemate where there is still a major Ukrainian battlefield victory, but far from a total one. Ukraine is unlikely to eject the Russian Federation from all of its occupied territories this year. Retaking a major city like Mariupol, the scene of a heroic resistance by Ukrainian troops last year, might represent a realistic best-case scenario for the offensive, with significant swaths of other territories, including Crimea, remaining under Russian control. 

With the possibility of a military resolution to the conflict unlikely to manifest, attention must zoom out to the broader political dimensions at play.A much fuller discussion of the broader aims of both parties was discussed in a previous column.

Ukraine certainly wants to avoid any agreement that freezes the status quo as this is the Kremlin’s position and part of its well-worn playbook. This would allow them to keep the existing gains and then leverage them to undertake actions to destabilize Ukraine in the future, just like in 2014 and the annexation of Crimea, or Georgia in 2008. War weariness among the populace, admittedly a qualitative assessment, not a quantitative one, seems to be fairly low at this time, with all major political groups backing the continued war effort. However, this may also hinge on the perceived outcome of the ongoing offensive. 

Recently, one of the most significant events in this war did not occur in Ukraine, Russia, or Europe for that matter but in Washington with the McCarthy-Biden Debt Ceiling deal. It preserves existing national defence funding, and by extension existing levels of support for Ukraine for the next year. In some way, this was a more grievous wound to Russia’s prospects in Ukraine than what the Ukrainian military offensive could achieve. While the Biden Administration would still need House Republicans to pass the budget next year, this tends to be much less contentious than debt ceiling negotiations. It also exposed how isolated the Ukraine skeptics within the U.S. Congress were—essentially a handful of extreme Republican and Democrat congressmen. Furthermore, the indictment and arrest of former President Donald Trump further marginalizes one of the most strident voices, thus limiting the potential appeal of such a position. 

Taken together, Ukraine should be able to count on their largest financial and military backer to sustain support for over the next year and a half of war. Material losses, like the Bradley Infantry Fighting vehicles observed lost in the past week, will be quickly replaced. 

Furthermore, American leadership has been critical for Ukraine’s prospects in this war, as it has been effective at dragging recalcitrant allies such as Germany and France into continuing their tepid support of the war effort. Major investments in the defence industrial base made last year, such as increased production of artillery shells, should also help to alleviate shortages in key areas, further assisting efforts on the ground. In some way this inverts the existing calculus that playing for time was inevitably in Russia’s favour, as Western support for Ukraine now seems much more durable politically.

That all being said, it is difficult to know what the internal political dynamics within Russia and the Kremlin are at this time. Authoritarian states at war tend to remain fairly stable for a number of reasons even when faced with a poor military situation due to a rally around the flag effect and greater repressive measures, both of which are evident in Russia today. While Western economic measures have crippled the Russian economy, Moscow seems to have been able to make some important steps to reduce their efficacy. 

Trade policies reminiscent of the ones implemented by Iraq under Saddam Hussein, North Korea, and Iran seem to have had some success in attenuating the sanctions’ efficacy. They have achieved two important objectives: shielding the population from the worst privations of the Western sanctions and supporting the war economy. This does not mean this will change suddenly, but at this time there seems little effort within Russia. 

Thus, while the images of the offensive, with potential successes and losses, become apparent over the coming days and weeks, they really need to be placed into a broader context. It should be clear that it may be months if not years before a durable political equilibrium becomes apparent. Neither side seems willing to come off of their existing positions and find an accommodation. It may well take several more offensives and other broader political shifts to push the Russian Federation off of its existing positions and accept the futility of their invasion. Western nations must realize that support for Ukraine needs to remain robust and steady in order to achieve this ultimate goal.

‘A terrible precedent’: The Hub reacts after Supreme Court Justice Russell Brown steps down

Commentary

Russell Brown announced on Monday that he would step down as a justice of the Supreme Court of Canada. The decision comes after the Canadian Judicial Council began probing a claim of misconduct against Brown related to an incident in the United States and for which the former justice has denied any wrongdoing.

Here at The Hub, we’ve assembled a handful of the country’s top legal minds for their instant reactions to Brown’s decision to step down and to explain what it means for law in Canada.

An indictment of the disciplinary process for Canadian judges

By Yuan Yi Zhu, an assistant professor of international relations and international law at Leiden University

Justice Russell Brown’s resignation from the Supreme Court of Canada is a blow to the quality of Canadian jurisprudence, which has for too long laboured under the baleful McLachlinism of the majority in the Supreme Court. But it is also an indictment of the disciplinary process for Canadian judges, which has long been unfit for purpose.

From Chief Justice Wagner’s decision to place Brown on an immediate leave of absence without official explanation on the basis of a flimsy complaint filed by a man who had assaulted his colleague, to the Canadian Judicial Council’s unbearably sluggish preliminary investigation which took the better part of half a year, to the numerous leaks from well-informed insiders to favoured journalists, the whole process has been designed to be as exhausting and wounding to Justice Brown as possible.

There can be no better illustration of what American law professor Malcolm Feeley described as “the process is the punishment.” Even if Justice Brown had been fully exonerated at the end of the open-ended process, his reputation would still have suffered, not to mention the fact that he would have been barred from exercising his chosen profession for the duration of the investigation, which could have run into years. Little wonder that he chose to resign, in the process forfeiting substantial pension rights and the opportunity for vindication, to put it all behind him.

Some readers may remember the case of Justice Lori Douglas, who was also dragged through the mud by the CJC’s open-ended investigative process without end in sight. Her main crime in the eyes of the CJC was that she had been the victim of revenge porn. After five years, Douglas resigned—humiliated and exhausted by the ordeal.

At the time, the CJC justified its vendetta on the grounds that the presence of the pictures on the internet was “inherently contrary to the image and concept of integrity of the judiciary,” thus undermining public confidence in the justice system. But what really undermines public confidence in the justice system is the sorry sight of a disciplinary process in which judges cannot even do justice to their own colleagues.

Brown’s departure leaves a yawning intellectual hole on the Court

By Howard Anglin, contributing writer at The Hub and doctoral student at Oxford University

When Russell Brown joined the Supreme Court of Canada in 2015 from the Alberta Court of Appeal, it was a place of comfortable conformity. While the apex courts in other countries regularly divide in sharp contests over the foundational questions of adjudication—What are the sources and limits of judicial legitimacy in a democracy? How do we apply generally-stated rights to specific situations?—ours had become known for an unusual degree of incurious unanimity. This is usually, and I think not unfairly, attributed to the influence of Beverley McLachlin, who as Chief Justice enforced benignant mediocrity with a firm hand.

Enter Justice Brown, a distinguished law professor with a decidedly Western view of Central Canadian establishment pieties and unafraid to question the Court’s stale dogmas. Even more surprisingly, he did so with a verve rarely seen in a judicial culture that discourages rhetorical flourish almost as much as it distrusts intellectual vigour. In dissents in cases such as References re Greenhouse Gas Pollution Pricing Act (defending the principle of federalism) and Trinity Western University v. Law Society of Upper Canada (defending religious freedom), he deftly punctured majority decisions that read Laurentian fashion into the constitutional text. And in Frank v. Canada (a non-resident voting case) he authored perhaps the most intellectually interesting opinion in recent Supreme Court history, challenging the very way the Court conceives of rights and their limits.

But I don’t want to give the impression that his legacy lies only in his dissents. As a persuasive writer and genial colleague, Brown was as adept at bringing along his colleagues in a majority opinion as he was dissecting them from the minority. His departure leaves a yawning intellectual hole on the Court. The Supreme Court today is a more jurisprudentially diverse body than it was eight years ago when he joined it, but it is always a threat to resume its old ways of lazy collegiality. If it does, at least future justices and scholars will have Brown’s trove of fine writing and clear thinking to challenge, inspire, and shake them out of that all-too-Canadian tendency to complacency.

His track record on the Supreme Court is extraordinary

By Joanna Baron, contributing writer at The Hub and executive director of the Canadian Constitution Foundation

Canada’s loss of Russell Brown following the announcement of his early retirement is monumental.

In writing this I have the mournful sense of writing a too-early judicial eulogy. Justice Brown was a judge of extraordinary rigour and clarity, who consistently hewed to the demands of the rule of law, namely clarity, consistency, and congruence.

His legacy includes his dissent in 2020’s Nevsun, a case where a majority of the Supreme Court decided, rather oddly, that a hotly contested norm of customary international law could be binding on Canadian courts. As Brown revealed, the whole point of customary law is that a practice has become so universal that its adoption as law is natural, and here the proposed legal claim—direct corporate liability for human rights violations—was novel and itself the case’s central controversy.

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

And in 2022’s Annapolis v. Halifax, a case where the City of Halifax promoted the use of a piece of privately owned land as a city park without offering compensation to the land’s owner, Brown authored an important precedent for protecting property rights in Canada (which are not guaranteed by the Charter). He traced back the protection of property rights to the common law on “takings.” The Court cited cases from the 1800s for this proposition, but the same principle of natural justice—that if the government confiscates your property you are entitled to compensation for it—likely is much older. And the decision in Annapolis importantly emphasized that such ancient common law rights continue in force, even if they are not part of the far younger Charter.

His track record in just under eight years on the SCC is extraordinary. It’s sad to consider the counter-history of what his judicial career might’ve been otherwise.

Members of the Supreme Court pose for a photo on Oct. 28, 2021 in Ottawa. Adrian Wyld/The Canadian Press.

Canada needs more Russell Browns

By Sean Speer, The Hub’s editor-at-large

Conservatives often despair about their influence over policy and politics in Canada. But their lack of influence can be overstated. At various points in my own lifetime, conservative ideas about free markets and limited government have been on the ascendancy. In recent years, there’s been promising signs in some provinces of conservative education and health-care reforms. And we’ve even seen in recent days budding signs of conservative pushback against the excesses of identity politics and so-called “wokeism.”

The one area though where conservative despair has been justified is the judiciary. The “living tree” view of the Constitution has been the dominant (even the sole) judicial philosophy at law schools and on the bench for more than a generation. This of course has been at a time when the Charter has made the judiciary a critical locus of policymaking and political decisions. It’s notable for instance that many of the biggest political developments in the past forty years or so have come from left-wing judicial decisions including, most recently, the creation of a previously-rejected right to physician-assisted death.

Yet this despair about the progressive monopoly over the judiciary has been replaced in recent years with hopefulness about a new generation of law students and scholars who’ve begun in earnest to build an intellectual ecosystem that’s rigorous, substantive, and ultimately capable of challenging the prevailing legal monoculture.

Mr. Russell Brown was an important part of these developments. After being appointed to the Supreme Court by Prime Minister Harper in 2015, he became something of an intellectual beachhead for this burgeoning movement. He seemed to self-consciously understand this role.

His judicial dissents, including in high-profile cases like References re Greenhouse Gas Pollution Pricing Act and Trinity Western University v. Law Society of Upper Canada, gave this emerging cohort of conservative legal thinkers and practitioners a credible and different way to think about individual rights, the division of powers, and the role of the court. They represented an alternative future in which the court was far more circumscribed about reading its political preferences into the constitution.

His departure from the bench, therefore, represents a regrettable blow to these efforts. That future now feels farther away especially since he’ll predictably be replaced by another “living tree” exponent.

It’s important however, particularly for the young people involved in the legal movement that Brown came to personify, that it must ultimately be bigger than one person. While his resignation creates a significant void, it cannot bring an end to these efforts. Quite the contrary. It reinforces the need for more Russell Browns.

An honourable act by an honourable man in a dishonourable process

By Geoffrey Sigalet, the director of the UBC Centre for Constitutional Law and Legal Studies

Justice Russell Brown’s retirement constitutes an honourable act by an honourable man in a dishonourable process. The grounds for the Canadian Judicial Council’s investigation of Justice Brown are based on the words of a drunk ex-marine who told the policeman interviewing him “Shut up man, just shut your mouth.” Many of the ex-marine’s allegations were disproven by video and his companions’ social media posts. The most serious allegations against him—that he engaged in unwanted sexual advances—were made in the context of serious credibility issues and, if true, may not warrant removal from the bench. Making sexual advances toward strangers in a bar is allowed so long as basic boundaries are observed.

From what we know, Justice Wagner claimed to have “put [Justice Brown] on leave.” It is difficult to understand how Chief Justice Wagner could claim the power to put a puisne judge on involuntary leave. There is no authority for this under the Judges Act (which only contemplates voluntary leave for six months without cabinet approval). There is no precedent for a leave of this nature; though chief justices have authority to decline to assign judges credibly accused of potentially removable conduct to new cases, they are still allowed to complete their reserves and work with their colleagues in such a situation. Justice Brown was denied this. This essentially meant that Chief Justice Wagner removed a judge from our highest Court, which sets a terrible precedent for how to handle future complaints and threatens judicial independence.

As a result, Canada has lost the voice of one of its finest jurists on the Supreme Court. At a time of strong Western alienation, Alberta and Western Canada have lost their only true representative on the Court. Justice Brown was the only member of our highest Court to be born and raised for most of his childhood West of Ontario. (Justice Sheilah Martin deserves respect but she was born and raised in Montreal and her views on federalism and constitutional interpretation are in line with the centralizing “living tree” consensus.) The West has lost its most ardent champion for constitutional federalism, and that should not escape the attention of Premiers Eby, Smith, Moe, and Stefanson as the Liberal government begins to search for a new candidate to fill Brown’s Western seat on the Court.

The closing of the judicial mind

By Kerry Sun, a research associate at the Centre for Constitutional Law and Legal Studies, University of British Columbia Okanagan

The untimely retirement of Justice Brown from the Supreme Court of Canada marks a major loss for the juristic integrity and intellectual coherence of Canadian law. In an institution often characterised by right-thinking and straining for preferred results over right reason, his jurisprudence swam against the tide. He provided a cogent and reasoned, if inconvenient, voice against the imperious propensities of the Court and its own ideological blind spots—perhaps singularly exemplified by his dissent (with Justice Côté) in the Trinity Western University case, where he appealed against the majority’s “pernicious”, “far-reaching”, and “intolerant” judgment that effectively excluded a religious community from public life. 

In both public and private law, Justice Brown’s reasons modeled fidelity to legal principle and coherence over “policy-based” decision-making, a domain he rightly viewed as falling beyond the proper limits of judicial power. Indeed, some of his most notable contributions were in dissent, such as critiquing the Supreme Court’s tendency to conceal its moral presuppositions within the technical-sounding device of “proportionality analysis” (R. v. K.R.J.); refuting the assumption, shared by many judicial supremacists, that Parliament is incapable of reasoning about rights and acting for the common good (Frank v. Canada); and unravelling Court’s assertion that Canadian federalism permits “minimum national standards” to be foisted upon the provincial governments (Reference re GGPPA). Equally, however, this fidelity to principle and legal learning informed his private law judgments, where he placed constraints on the role of “policy considerations” in tort law (Livent and Maple Leaf) and, among other things, defended the distinctiveness and integrity of the common and civil law traditions against a homogenising, reductive school of thought (Callow v. Zollinger). 

Justice Brown’s jurisprudence took the law seriously, as animated by an internal logic and “legal language”—and not merely an instrument of judicial policy or preferred dogmas. It is why legal conservatives rightly regard Justice Brown as an intellectual leader, and why his premature departure is a true intellectual loss. His contributions should remind us that judicial activism is not a static question of whether the courts are frustrating the will of Parliament, but how judicial decisions are justified and whether they adhere to essential principle and the reason of the law.  

For the inquisitive law student, therefore, Justice Brown’s legal corpus will repay careful study. For the Supreme Court of Canada, one may fear, his departure is a harbinger of the closing of the judicial mind.

Brown’s departure is a significant blow

By Stéphane Sérafin, an assistant professor at University of Ottawa

Justice Brown was the Supreme Court’s only true common lawyer and one of the few judges that would consistently give voice to the best aspects of our inherited tradition.

His departure puts an end to any serious challenge to the new role that the Court fashioned for itself in the post-Charter era, as a forum of “policy” akin to a legislature instead of one dedicated to adjudicating disputes and developing legal doctrine.

The implications are profound. In high-profile cases, Justice Brown has frequently served as the decisive vote and authored reasons that strive to provide a coherent and rational account of foundational principles. He has done the same in many less-noticed contract, tort and property law cases as well. 

From Charter rights to the separation of powers to tort, contract law and property law, his departure is a significant blow for those of us who care about the proper role of the judiciary.

A singular voice in Canadian law

By Asher Honickman, the president of Advocates for the Rule of Law, and Gerard Kennedy, the executive director of ARL

We are saddened to learn of the retirement of Justice Russell Brown from the Supreme Court of Canada. Over the past 8 years, he has been a singular voice seeking to bring doctrinal coherence, fidelity to precedent, and legal predictability to vastly different areas of Canadian law. All the while, he has taken the lead in unearthing and expounding a Canadian doctrine of the separation of powers. These commitments will live on in his majority, dissenting, and concurring decisions such as Quebec (Attorney General) v 9147-0732 Québec inc; Toronto (City) v Ontario (Attorney General); Atlantic Lottery Corp v Babstock; Uber Technologies Inc v Heller; and Wilson v AECL, which doubtless influenced the majority decision of which he was part in Canada (Minister of Citizenship and Immigration) v Vavilov.

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.

We understand what a difficult decision this must have been for Justice Brown and wish him success in all of his future endeavours.