Public, bar left in dark about Justice Brown’s ongoing leave of absence from Supreme Court

Law360 Canada (February 23, 2023, 5:26 PM EST) -- The Supreme Court of Canada, despite its strong reputation for public and media communications, is declining to disclose any information about the mysterious — and apparently indeterminate — leave of absence from judicial duties taken by Justice Russell Brown on Feb. 1.

The fact that Justice Brown has been on leave since Feb. 1 only emerged Feb. 17 in response to a query from Law360 Canada, following the court’s 8-0 decision that day in R. v. McGregor, 2023 SCC 4, a much anticipated Charter judgment, which indicated “*Brown J. did not participate in the final disposition of the judgment,” notwithstanding that he actively participated in the hearing last May. 

“It is certainly unusual and concerning for a Supreme Court of Canada justice to be on a formal leave of absence for weeks, and for this to apparently only be publicly disclosed after the media has started to ask questions,” University of Ottawa law professor Amy Salyzyn, an ethics expert, remarked when asked for comment.

“I would expect that, in the interests of transparency, the court would want to announce that one of the justices has taken a leave of absence,” said a second expert on ethics and professional responsibility, Gavin MacKenzie of Toronto’s MacKenzie Barristers, who noted “I could appreciate that there may be privacy considerations that may have to be taken into account in some situations.”

Asked for its view on the top court’s decision not to disclose any information about the leave of absence, the Canadian Bar Association responded Feb. 23 “the CBA will not be commenting on this at this point.”

The court’s flagging of Justice Brown’s non-participation in McGregor prompted questions and concerns on Twitter and within the bar, as to whether he is ill or otherwise unable to work. There were also questions asked about why he did not sign onto one of the three McGregor opinions the court handed down Feb. 17, given that he was working and hearing appeals in January and had participated in the McGregor appeal, including granting contested leave to intervene applications by several groups who asked the court to revisit its oft-criticized ruling in R. v. Hape, [2007] 2 S.C.R. 292, and who were surprised to be told by six of the eight judges who ruled in McGregor that the groups had exceeded their intervener role by doing so.

On the premise that the top court has reasonable transparency obligations to disclose to the public the existence of, and basic information about, formal leaves of absence taken by the court’s members, Law360 Canada asked Supreme Court of Canada Chief Justice Richard Wagner detailed written questions, including asking about: the reason for Justice Brown’s leave; whether and when the judge might return; impacts on the 15 reserved appeals heard by Justice Brown and what will happen in the event of tie votes in those cases; the configuration of future panels in cases where the court would normally sit nine; and any other impacts on the court’s operations. Law360 Canada also wrote Justice Brown (who did not respond) asking for basic facts best known to himself, i.e. why has he taken a leave of absence and whether — and when — he anticipates/hopes to be back working at the Supreme Court of Canada?

The Supreme Court of Canada’s executive legal officer and chief of staff, Stéphanie Bachand, told Law360 Canada by email that “unfortunately, I cannot disclose why Justice Brown is currently on leave, to respect confidentiality. There has been no statement by the Court for this same reason. The Chief Justice notified the Minister of Justice without delay, in accordance with section 54(1.1) of the Judges Act.”  

(Under the Judges Act, Chief Justice Wagner must notify federal Minister of Justice David Lametti when he has granted a judicial leave of absence of no more than six months — the maximum leave a chief justice may authorize. Moreover, “whenever a judge of a superior court is absent from the judge’s judicial duties for a period of more than 30 days, the judge shall report the absence and the reasons for it” to the justice minister. Absences from judicial duties for more than six months require federal cabinet approval. The Act does not address short-term absences for vacation or sick days, which administration are overseen by the chief justice. Lametti's office referred questions about Justice Brown's leave of absence to the Supreme Court.)

In written requests for information to the Supreme Court since Feb. 17, Law360 Canada acknowledged that sensitive personal privacy considerations are in play when any Supreme Court judge is absent from judicial duties. However, it was suggested that considerations of the public interest and reasonable transparency also weigh substantially in the balance, noting for example, that the U.S. Supreme Court and some of its justices have disclosed information about health matters affecting members of that bench, including about the seizures experienced intermittently by Chief Justice John Roberts and the health challenges faced by the late Justice Ruth Bader Ginsburg, including cancer treatments.

Moreover, the current informational vacuum with respect to Justice Brown’s leave is generating concern, speculation and possibly misinformation, within the bar.

At the annual meeting of the Supreme Court of Canada’s media liaison committee, following Justice Clément Gascon’s 2019 retirement from the top court for reasons related to illness, Chief Justice Wagner was asked to consider creating protocols or guidelines around when and how judicial leaves are communicated publicly — in part to assist the media with reporting accurately and in a timely way on judicial illnesses/absences affecting court operations.

At age 57, Justice Brown is the court’s third most senior puisne judge, after Justices Andromache Karakatsanis and Suzanne Côté. He will be eligible for a full retirement pension in 2025 after serving for a decade on the Supreme Court of Canada.

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