The Canadian Judicial Council’s (CJC) brief March 7 announcement gives no details about who complained, the nature of the complaint or the allegations against the 57-year-old justice who was elevated from the Alberta Court of Appeal by Prime Minister Stephen Harper in 2015.
The CJC, led by Supreme Court of Canada Chief Justice Richard Wagner (who does not get involved in any complaints), said it will not provide any further information “at this time.”
Justice Russell Brown
University of Ottawa ethics law professor Amy Salyzyn told Law360 Canada “when Justice Brown’s absence first came to the public’s attention in February, it was highly concerning to learn that he had been on a formal leave of absence for weeks and for this to apparently only be publicly disclosed after the media had started to ask questions. The recent announcement that a conduct complaint had been made against Justice Brown in late January makes the Supreme Court’s prior lack of transparency on this issue all the more concerning. In the absence of meaningful transparency, the public is left to speculate about what is going on and this does not seem particularly healthy for public confidence in the court.”
In a Supreme Court press release issued after the CJC’s announcement, the Supreme Court said it “may now provide the following clarifications regarding the absence from the Court of Justice Brown.”
The Supreme Court said the CJC notified Chief Justice Wagner of the complaint against Justice Brown on Jan. 31, 2023. “The following day, after speaking with Justice Brown, Chief Justice Wagner put him on leave from his duties at the Supreme Court of Canada, with immediate effect, awaiting a determination of the complaint by the Council. The Chief Justice notified the Minister of Justice of Canada of this decision without delay, as required by the Judges Act. A review of the complaint by the Council is ongoing, in accordance with the Judges Act and the relevant procedures.”
The Supreme Court added “as an open and transparent institution, the Court continues to serve its important role in Canadian democracy and the public interest. In this regard, all necessary arrangements for the Court to continue its work seamlessly have been made, including ensuring appeals are heard, reserved judgments are rendered, and applications for leave to appeal are decided. As set out in the Supreme Court Act, the Court may sit with a minimum of five judges.”
The top court directed any inquiries about the complaint against Justice Brown or the judicial conduct process to the CJC.
Justice Brown’s leave of absence from the top court marks the first known time that a Supreme Court of Canada justice facing the review of a complaint before the judicial council has consequently been put on a leave of absence by the top court’s chief justice. (Certainly a number of Supreme Court of Canada justices over the years have faced complaints at the CJC, that were made public. Most were dismissed as unfounded and none culminated in a formal inquiry on the basis that the alleged misconduct was serious enough to possibly lead to the judge’s removal.)
The CJC said the Jan. 29 complaint against Justice Brown was referred to the chair of the council’s judicial conduct committee, B.C. Supreme Court Chief Justice Christopher Hinkson. On Jan. 31, Chief Justice Hinkson asked Justice Brown to comment on the complaint’s allegations. Justice Brown provided comments on Feb. 20, the council said.
Justice Brown’s absence from his post first came to light Feb. 17 when Law360 Canada reported Justice Brown’s non-participation in a decision on an important military appeal on which Justice Brown sat.
At the time, Law 360 Canada asked the Supreme Court of Canada and Justice Brown, in light of the public interest and the importance of his role, why he was absent and if and when the judge anticipated coming back, as well as detailed questions about what Justice Brown’s absence means for the 15 decisions under reserve on which he sat, and on the composition of the panels for appeals in the ongoing winter session, including some potentially landmark cases, and going forward.
The Supreme Court of Canada did not give such information, citing confidentiality. Justice Brown did not respond to a request for information. The top court did tell Law360 Canada that the chief justice has “made all necessary arrangements for the Court to continue its work in Justice Brown’s absence, including hearing all appeals, rendering judgment on the appeals currently under reserve, and deciding applications for leave to appeal.”
Meanwhile, a cloud of uncertainty and unanswered questions hangs over Justice Brown, the top court and its composition. Members of the bar have also expressed concern on Twitter and elsewhere about the health and well-being of the judge.
This report’s headline was updated to reflect the content of a Supreme Court of Canada press release issued March 7 after the Canadian Judicial Council disclosed earlier that day that the judicial council is looking into a Jan. 29 complaint of an undisclosed nature and origin against Supreme Court Justice Russell Brown.
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