Russell Brown’s departure leaves court free to trample on liberties

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On Monday, Supreme Court Justice Russell Brown surprised the whole country by retiring on the eve of a Canadian Judicial Council (CJC) hearing into his alleged misconduct. The accusations arose out of a bizarre and mysterious January affray at a resort in Arizona; while the council was investigating, Brown took a leave of absence that wasn’t noticed until someone spotted a telltale asterisk next to his name in a case heading. Now the matter has ended with Brown, a favourite of conservatives and libertarians, leaving the court 18 years before hitting the statutory retirement age.

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When it comes to the circumstances of the argument that led to Brown’s troubles, the sequence of events has discernibly left a bad taste in almost everyone’s mouth. All we know, probably all we’ll ever know, is that Brown met some strangers in a hotel bar, and was later roughed up by a belligerent mortgage adviser from Philadelphia. There’s no real indication that he is anything but a victim — albeit a victim who didn’t receive much sympathy from the Paradise Valley Police Department.

Perhaps Canadians sense an unpleasant irony here. Brown’s assailant was a United States military veteran, and the local cops chose not to book him for pummelling a mysterious foreigner. As a consequence of the fracas, that foreign country’s highest court has lost a judge who was perhaps its strictest civil libertarian when it comes to search-and-seizure matters and the rights of the accused.

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Brown is celebrated by Conservative partisans for his dissents in cases like the greenhouse gas reference, in which he denounced the assignment of carbon-taxation powers to the federal government, and the Trinity Western cases, in which he stood for the freedom of an evangelical university to create a law school subject to a “Community Covenant” forbidding extramarital sex.

The truth is that whenever a Supreme Court judgment co-authored by Brown seemed especially incisive, it tended to be instinctively attributed to him. This may be somewhat unjust to his frequent partner in dissents, Suzanne Côté, but Brown’s prose style had attracted admirers long before his audacious appointment to the Supreme Court.

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The joint Brown-Côté dissent in Frank v. Canada, the 2019 ruling against Canadian residency requirements for voters, seems obviously his work. It continues to be mystifying that the majority of the court didn’t drop dead from embarrassment when Brown was through gnawing at their fragile, ahistorical logic.

The same vigour can be felt in the majority ruling in 2021’s Toronto v. Ontario, co-signed by Brown and the chief justice, in which the court refused to use a contrived free-speech argument to overturn the province’s awkwardly timed redistricting of Toronto wards.

Liberals may not feel that anything important has been lost with Brown’s resignation. If they happen to glance south and see Democrats bewailing an over-mighty Supreme Court that happens to be in the hands of the wrong team, they might stop to regret the preposterous loss of a Canadian judge who took judicial deference to elected legislatures seriously. Heck, he may have been the last one.

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They might also scrutinize the Brownian jurisprudence that conservatives aren’t hailing. In 2017’s R. v. Paterson case, he wrote the decision that freed a man who admitted police into his home after they smelled marijuana, on a promise that he wouldn’t be charged. The cops then found other unlawful drugs and a restricted firearm, and decided that their promise had been, well, limited.

In 2021, the court heard a case where a man named Sokha Tim was arrested for being caught with gabapentin, an anticonvulsant medication that isn’t a controlled substance. A subsequent pat-down turned up illegal drugs and a gun; six good liberal judges favoured allowing the evidence from this unlawful search to stand. Only Brown insisted that Tim should be let go.

Without Brown, there will be one less obstacle, one fewer voice of reason, standing in the way of a court that has become increasingly activist in recent years. It also paves the way for a sixth Trudeau-appointed justice on the nine-member bench and the chances of the prime minister appointing a civil libertarian who’s skeptical of judicial overreach like Brown are slim to none. Canada will be worse off for it.

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