Justice Russell Brown

Alex Redinger (2L)

During this past summer, Justice Russell Brown was appointed to the Supreme Court of Canada. He is Stephen Harper’s last appointee, replacing Harper’s first appointee, retired justice Marshall Rothstein. Brown rapidly ascended the judicial hierarchy, serving on the Alberta Court of Queen’s Bench for just thirteen months, then on the Alberta Court of Appeal for eighteen months before being tapped for the Supreme Court. Prior to becoming a judge, Brown received his LLM (’03) and SJD (’06) degrees from U of T, making him the third judge on the current court to be an alumnus of our law school (joining Rosalie Abella and Michael Moldaver).

Professor Bruce Chapman co-supervised Russell Brown while he worked on his doctoral degree, and he thinks very favourably of the new Supreme Court justice. In response to inquiries about Brown’s academic work as a U of T Law student, Chapman stated, “Brown is an independent self-starter. It felt like we were equal interlocutors, working on problems together.”

Towards the end of Chapman’s supervisory period, “Brown was able to return [to western Canada] and independently write much of his thesis.” Since “Brown’s rights-based account of tort law resonated well with the school of thought at U of T,” it was “very much a symbiotic relationship.” Brown’s doctoral research, focusing on economic loss, has since been published, and according to Chapman, “[it] is excellent.” With regards to Brown’s judicial appointment, Chapman believes it is “good news for the Supreme Court of Canada because of [Brown’s] expertise in private law…he is legally principled, so he will likely be non-political.”

However, the justice’s political beliefs have been the source of some controversy, due to a series of blog posts he published while a law professor at the University of Alberta.

Brown’s blog posts generally indicate that our newest SCC justice has a dry wit, for instance remarking about an amendment of the Criminal Code which would include suicide bombings under the definition of terrorist activities: “[one] can only hope that the courts will follow Parliament’s lead and impose the severest possible sanctions on people who kill themselves.”

The posts include other rather unjudicial remarks, such as fretting that Bill Clinton would “[skulk] around,…[smell] up the [White House] toilet,…etc.” if Barack Obama had chosen Hillary Clinton to be his running mate. Brown also voiced his concern that “optics matter when it comes to appointing [Supreme Court] judges,” ironic given that his own appointment was opaque—Harper ceased public hearings for SCC appointees following Marc Nadon.

However the controversy centred on blog posts which indicate that Brown is deeply conservative. For instance he stated that he “[harboured] some hope for a [Harper majority government] hidden agenda” (this was probably also meant to be humourous, given the media craze about Harper’s “hidden agenda”). He additionally derided the prospect of Justin Trudeau as a candidate for Leader of the Liberal Party as “unspeakably awful.”

When discussing political issues, Brown was similar in some ways to his US Supreme Court counterpart Antonin Scalia, couching his conservatism in literalistic legal neutrality. For example, he expressed his opposition both to affirmative action in general and the Canadian Bar Association’s support for releasing Omar Khadr from Guantanamo Bay on the ground of neutrality. He acted on this belief in his capacity as an advisor to the Justice Centre for Constitutional Freedoms: a legal non-profit which has defended an anti-abortion club at the University of Calgary and acted as an intervenor throughout Trinity Western University’s legal battles to gain accreditation for its law school.

Whether Russell Brown’s ideology will influence his Supreme Court jurisprudence remains to be seen. Harper’s other appointees have shown little compunction ruling against the erstwhile prime minister’s interests—most dramatically when the entire court except Rothstein rejected Harper’s attempted appointment of Marc Nadon to the SCC, as well as on recent landmark cases such as Bedford (prostitution) and Carter (assisted suicide). If Harper was trying to transform the SCC into a more overtly politicized body he failed to do so, and it may be unfair to single out Brown by virtue of his corpus of blog posts.

In an interview for Lawyers Weekly, University of Alberta emeritus dean David Percy echoed Bruce Chapman’s belief that Brown will be non-political, stating, “I think… [he will be] a very well-educated, thoughtful, principled judge.” Regardless, Brown’s friends and foes alike should get comfortable with Russell Brown—the 50-year-old is the youngest Supreme Court justice, and as such can potentially remain on the Supreme Court of Canada for another twenty-five years before facing mandatory retirement.