Judicial balancing act

Catholic lawyers are lamenting the sudden and surprising retirement of Justice Russell Brown, widely regarded as the preeminent conservative justice on the Supreme Court of Canada.

To many, Brown’s departure brings a loss of balance at the highest level of the judiciary in Canada, and fears among some that his replacement will only tip the scales toward an even more liberal court.

“As others have remarked, his departure will be a loss of a balancing influence at our highest court,” said Phil Horgan, president (currently on leave) and general counsel for the Catholic Civil Rights League of Canada. “This was especially true in cases involving freedom of conscience and religion.”

Speculation is that Brown’s replacement will likely hail from Western Canada, but he or she might not be a justice with Brown’s interpretation of freedom of conscience and religion. Officially, Governor General Mary Simon will make the appointment but it will be heavily influenced by Prime Minister Justin Trudeau, which would be the sixth Trudeau appointment on the nine-member bench. Chances of Brown’s replacement following in his path are considered slim.

“We can only hope that they would appoint someone who would bring some balance on the court, but unfortunately, I am not sure that will happen,” said David Zuber, president of the Thomas More Lawyers’ Guild of Toronto and a managing partner of Zuber & Company LLP. “The court can become very lopsided.”

Brown, a product of Vancouver, was appointed to the Supreme Court of Canada on Aug. 31, 2015. He resigned on June 12, a development that halted a probe from the Canadian Judicial Council into an alleged alcohol-fueled harassment incident in Arizona at the end of January.

Accounts of what exactly occurred at the Scottsdale-area resort are conflicting, but it has been substantiated that Brown and another man at the resort, identified as U.S. Marine veteran Jon Crump, were involved in a physical altercation. Crump has alleged he punched Brown after the justice kept harassing him and his companions, while Brown said Crump inexplicably punched him in the head.

Brown’s resignation was accompanied by a press statement that said “while my counsel and I are confident that the complaint would have been ultimately dismissed, the continuing delay is in nobody’s interests — the court’s, the public’s, my family’s or my own.” He “decided that the common good is best served by my retirement, so that a replacement judge can join the court in time for its busy fall term.”

The former justice revealed he has not been involved in court work for four months. He suggested the probe could have lasted into 2024 given the pace of the investigation up until his resignation.

Horgan noted a couple cases where Brown ruled in favour of Christian entities in their legal battles. He cited Law Society of B.C. v. Trinity Western University (2018) as an example. This case was a judicial review of the Law Society of British Columbia’s decision not to accredit the evangelical Christian institution as a law school. The reason for the rejection of Trinity Western was that attending students would have to conform to a religiously based code of conduct, the Community Covenant Agreement, prohibiting “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

Seven of the nine justices affirmed the Law Society’s edict, writing “it is clear that the decision not to approve TWU’s proposed law school significantly advanced the LSBC’s statutory objectives by maintaining equal access to and diversity in the legal profession and by preventing the risk of significant harm to LGBTQ people.”

But Brown and fellow justice Suzanne Côté co-wrote the dissent in support of the Christian university. A certain passage stands out to Horgan:

“In conditioning access to the public square as it has, the regulator has — on this Court’s own jurisprudence — profoundly interfered with the constitutionally guaranteed freedom of a community of co-religionists to insist upon certain moral commitments from those who wish to join the private space within which it pursues its religiously based practices.”

In other words, Brown and Côté articulated a Christian law school established by a Christian university has the right to expect applicants to actively believe in and practice the tenets of Christianity.

Horgan added that Brown “continued to maintain a robust freedom in our constitutional matrix for religious institutions” in other cases, citing Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga (2021) as an example, a case that saw Horgan function as counsel for the archbishop and cathedral parish.

Five Toronto churchgoers sued the cathedral for expelling them from the congregation after a dispute with the archbishop and senior clerical leaders that rejected their recommendations surrounding a potential heretical group within the congregation. The Federal Court of Appeal ruled the Church violated its contractual bond with each of the churchgoers only to have Brown and his Supreme Court colleagues overturn the Court of Appeal unanimously, avowing that while many associations have rules or a constitution as measures to help them pursue their shared objectives, this does not amount to a contractual relationship with individuals who join.

Zuber said the news of Brown vacating his Supreme Court seat was difficult.

“When I heard the news, I was actually very disappointed. The more I read about it, I kind of think that I agree with the Chief Justice of Canada (Richard Wagner) that if he resigned because the process was going to be too long and hang over his head, they need to overhaul the process because it is going to be a loss to the court.”

Wagner did tell media on June 13 that he has been advocating since 2018 for Parliament to make changes to the judicial disciplinary process.

“In February 2018… I spoke publicly about the need to overhaul the complaint system for judge’s conduct,” said Wagner. “I qualified the existing procedures as outdated, slow and opaque. I said that though Canadians expect transparency and responsibility, we continue to apply judicial administrative models from the 1970s.”

Horgan also takes issue with the process that led Brown to early retirement.

“It appears that these untested allegations have now raised a further controversy over the steps taken to exclude Justice Brown from an active role on the Supreme Court,” said Horgan.

“It is unfortunate that Justice Brown’s early retirement will not result in a decisive treatment of the allegations that were brought against him, for which he maintains a vigourous denial.”