Conduct complaint against SCC Justice Brown referred to judicial council's review panel

By Cristin Schmitz

Last Updated: Thursday, March 30, 2023 @ 6:40 PM

Law360 Canada (March 30, 2023, 5:16 PM EDT) -- The Canadian Judicial Council (CJC) is referring a conduct complaint against Supreme Court of Canada Justice Russell Brown last January — of a nature the council continues to refuse to disclose — to a five-person CJC “review panel.”

The review panel will determine whether the conduct alleged in the complaint — which the judge has denied — is serious enough to potentially lead to the 57-year-old judge’s removal from the bench and therefore should be referred to a public CJC Inquiry Committee to ascertain whether or not the judge engaged in misconduct and, if so, whether the misconduct was serious enough that the CJC should recommend the judge’s removal to the federal justice minister.

In its five-sentence press release March 30, the disciplinary body for Canada’s 1,180 federally appointed judges states that B.C. Supreme Court Chief Justice Christopher Hinkson, chair of the council’s Judicial Conduct Committee, “has decided to refer the matter to a Judicial Conduct Review Panel. Under the Council’s by-laws a Review Panel may be established to determine whether an Inquiry Committee is to be constituted, if it determines that a matter might be serious enough to warrant the removal of the judge.”

“The council will not comment further on this matter pending the decision of the Review Panel,” the CJC stated, noting the review panel will comprise three members of the council of chief justices, as well as a puisne judge and a person who is neither a judge nor member of the bar.

Justice Brown was put on an indefinite paid leave of absence from the top court Feb. 1 by Supreme Court of Canada Chief Justice Richard Wagner, which was reported first by Law360 Canada, on Feb. 17. A Supreme Court judge has never in memory been placed on a leave of absence pending the outcome of a complaint against him or her to the CJC, despite several Supreme Court of Canada judges having faced complaints in the past.

The top court declined to answer queries from Law360 Canada about the reason for the leave of absence or when the judge might return, citing “confidentiality.” The court now refers questions about the complaint to the CJC. 

The CJC first disclosed March 7 that it was investigating a complaint against the judge, but gave no details about who complained, the nature of the complaint or the allegations against the judge who was elevated from the Alberta Court of Appeal by Prime Minister Stephen Harper in 2015.

An exclusive Vancouver Sun report March 9 revealed that the leave of absence followed a Jan. 29, 2023, complaint to the CJC in relation to a physical altercation involving the judge and another man, reportedly the complainant, at an Arizona resort that day.

On March 10, Justice Brown issued a statement, referring to undisclosed evidence that he said corroborates that the undisclosed allegations about his conduct related to the altercation at the resort — during which the judge was physically assaulted — are “demonstrably false.”

In a brief written statement to media March 30 (sent by his counsel Brian Gover of Toronto’s Stockwoods LLP), Justice Brown reiterated his March 10 written statement, including that “this incident has caused me embarrassment and created complications for the Court. I am hopeful that the Council will resolve this matter expeditiously.”

“I acknowledge the Canadian Judicial Council’s decision that the process will include a review of the complaint by a five-member panel,” Justice Brown added March 30. “My approach throughout this process has been to respond as expeditiously as possible. I will do so again in relation to this latest step and look forward to resuming my duties at the court. I anticipate making no further comment about the proceeding and will not be granting any interviews.”

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