SCC’s Russell Brown quits amidst judicial council conduct investigation; opens up Western vacancy

By Cristin Schmitz

Last Updated: Wednesday, June 14, 2023 @ 3:04 PM

Law360 Canada (June 12, 2023, 6:03 PM EDT) -- Alberta’s Justice Russell Brown has quit the Supreme Court of Canada in the midst of a Canadian Judicial Council (CJC) investigation into a widely publicized misconduct allegation against him related to a late-night physical altercation involving an American complainant — opening up a Western vacancy on the nine-member top court, which has been shorthanded since last February.

The 57-year-old expert in negligence law and the top court’s third most senior puisne judge, elevated from the Alberta Court of Appeal by Conservative prime minister Stephen Harper Aug. 31, 2015, tendered his resignation June 12. According to a report in The Globe and Mail, Brown resigned after a CJC review panel was set to publicly announce June 8 its recommendation that the undisclosed formal complaint against Brown should be sent on to a public CJC Inquiry to determine whether misconduct was established and whether the judge’s removal should therefore be recommended by the council. The judge reportedly asked for the weekend to consider his options, before resigning today.

At press time the CJC had not confirmed this nor responded to written queries from Law360 Canada asking what the review panel has done, and whether and when the panel’s report and any recommendation it has made will be publicly disclosed.
“Since Justice Brown is now no longer a judge, the Council’s jurisdiction over the complaint against him has ended” under the Judges Act, the CJC said in a terse three-paragraph press release June 12. “As such, proceedings before the council that involve Justice Brown have come to an end.”

Notwithstanding the CJC review panel’s reported determination that the complaint’s allegation, if proven, was serious enough that it could lead to the judge’s removal and should be referred to a public CJC inquiry, Brown and his counsel, Brian Gover and Alexandra Heine of Toronto’s Stockwoods LLP, issued companion statements June 12 expressing their view that the complaint eventually would have been rejected by the council (see also below).

 Supreme Court of Canada Justice Russell Brown

Former Supreme Court of Canada Justice Russell Brown

“While my counsel and I are confident that the complaint would have ultimately been dismissed, the continuing delay is in nobody’s interests — the court’s, the public’s, my family’s or my own,” the former judge wrote, in part. “I have therefore 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.”

Continued the former judge, “In light of publication earlier this spring of certain aspects of the complainant’s version of the events, however, I believe I should clear the record. To that end, I have authorized my counsel to release a statement disclosing evidence that disproves the claims made against me. It shows that the person who punched me was described later by police as ‘argumentative, hostile [and] antagonistic,’ and who ‘began swearing profanities.’ The officer concluded that this was due to intoxication. The complainant apparently complained to both the police and the Canadian Judicial Council, in the words of one of his companions, to ‘get ahead of it,’ apparently to avoid the legal repercussions of his actions. Because the allegations made against me are false, I had hoped this issue would be dispensed with quickly and would not significantly impact the court’s business. Sadly, that has not been the case.”

With less than eight years at the Supreme Court, the former judge doesn’t qualify for an unreduced federal judicial annuity as he does not have the requisite 10 years’ service there.

Brown’s departure gives the Liberal government the summer to fill the Western vacancy before the Supreme Court starts its fall session in October. His successor will be the current prime minister’s sixth appointment to the high court. A statement from the top court following the judge’s resignation said, “[W]ith Justice Brown’s departure, Chief Justice Wagner invites the prime minister to exercise promptly the necessary care and consideration in appointing a new justice of the Supreme Court of Canada.”

(The judge’s resignation gives the feminist Trudeau government the option to make a historic appointment from among well-qualified bilingual female jurists in Manitoba, Saskatchewan, Alberta and British Columbia — this would make the Supreme Court of Canada among the first female-majority top courts in the western world.)

Brown’s abrupt resignation surprised many, as the judge had denied allegations made publicly to a newspaper by complainant Jonathan Crump, which arose out of the American ex-Marine’s scuffle with Justice Brown in the early morning hours of Jan. 29, 2023 at a Scottsdale, Arizona resort, where the judge had been speaking at an award dinner in honour of Louise Arbour.

Crump told police at the time that he punched the judge in the head more than once during the altercation. However, local police did not lay a criminal charge against Crump, after he told them he hit the judge to prevent Justice Brown from following Crump’s party of four to their hotel rooms, after the judge had spent part of the evening with them in the resort’s bar at the invitation of one of Crump’s female friends. According to the Paradise Valley, Arizona Police Department report, Crump complained to the police sent to investigate his 911 call that the judge was drunk and “creepy” and “hitting on” two of his friends, a woman and her mother. The daughter told the investigating officer the judge was flirting with both her and her mother, but mostly with her mother, and while doing so the daughter said the judge kissed her once or twice on the cheek and placed his hand on the small of her back area, and once on the side of her leg — which she told the officer was unwanted and made her feel uncomfortable. In response to police questioning, the police report states the woman answered that the judge did not attempt to touch her in any sexual way, nor was she injured or afraid of being injured.

The police officer wrote in his report that there was not enough evidence to develop probable cause to show an assault against her, but he said the case could be reviewed by detectives or the town prosecutor (no charges were ever laid). The investigating officer tried to interview Justice Brown right after talking to Crump and the rest of Crump’s party, but the judge did not respond to several knocks at his hotel door, nor did he contact police about Crump’s punches. Relying on interviews with Crump’s party, the investigating officer wrote in his report, “based on the totality of the circumstances, the use of force appeared reasonable and necessary, and no crime was determined. No arrests made.”

Crump’s account of the incident, as published in an exclusive interview with the Vancouver Sun, was disputed by Justice Brown in a brief public statement March 10, through his lawyer. The statement pointed to undisclosed evidence in the hands of the judicial council — see below — which the judge said corroborated his contention that Crump’s account was “demonstrably false.”

“I look forward to resuming my duties at the court,” after the CJC proceedings end, the judge said at that time.

The CJC was tightlipped during the entirety of the Brown complaint process for the past four-and-half months, citing the need for confidentiality and fairness to the judge. The CJC would not even confirm the complainant’s identity, nor provide a summary of Crump’s formal written allegations, notwithstanding that the disciplinary body’s longstanding practice has been to provide media with information about an ongoing judicial conduct matter if the complainant goes public with their allegations.

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, a situation reported first by Law360 Canada, on Feb. 17. Neither the top court nor the judicial council disclosed the conduct complaint against the judge until March 7 (two days before the Vancouver Sun broke its story March 9), sparking concern and speculation that Justice Brown or one of his family members might be unwell.

In a five-sentence press release, the disciplinary body for Canada’s 1,181 federally appointed judges disclosed March 30 that B.C. Supreme Court Chief Justice Christopher Hinkson, chair of the council’s judicial conduct committee, had decided to refer Crump’s undisclosed allegations to a CJC review panel to determine whether, if proven, they were serious enough to lead to the judge’s removal and should therefore be referred on to a formal Inquiry for investigation and determination.

Meanwhile, the judge’s absence from the Supreme Court significantly impacted litigants and the court, as he had participated in hearing a dozen appeals that were under reserve when he was effectively suspended. The court was also left sitting seven judges during its spring session.

 Chief Justice of Quebec Manon Savard

Chief Justice of Quebec Manon Savard

The review panel struck soon after March 30 was chaired by Chief Justice of Quebec Manon Savard and comprised two other council members, Manitoba Court of King’s Bench Associate Chief Justice Shane Perlmutter and New Brunswick Court of King’s Bench Chief Justice Tracey DeWare, as well as Saskatchewan King’s Bench Justice Grant Currie and Pierre Riopel.

Brown’s resignation avoids the possibility of lengthy taxpayer-paid CJC proceedings, including potential judicial reviews and appeals, as well as the many months that the Supreme Court of Canada would have had to operate with only eight judges.

Brown’s stepping down also cuts short an unprecedented and difficult situation for the Supreme Court of Canada.  

Notably, under the present discipline process in the Judges Act, had the Crump complaint proceeded from the review panel to a formal inquiry and, if the inquiry’s actions were then judicially reviewed at the behest of Brown in the Federal Court, followed by appeals to the Federal Court of Appeal and, with leave, to the Supreme Court, the Supreme Court’s members would have been faced with deciding a leave application and/or an appeal from a litigant with whom they had both worked and socialized, in some cases for many years.

This in turn could have raised real or apparent bias/conflict of interest/recusal issues for some, if not all, of the top court’s members. Section 30 of the Supreme Court Act provides for the chief justice of the court to invite a Federal Court, Tax Court or Federal Court of Appeal judge to sit temporarily ad hoc on the top court, but it’s not obvious whether and how this might have come into play in the novel circumstances of a Supreme Court judge bringing a legal matter before colleagues at the top court.

The Brown matter is unprecedented in the history of both the federal judicial council and the highest court. Complaints against Supreme Court of Canada judges over the past 50 years have always been screened out as unfounded at the initial stage, or they have been dealt with otherwise at an early stage, with no complaint being referred by the judicial conduct chair to a review panel or onward for determination by a formal Inquiry.

Since its inception in 1971, the CJC has only recommended removal of a judge to the federal justice minister five times, with all the cases involving puisne judges of the superior trial courts. Four of those judges resigned before the justice minister and Parliament could move to fire them, while the CJC’s fifth recommendation last December, for removal of Quebec Superior Court Justice Gérard Dugré, remains in the hands of federal Justice Minister David Lametti.

“Justice Dugré is seeking judicial review before the Federal Court,” Lametti’s press secretary Diana Ebadi told Law360 Canada. “The minister will await the outcome of any legal challenge to the recommendation before deciding whether to accept it,” she wrote by email. “As this matter is currently before the courts, it would be inappropriate to comment.”

The CJC stated that Justice Dugré’s career-long pattern of delayed judgments, along with his at times intemperate comments and disrespectful in-court behaviour towards counsel and litigants, “significantly damages the administration of justice” and “has undermined public confidence to the point where he has become unable to continue to perform his duties and should therefore be removed.”

The June 12 statement from Brown’s co-counsel states, in part, that “Justice Russell Brown has made the extremely difficult decision to retire from the Supreme Court of Canada to allow a replacement judge to be named and so that the work of the Court will not be impacted during its busy fall term, and for possibly another year. He has made that difficult decision in an effort to serve the public interest and the best interests of the Court on which it was his privilege to serve.”

“This decision was the regrettable result of a spurious complaint that was lodged against Justice Brown by a 31-year-old ex-Marine who, while intoxicated and belligerent, punched Justice Brown without provocation and later weaponized Canada’s judicial discipline process,” Brown’s co-counsel allege. 

Evidence, including from the Brown team’ s investigation into the complaint, that was put before the CJC review panel  “demonstrated that the complainant’s allegations were fraught with glaring contradictions, inaccuracies, and embellishments,” they contend. 

“The substantial evidence refuting the allegations” against the judge, they said, included:
  • Surveillance video footage depicting the entirety of Justice Brown’s interactions with the complainant’s companions;
  • The evidence of the Hotel’s bartender, who was working a few feet away from the table where Justice Brown and the complainant’s group were sitting;
  • The evidence of the hotel’s security officer who attended at the scene of the incident and interacted with Justice Brown at length;
  • The recording of the complainant’s 911 call;
  • The legal opinion of the former Chief Justice of the Supreme Court of Arizona, who, after examining the evidence in this case, concluded that under Arizona law, there was no basis for the complainant’s allegations of harassment and that there was no possible legal justification for his attack on Justice Brown;
  • The body-worn camera footage, which showed where the incident took place; and
  • The investigative reports “prepared by a very experienced and capable investigator, who is a former police detective.”

“We are confident that, in light of all this evidence, Justice Brown would have been completely vindicated at the conclusion of the Canadian Judicial Council’s process”, Brown's counsel wrote. “However, the effect of the process on the Court and the considerable strain on Justice Brown and his family have led him to this decision to retire.”

Brian Gover

Brian Gover, Stockwoods LLP

According to Brown’s counsel, “today marks the end of an unmistakably regrettable chapter in Canadian legal history. It is extremely disappointing that, for the first time in the CJC’s history, the complainant’s unchallenged accusations were released to the public. It is beyond unfortunate that an unmeritorious complaint — brought for the purpose of weaponizing the CJC’s process — went as far as it did. Justice Brown’s meteoric rise to the Supreme Court of Canada, his unblemished reputation as a judge, and his significant contributions to Canada’s jurisprudence in the areas of commercial, constitutional, tort, Aboriginal and criminal law, must be celebrated.”

Photo of Chief Justice of Quebec Manon Savard, courtesy Quebec Court of Appeal

Photo of Supreme Court of Canada Justice Russell Brown,  SCC Collection

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