Top judge says judicial council working on making ‘opaque’ judicial discipline ‘more transparent’

By Cristin Schmitz

Last Updated: Thursday, June 15, 2023 @ 1:38 PM

Law360 Canada (June 14, 2023, 2:48 PM EDT) -- Amid public concern that the Canadian Judicial Council (CJC) is unduly secretive about the handling and outcome of its investigation of a misconduct complaint against recently resigned Supreme Court of Canada Justice Russell Brown, Chief Justice of Canada Richard Wagner says he has asked a CJC committee of chief justices to devise a new and less restrictive disclosure policy to guide the federal judicial disciplinary body on how and when it should inform the public about its judicial complaint investigations and outcomes.

“I share the concerns of the public for transparency,” the council’s chair told Hill reporters June 13 during his annual media availability in Ottawa, where he also revealed that Prime Minister Justin Trudeau recently responded to the chief justice’s letter apprising Trudeau of the fact that the high number of vacancies on the country’s superior trial and appellate courts, contributed to by the Liberal government’s chronic delay in appointing judges, risks pushing the justice system into crisis.

“He said to me that he would provide his best effort to appoint the best candidates, of course, and to try to correct the situation,” the chief justice said. “It was a short conversation, but I think that if the prime minister took the time to call me, it's because he took the problem seriously and ... so now we'll wait and we'll see. So stay tuned.”

Chief Justice Richard Wagner

Supreme Court of Canada Chief Justice Richard Wagner

Most of the questions to the chief justice at the press conference related to the Brown matter, and especially the CJC’s lack of transparency. It continues to refuse to provide the public with even bare-bones information about its four-month investigation into — and conclusions about — the undisclosed formal misconduct complaint against Brown, which was filed with the council Jan. 29 by a complainant whose identity the CJC refuses to disclose or confirm — notwithstanding that Jonathan Crump revealed the thrust of his allegations to media.

Brown stepped down from the bench June 12, ending the discipline proceedings. However, he asserted in a statement that the judicial council had “evidence that disproves the claims made against me” and that he and his counsel were confident that the complaint would ultimately have been dismissed and that he would have been “completely vindicated.” 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,” his counsel wrote.

Notably, as reported by The Globe and Mail, the judge resigned a few days after the CJC gave Brown’s counsel the still-undisclosed official report of a CJC five-member review panel which determined, after investigating and receiving submissions from the judge, that the complaint should be referred to a formal inquiry (likely to be held in public) as its allegations were serious enough, if proven, that they could lead to the judge’s removal.

Asked by Law360 Canada how the public can have confidence in the judiciary’s self-regulation of its members’ conduct, given that the federal council of 44 chief- and associate-chief justices has not provided information about the particulars of an unprecedented complaint against a Supreme Court judge that sparked his departure from the bench, nor disclosed the results of its publicly funded months-long investigation into the allegations, Chief Justice Wagner replied “I absolutely share your concerns.”

Asked whether he is concerned that the council of chief justices could be seen as covering up misconduct allegations and lose credibility with the public, i.e. because of the CJC’s refusal to disclose the review panel’s report and the council’s non-disclosure that the review panel considered the complaint against Justice Brown serious enough to require a formal inquiry to investigate, Chief Justice Wagner answered “I don't think so.”

He said the complaint’s allegations could have “brought ... the setup of a special inquiry” — which in turn would have brought the complaint and its allegations to the public’s attention. But the proceedings ended with the judge’s resignation and the CJC's loss of jurisdiction.

Asked whether the judicial council committed to Justice Brown that, if he resigned, the CJC will not publicly disclose the review panel’s report and its referral of the complaint to a formal Inquiry, the CJC’s chair answered, “I don’t know.” Chief Justice Wagner said he didn’t learn of Brown’s resignation until the judicial council informed him.

Emphasizing that, as a judge of the Supreme Court, he does not get involved in judicial conduct matters at the CJC, Chief Justice Wagner also pointed out that while transparency in how the council handles judicial discipline is desirable, the judicial council must also take into account countervailing considerations when communicating with the public about a complaint, including protecting the judge’s privacy and reputation, as well as the reality that many complaints are unmeritorious on their face.  

The judicial council has to navigate its public communications about conduct complaints “keeping in mind those principles,” he said. “I think there’s a way to do it. I think we could be better, and I hope that we will be better.”

Addressing the issue of the CJC’s transparency in general, the chief justice remarked that “since I became chief justice in 2018, I realized that there was something to be corrected at the [CJC’s] judicial conduct committee.”

He said that he asked the committee last April “to look at their own regulations to see if it was not possible to make [the process] more transparent.”

“There’s something opaque right now, and I’m not comfortable with that,” the chief justice admitted. “So I think that there’s work to be done.”

To that end, Chief Justice Wagner said he hopes Parliament will adopt, “as soon as possible,” long-awaited reforms (Bill C-9) sought by the CJC, which aim to streamline and speed up the delay-plagued federal judicial discipline process.

“That's the first step to make sure that the process is more transparent,” the chief justice said. “But also there’s some work I think we can do better at the CJC. There’s some work to be done to look at it, and try to find ways to make it more transparent. I have reasons to believe that it will be done.”

 Former Supreme Court of Canada judge Russell Brown

Former Supreme Court of Canada judge Russell Brown

Chief Justice Wagner stated that the allegations Brown had been facing “had nothing to do with his work as a judge.”

When asked how the unresolved complaint, and the allegations left hanging, reflect on his court, the chief justice replied, “It’s unfortunate of course. But I believe, inasmuch as it ... in this specific case concerns one judge, and one behaviour outside of the courtroom, I don’t think that people will have a bad opinion of the Supreme Court following this incident.”

The chief justice suggested that Canadians “should be comforted” that the federal judicial discipline process is there to address judicial misconduct and that the CJC recently updated its written “ethical principles” to guide the conduct of the country’s 1,181 federally appointed judges.  

“I think that people should be happy to learn that we take those questions seriously, the ethics of judges, and that we have a process and we have, ideally, a more open process in the future,” he explained.

He noted the Supreme Court “now looks forward for the prime minister to exercise promptly the necessary care and consideration” to appoint a new judge before the start of the court’s fall session in October.

Asked what the prime minister should look for in filling the Western vacancy, Chief Justice Wagner responded, “That’s up to him.”

The review panel’s referral of the Brown complaint to a formal CJC inquiry only came to the public’s attention at all because that information was leaked to The Globe and Mail. For its part, the judicial council simply announced, in a terse three-paragraph press release about “the Brown matter,” that the judge had “retired” effective immediately on June 12 and that “since Justice Brown is now no longer a judge, the council’s jurisdiction over the complaint against him has ended under the [Judges] Act.” As such, proceedings before the Council that involve Justice Brown have come to an end.  

Crump’s identity and the thrust of his allegations also only emerged publicly, due to investigative reporting by the Vancouver Sun.

When the judge resigned, he said he and his counsel were “confident that the complaint would have ultimately been dismissed” as Crump’s allegations that the judge was intoxicated and harassed two of Crump’s female companions at a Scottsdale, Arizona resort last January are  “false,” “spurious” and improperly motivated to forestall repercussions against Crump. As shown in police body cam video, Crump told police he punched Brown to prevent the judge from following his companions to their rooms in the same hotel where the judge was staying.  

Photo of Supreme Court of Canada Chief Justice Richard Wagner by Cristin Schmitz.

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

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