The fact is unprecedented: Russell Brown, one of the nine justices of Canada’s Supreme Court, has been suspended from office for five weeks.
Posted at 6:00 am
But it was not until Tuesday (March 7) that the Supreme Court “as an open and transparent institution” issued a statement to inform the Canadian public.
The 57-year-old Alberta judge, who was appointed by Stephen Harper in 2015, has not served since February 1. But we didn’t officially hear about it until March 7th.
We suspect the matter was published out of necessity: it is difficult to hide the absence of a judge in a court of nine judges. Especially when it is the most powerful in the country and is under constant surveillance. As early as February 17, we had noticed an asterisk next to Judge Brown’s name in a judgment and the following note: “Judge Brown was not involved in the final determination of the judgment. “Ah good? Still, he had heard the reason. Was he ill? Cases in Canada’s highest court are prepared well in advance; he would have had to be seriously ill not to be able to sign the verdict.
No: He was suspended. Pardon: “Release” by Chief Justice Richard Wagner pending the result of the ethics investigation.
We don’t know anymore.
One can imagine the earthquake if such a situation had arisen in the United States Supreme Court. The absence of a judge is in itself an event that could have devastating political consequences there, especially these days.
It would be unthinkable in Washington for such a “furlough” to be ignored for five weeks (because, in theory, a chief justice does not have the power to suspend a colleague who enjoys the same total independence).
But in Canada it does.
Therefore, on Tuesday, at the same time as the Supreme Court announced this forced leave, the Judicial Council announced the opening of an investigation. A complaint (we don’t know by whom) was filed on January 29 (we don’t know why). The case was assigned to Chief Justice of the British Columbia Supreme Court Christopher Hinkson. He is authorized to immediately reject unusual or obviously unfounded complaints. This is evidently not the case: on January 31, he asked Judge Brown for an explanation while briefing the Chief Justice on the situation. Chief Justice Wagner called Justice Brown and informed him of his immediate dismissal. The council received Judge Brown’s response on February 20.
It appears Judge Brown’s statements did not allow the case to be closed as two weeks later he is still on paid “vacation” and the investigation is ongoing.
Two weeks in which neither the Supreme Court nor the Council saw fit to release basic information to the public.
Questions began to be asked left and right: Where is Judge Brown? What’s up ? Etc. Had to say something…
What we have to say when we have no choice is no transparency. It’s a forced confession.
According to the Council’s latest report, from April 1, 2020 to March 31, 2021, 336 complaint files were opened, 303 files were closed and 285 cases were closed.
The vast majority of complaints are therefore quickly closed within a few weeks without an in-depth investigation.
PHOTO SEAN KILPATRICK, THE CANADIAN PRESS ARCHIVE
The Supreme Court of Canada
The most serious lead to a formal investigation. If the facts so warrant, a public hearing presided over by chief justices from several courts and a member of the public will hear the complaint against the judge. If violations are deemed serious enough, impeachment proceedings may be recommended – requiring a joint vote by the chambers of Parliament. No judge went to that vote: judges convicted by their peers eventually resign. Since the Council’s inception in 1971, only six federally appointed judges have been the subject of such a recommendation. The youngest so far is Quebec Supreme Court Justice Gérard Dugré, who was ruled unfit to hold office in December because of his erratic behavior in court. He challenged those conclusions in federal court—a classic.
All this to say that: 1) such an investigation is not launched lightly; 2) They don’t give a judge a leave of absence lightly, let alone a Supreme Court justice.
The matter must be very serious to set such a precedent.
Obviously, it’s unclear if this will lead to an ethical “trial” that could result in a dismissal, a dismissal, or a reprimand. Perhaps in the end we will accept the judge’s explanations and he can resume his work.
In any case, we need to be told what was going on.
Because the event is now too unusual for us not to assume a serious allegation.
Which brings us back to the issue of the delay in partially releasing the case. We understand that an investigation requires a certain level of confidentiality. But we’re talking about a Supreme Court judge who was removed for ethical reasons.
The council states that Judge Hinkson is the one who will decide whether or not to disclose the elements of the investigation. It must “reconcile different principles”: transparency, public interest and data protection. One could add: the reputation of the court and that of the judge.
I conclude that in this difficult balancing exercise, not to say balancing act, “transparency” often bears the brunt. It’s so much more natural to retain even basic information.
Anyway, five weeks later, this fact, which should have been public from the start, is finally proclaimed by force and nobody has gained anything.