Russell Brown doesn’t belong on the Supreme Court
Prime Minister Stephen Harper’s appointment of Justice Russell Brown to Canada’s highest court was ill-timed and ill-judged.
Just days before calling the federal election in early August, Prime Minister Stephen Harper named Russell Brown, an Alberta judge, to the Supreme Court of Canada. This appointment pleased some judicial and political conservatives, but it was not a sterling choice.
As for his legal values, Russell Brown, through extensive blogging, has railed against Supreme Court decisions that have given substance to constitutional principles. He opposed protections that were granted under the Charter’s “principles of fundamental justice,” such as the recognition of a right to physician assistance in dying. He derided the Supreme Court for deciding that the extradition of persons facing the possibility of execution violates the Charter’s prohibition against cruel punishment. He said the Supreme Court was wrong to answer constitutional questions relating to a province’s attempt to secede from Canada even though both national unity issues and the protection of interests during a process of dissolution are established as valued court functions.
He has opposed constitutional interpretations that would reflect the dynamism of social and political contexts or that promote underlying constitutional purposes; narrow interpretations of constitutional texts shut out consideration of contemporary values and conditions and rob a living document of vitality and relevance.
Politically, he condemned the Canadian Bar Association for supporting Omar Khadr’s release from Guantanamo Bay and claimed that both the Bar Association and Chief Justice Beverley McLachlin have been motivated by hostility to the Conservative government more than fidelity to law. Until the very day of being named to the Supreme Court, he served as an adviser to a conservative think tank that promotes constitutional protection for property rights and claims that affirmative action in aid of disadvantaged minorities violates equality, both contrary to the Charter’s content. He has mocked the Anglican Church for political correctness — a barely opaque attack on church reforms that promote equality for women and gays.
He is a literalist, a libertarian and a conservative. These match the legal and political values of the prime minister whose judicial nominating power is being used to establish judicial conservatism. Both Justice Brown’s views and the prime minister’s nominations can be seen as a normal and legitimate course for democratic will. In my view, this form of constitutionalism adopts unsound legal theory, lacks liberality of interpretation and defeats the idea of a common good. But this assessment does not demonstrate the impropriety of Brown’s appointment.
There are, however, structural and procedural bases for questioning this appointment. Justice Brown is the fourth Alberta jurist on the Court since there has last been a judge from Saskatchewan. Even if the next appointee to the Court were from Saskatchewan, the period of non-representation from that province would be two-thirds of a century. By long practice, membership on the Supreme Court has been based on a pattern of rotation in order to promote the national legitimacy of the Court; the prime minister has overridden this vital practice in order to promote his political ideology.
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