Supreme Court Justice’s Old Blog Posts Spark Controversy
The University of Alberta’s law faculty now has two of its own on Canada’s highest court. Former U of A law professor Russell Brown was appointed to the Supreme Court of Canada on July 27, 2015, joining U of A law alum Chief Justice Beverly McLachlin. Justice Brown was first appointed to the Alberta Court of Queen’s Bench in 2013 and to the Alberta Court of Appeal in 2014.
Justice Brown’s appointment became controversial when old posts he had written on the U of A law faculty blog were circulated in the media. According to articles in the National Post and the Globe and Mail, these posts and comments had been deleted from the blog but were found in cached copies on the internet.
Brown’s musings on the blog included commentary on many political and legal topics. For instance, on October 21, 2008 he wrote on the federal Liberal leadership race, “As someone who hopes the Grits just fade away by the next election, I’m cheering for Justin Trudeau or Joe Volpe. Or have I missed a possible candidate who is as unspeakably awful?” Describing himself as a “conservative libertarian,” Brown also wrote on September 29, 2008, “I do hope [Conservative leader Stephen] Harper gets a majority and reforms the Canada Elections Act, starting with those odious third party spending limits.” He called the Canada Health Act “an inappropriate [federal] intrusion into sacrosanct provincial swimming pools,” suggested the Canadian Bar Association had called for the release of American prisoner Omar Khadr because it disliked the Conservative government, and thought the SCC should have left defining the rules of Quebec’s secession up to Parliament and the provincial legislatures.
An article in the Toronto Star by former Queen’s University law professor John Whyte, titled “Russell Brown doesn’t belong on the Supreme Court” argued that Prime Minister Harper broke convention by appointing a candidate from Alberta rather than Saskatchewan; that Brown’s supposedly narrow, originalist view of the Constitution is at odds with the dominant tide of Canadian jurisprudence, and that Brown’s criticism of political parties and policies undermines the SCC’s perceived neutrality.
U of A law professor and Vice-Dean Moin Yahya, himself a contributor to the faculty blog, responded to the Justice Brown controversy in several blog posts. Yahya noted that both Brown’s blog posts and his role as an advisor to the right-leaning Justice Centre for Constitutional Freedoms occurred well before Brown was first appointed to the bench. As for Brown’s political opinions, Yahya wrote that the effect of judges’ personal views on their job can be evaluated simply by reading their written decisions.
When asked whether Brown’s characterization of Justin Trudeau might affect a hypothetical constitutional challenge against the Liberal leader should he become Prime Minister, Yahya noted that Brown “would be the first to recuse himself” in any case which included conflict of interest due to bias or apprehension of bias.
Yahya further told Canons, “Almost all (one would hope all) of the existing justices of the Supreme Court or lower courts have had and have expressed views on political and other matters whether those views were liberal or conservative. The court itself has held that having such views in the past does not conflict out a sitting decision-maker, as long as they have an open-mind at the time they are adjudicating a specific case. Indeed, all those who have appeared in front of Justice Brown or who have dealt with him since his appointment can attest to his brilliant, open, and fair minded approach.” According to Yahya, the law faculty did not delete Brown’s blog posts; rather, they were removed by the author himself prior to his first judicial appointment.
Finally, Yahya stated that despite the recent elevation to the bench of both Brown and Yahya’s own predecessor, Wayne Renke, “the odds of professors becoming judges is actually quite low.” Rather than have law professors censor themselves in case they become judges one day and their political opinions in forums like the faculty blog return to haunt them, Yahya suggested that professors should “blog away without fear or favour.” Last year, Yahya taught a course on law and social media which included a project in which several of his students blogged on the Magna Carta, which Yahya referenced as an example of the role of blogging as a great educational tool.
According to U of A constitutional law professor Eric Adams, the criticism of Brown’s appointment does show the need for a more transparent judicial appointment process that clearly selects judges on the basis of merit. Currently, the Prime Minister appoints justices to the Supreme Court of Canada without any formal assistance from a parliamentary committee or non-partisan panel. “We should, I think, push for a judicial appointment system that effectively separates candidates into eligible pools on the basis of generally agreed upon criteria of excellence: diversity of experience, intelligence, capacity for hard work, collegiality, leadership, and empathy,” stated Adams. “From within that pool of eligible candidates, however, reasonable people will disagree about whom merits appointment. A judge’s particular political/judicial/legal philosophy may well be a relevant criteria for the executive in selecting its preferred candidate as an appropriate exercise of its power of appointment provided that the selected candidate is among the screened pool of meritorious candidates. For me, the important reforms to be made are in the use of bi-partisan committees in the selection of eligible candidates meriting appointment. From within that group, however, I think we can and should expect that different political parties will continue to have different preferences in the precise candidate selected. As has often been said, our system depends upon judges with open, not empty, minds.”
Adams also noted that while Brown is not the first judge to have expressed strong political views prior to appointment, the digital age has made such material more accessible to media and the public. “I think there was wide acceptance that providing opinions on the law and public policy is something that law professors are, in fact, paid to do,” said Adams. “We should, of course, always be conscious that the internet is not a private communication – we must be prepared to live with what we say and how we say it. That is a wise caution for all of us, law students included, in the internet age. Law blogs will continue, and so will the appointment of lawyers and law professors who write them.”