Russell S. Brown (born September 15, 1965)
is a
puisne justice of the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
. He was nominated by
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
Stephen Harper
Stephen Joseph Harper (born April 30, 1959) is a Canadian politician who served as the 22nd prime minister of Canada from 2006 to 2015. Harper is the first and only prime minister to come from the modern-day Conservative Party of Canada, ...
to replace outgoing justice
Marshall Rothstein and has been serving in the role since August 31, 2015. Prior to his appointment to the Supreme Court, he was a justice at the
Alberta Court of Appeal, and before that a law professor at the
University of Alberta
The University of Alberta, also known as U of A or UAlberta, is a public research university located in Edmonton, Alberta, Canada. It was founded in 1908 by Alexander Cameron Rutherford,"A Gentleman of Strathcona – Alexander Cameron Rutherfor ...
.
Early life and education
Brown has a Bachelor of Arts degree from the
University of British Columbia
The University of British Columbia (UBC) is a public university, public research university with campuses near Vancouver and in Kelowna, British Columbia. Established in 1908, it is British Columbia's oldest university. The university ranks a ...
in 1987 and a Bachelor of Laws degree from the
University of Victoria
The University of Victoria (UVic or Victoria) is a public research university located in the municipalities of Oak Bay and Saanich, British Columbia, Canada. The university traces its roots to Victoria College, the first post-secondary instit ...
in 1994. He also has a Master of Laws degree in 2003 and a Doctor of Juridical Science degree both from the
University of Toronto
The University of Toronto (UToronto or U of T) is a public research university in Toronto, Ontario, Canada, located on the grounds that surround Queen's Park. It was founded by royal charter in 1827 as King's College, the first institution ...
in 2006.
Career
Brown was admitted to the Bar of British Columbia in 1995 and to the Bar of Alberta in 2008. Before being appointed a judge he was associate counsel to Miller Thomson LLP and an Associate Professor and Associate Dean at the
Faculty of Law
A faculty is a division within a university or college comprising one subject area or a group of related subject areas, possibly also delimited by level (e.g. undergraduate). In American usage such divisions are generally referred to as colleges ...
, University of Alberta.
His main areas of practice were commercial law, medical negligence, public authority liability, insurance law and trusts and estates.
In 2013, he was appointed to the Court of Queen's Bench of Alberta. A year later in March 2014, he was appointed to the Court of Appeal of Alberta.
He has expressed his views on a number of topics in a University of Alberta law faculty blog, prior to his appointment to the bench. He called the
Canada Health Act “an inappropriate
ederalintrusion into sacrosanct provincial swimming pools,” referred to third party election spending limits as "odious" and "restriction on private expenditure during elections" as "objectionable", described
human rights commission
A human rights commission, also known as a human relations commission, is a body set up to investigate, promote or protect human rights.
The term may refer to international, national or subnational bodies set up for this purpose, such as nationa ...
s as "puritanical functionaries", and described himself as a "conservative libertarian".
Appointment to the Supreme Court
Brown was nominated by Prime Minister Stephen Harper to replace retiring justice Marshall Rothstein on the Supreme Court of Canada. Brown was his eighth and final appointment to the Court, as the
Conservatives would lose the
2015 election. At the time of the nomination it was expected that Harper would name someone from
Saskatchewan
Saskatchewan ( ; ) is a Provinces and territories of Canada, province in Western Canada, western Canada, bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, to the northeast by Nunavut, and on t ...
, but Harper opted for Brown instead, who was from Alberta. This meant that there would be two appointees from Alberta (
Chief Justice Beverley McLachlin was also from Alberta), however this still satisfied the constitutional convention requiring two justices from
Western Canada
Western Canada, also referred to as the Western provinces, Canadian West or the Western provinces of Canada, and commonly known within Canada as the West, is a Canadian region that includes the four western provinces just north of the Canada ...
on the Court.
His appointment proved controversial due to the surfacing of his blog posts. The
Toronto Star
The ''Toronto Star'' is a Canadian English-language broadsheet daily newspaper. The newspaper is the country's largest daily newspaper by circulation. It is owned by Toronto Star Newspapers Limited, a subsidiary of Torstar Corporation and part ...
published an article from John Whyte, a professor emeritus at the
Queen’s University Faculty of Law, criticizing the appointment. Whyte called Brown unfit for the Court because of his political writings and activism, and also attacked Harper for even naming a justice so close to an election campaign. Brown would nonetheless be sworn in on August 31, 2015, and without a Parliamentary hearing as Harper had discontinued the voluntary practice with the appointment of
Suzanne Côté a year prior.
The appointment of Brown has been recognized in retrospect as one of three major appointments - alongside the appointment of Côté a year earlier and the subsequent appointment of
Malcolm Rowe
Malcolm H. Rowe (born 1953) is a Puisne Justice of the Supreme Court of Canada. Rowe is the first judge from Newfoundland and Labrador to sit on the Supreme Court.
Early life and education
Rowe was born in 1953 in St. John’s, Newfoundland an ...
by
Justin Trudeau
Justin Pierre James Trudeau ( , ; born December 25, 1971) is a Canadian politician who is the 23rd and current prime minister of Canada. He has served as the prime minister of Canada since 2015 and as the leader of the Liberal Party since 2 ...
- which shifted the balance of the Court and ended an era of broad liberal consensus that dominated the McLachlin Court.
At the Supreme Court
Within his first year, Brown co-wrote the majority opinion for the blockbuster
speedy trial
In criminal law, the right to a speedy trial is a human right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely. Otherwise, the power to impose such delays would eff ...
case ''
R v Jordan
''R v Jordan'' (1956) 40 Cr App R 152 was an English criminal law case that has been distinguished by two later key cases of equal precedent rank for its ruling that some situations of medical negligence following a wounding are those of break ...
.'' A sharply divided Court established ceilings on how long the state has to bring an individual to trial. The decision attacked a "culture of complacency" that had developed towards the speedy trial rights of the accused and radically altered the application of
section 11(b) of the ''Charter'', leading to numerous cases being thrown out on account of unreasonable delay.
After ''Jordan'', Brown continued to show an inclination towards the rights of accused in cases that pitted law enforcement objectives against the fair trial rights of defendants. In ''
R v Le
R, or r, is the eighteenth letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ar'' (pronounced ), plural ''ars'', or in Irelan ...
'' he co-wrote a majority opinion throwing out the conviction of a young Asian-Canadian man, holding that he had been detained during an interaction with the police and should've consequently been advised of his right to counsel. The ruling emphasized how personal characteristics like race and youth can impact how individuals perceive police interactions, noting that certain forms of questioning that might seem voluntary to individuals from some communities might be perceived as compulsory and a detention to others.
His expansive interpretation of the legal rights in the ''Charter'' was also apparent in dissents he wrote, co-wrote, and joined. He dissented in ''
R v JJ
R, or r, is the eighteenth letter of the Latin alphabet, used in the modern English alphabet, the alphabets of other western European languages and others worldwide. Its name in English is ''ar'' (pronounced ), plural ''ars'', or in Irelan ...
,'' in when the Court upheld a new
rape-shield law which required pre-screening of private records before they could be admitted in trial. His dissent attacked the law as an unprecedented affront to the right to make full answer and defence, and as a form of defence disclosure that could taint the testimony of witnesses by allowing them to see the defences' evidence ahead of time. In another unreasonable delay case ''R v KJM'' , this time in dissent, he co-wrote an opinion calling for the pretrial delay ceilings to be lower for
juvenile offenders because of the uniquely prejudicial effect delay has on them. In ''
R v Stairs
''R v Stairs'', 2022 SCC 11 is a constitutional rights decision of the Supreme Court of Canada. The Court established new standards for searches of a person's home after they have been arrested. At issue in the case was whether the traditional com ...
'', he joined a dissent by justice
Andromache Karakatsanis
Andromache Karakatsanis (born October 3, 1955) is a Canadian jurist. She was nominated to the Supreme Court of Canada by Stephen Harper in October 2011. She is the first Greek-Canadian judge on the Court.
Early life
Karakatsanis was born in Toro ...
, calling for tougher standards for when police officers can search the home.
In June 2018, Brown wrote a high profile dissent with Justice Côté on the topic of religious freedom in the case of ''Law Society of British Columbia v. Trinity Western University''. The case concerned the constitutionality of a law society's decision to refuse accreditation to a university because it required students to sign a covenant promising to refrain from sexual activity outside of heterosexual marriage as a condition for studying at the university. The majority upheld the law society's decision as reasonable, but he wrote in dissent that "in a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference. The unequal access resulting from the covenant is a function not of condonation of discrimination, but of accommodating religious freedom."
In March 2021, the Supreme Court
found that the federal government's carbon price regime is
constitutional. Brown was one of three dissenting justices. He concluded that the
federal government's carbon price law was unconstitutional because it interfered with areas of exclusive provincial jurisdiction. Following the decision,
Sean Speer wrote in the
National Post
The ''National Post'' is a Canadian English-language broadsheet newspaper available in several cities in central and western Canada. The paper is the flagship publication of Postmedia Network and is published Mondays through Saturdays, with ...
that Brown "has distinguished himself as a powerful critic of judicial overreach in general and progressive jurisprudence in particular. In so doing, he’s become an intellectual beachhead for a nascent conservative legal movement in the country." He went on to write that his dissents "lay out an alternative viewpoint about the role of courts, the division of powers between Ottawa and the provinces and the relationship between the individual and the state."
Personal life
Justice Brown has been married to Heidi Brown since 1994. They have two sons.
See also
*
Reasons of the Supreme Court of Canada by Justice Brown The following is a list of Supreme Court of Canada opinions written by Russell Brown during his tenure on the Court.
2016
2017
{{DEFAULTSORT:Reasons of the Supreme Court of Canada by Russell Brown
Brown
Brown is a color. It can be c ...
References
{{DEFAULTSORT:Brown, Russell
1965 births
Living people
Justices of the Supreme Court of Canada
Judges in Alberta
People from Vancouver
University of Alberta faculty
University of British Columbia alumni
University of Toronto alumni
University of Victoria alumni
University of Toronto Faculty of Law alumni
University of Victoria Faculty of Law alumni
21st-century Canadian judges