Judicial Biography: Justice Russell Brown

Post 6/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019).

Canadians are entitled to know about their judges. Its their system of justice. The system of justice does not exist to give judges jobs, it exists for the people of the country. So people are entitled to know as much as can be known about it and the judges who administer it. 

– Justice Russell Brown (CPAC Interview) 

Justice Russell Brown was appointed to the Supreme Court of Canada (“SCC” or “The Court”) in August 2015 and has demonstrated impressive judicial dexterity and agility in his four years on the Court.

Biography

Justice Brown’s life before being appointed to the Court reflects a curious, confident person with a penchant for adventure. In the small town of Burns Lake, British Columbia, Justice Brown grew up working in his father’s hardware store. He credits his parents with instilling in him a sense of community obligation, which has undoubtedly played a role in his career trajectory. At the urging of his mother, Justice Brown left Burns Lake and obtained a Bachelor of Arts degree from the University of British Columbia in 1987. He then ventured further, playing semi-professional rugby in Ireland and Romania, a sport which Justice Brown continues to take quite seriously.

Justice Brown returned to Canada and attended the University of Victoria’s law school, playing on their rugby team. He completed his Bachelor of Laws in 1994 and worked in private practice for several years. Justice Brown went on to obtain a Master of Laws in 2003, followed by a Doctor of Juridical Science in 2006, both from the University of Toronto.

From 2004 to 2013, Justice Brown was a professor at the University of Alberta and acted as Associate Dean for the final two years of his time there. He taught commercial law, medical negligence, personal injury, insurance law, trusts, and estates. He chaired the Health Law Institute of Alberta and held a spot on the governing board of the Canadian Forum on Civil Justice during his academic career.

Justice Brown’s rise through the ranks of the Bench have been described as “meteoric”. He was appointed to the Court of Queen’s Bench in Alberta in 2013 and to the Court of Appeal in Alberta in 2014, also serving as judge in the Court of Appeal for the Northwest Territories and of the Court of Appeal of Nunavut. Just two-and-a-half years after his initial appointment to the Bench, Prime Minister Stephen Harper recommended Justice Brown to replace Justice Rothstein at the Supreme Court of Canada.

The Supreme Court of Canada

Justice Brown’s appointment to the Court was criticized by the public for being political in nature, due in part to a number of blog posts he had authored for the University of Alberta faculty blog which indicated an affinity for Stephen Harper and the Conservative Party of Canada. In his four years at the Court, Justice Brown’s written decisions, dissents, and concurring opinions have, in fact, paid little attention to policy objectives at all, and instead reveal a strict adherence to statute, as well as respect for the legislature and legal precedent. 

Justice Brown has authored judgments on a wide variety of legal issues. Early on in his time at the Court, he co-authored the landmark majority judgment in R v Jordan, 2016 SCC 27, clarifying the right to trial within a reasonable time period. Very recently, he co-authored the majority judgment in R v Le, 2019 SCC 34, affirming that, as a racialized person, it is reasonable for the accused to have a lower threshold for believing he is detained in an encounter with the police due to the history of carding, “stop and frisk” and other negative behaviour against racialized folks by police. 

While Justice Brown has authored several important majority decisions, he has also authored some powerful dissenting judgments. The next section will explore Justice Brown’s recent dissent in the momentous Law Society of British Columbia v Trinity Western University [TWU], 2018 SCC 32.

TWU

TWU and Trinity Western University v Law Society of Upper Canada, 2018 SCC 33 were decided on the same day, considering similar issues but with respect to two different Law Societies. The two decisions are consistent, for obvious reasons, but within each decision the Court is divided on a variety of issues. Justice Brown co-authored a biting dissent with Justice Côté for both decisions. 

Facts & Procedural History

Trinity Western University (TWU) is an evangelical Christian university (the “University”) that made arrangements to open a law school. The University required all students and faculty to adhere to the Community Covenant Agreement (“Covenant”), a religiously based code of conduct. This Covenant prohibits “sexual intimacy that violates the sacredness of marriage between a man and a woman” (TWU, para 1). The Law Society of British Columbia (LSBC), the regulator of British Columbia’s legal profession decided not to recognize TWU’s proposed law school because of these words in the Covenant. TWU argued this violated their right to freedom of religion under section 2(a) Charter of Rights and Freedoms (“Charter”) (TWU, para 2). The British Columbia Court of Appeal found that the LSBC should have approved the law school. The LSBC appealed that decision.

The SCC: Majority

I will only briefly summarize the five-judge-majority’s decision. A full review and analysis of their decision warrants its own post (perhaps even multiple posts), as this was the longest decision delivered by the Court in 2018 with discussion of multiple legal issues. There were also two concurring opinions, one from then Chief Justice McLachlin, and the other from Justice Rowe.

The majority found that the LSBC’s decision not to approve TWU’s proposed law school demonstrated a proportionate balance between the limitation on the religious protections under section 2(a) of the Charter and the statutory objectives that the LSBC sought to pursue. They found that the LSBC was empowered to consider TWU’s admission policies through a lens of “public interest in the administration of justice,” and could use this consideration to determine whether the school should be accredited (TWU, para 44). The majority agreed with the LSBC that exercising this duty to consider the public interest in the administration of justice includes identifying inequitable barriers on entry to the law school, which, in this case, would have harmed LGBTQ individuals.

While the majority found that the LSBC did infringe on the University community’s s. 2(a) freedom of religion Charter right, they found it was justified under s. 1 of the Charter. They found that denying the University’s proposed law school did not “suppress TWU’s religious difference,” in that it did not deny evangelical Christians the right to practice their religion (TWU, para 102).

Justice Côté & Justice Brown’s Dissent

In their dissent, Justices Côté and Brown staunchly disagree with the majority opinion. They found that the LSBC “profoundly interfered with the constitutionally guaranteed freedom of a community of coreligionists” (TWU UBC, para 261). Agreeing that TWU may not be for everybody, the dissent emphasized that the self-identity of the TWU community was also at stake here because religion is about much more than just individual practice (TWU UBC, para 263).

The Statutory Mandate of the LSBC

First, Justices Côté and Brown found that the LSBC’s governing statute, the Legal Profession Act, SBC 1998, c9 [LPA], did not give the LSBC the power to interfere with the governance of law schools. The majority emphasized the statutory objective of upholding the public interest in the administration of justice in their analysis of the LPA. In contrast, Justices Côté and Brown firmly prioritized the “express limits” to the LSBC’s mandate set out in the statute (TWU, paras 271–273). Set out in the LPA, the LSBC’s mandate is limited to the governance of “the society, lawyers, law firms, articled students, and applicants” (TWU, para 282). The dissenting judges concluded these words clearly empower the LSBC to regulate the legal profession starting at, but not before, the licensing process (TWU, para 284). Accordingly, the LSBC is empowered to act in the public interest only insofar as it determines whether an applicant is fit for licensing (TWU, paras 275 & 288). Justices Côté and Brown then stated that the correct forums for bringing claims of discrimination in the context of legal education would be a provincial human rights tribunal, the legislature, or members of the executive (TWU, para 291).

The Doré Framework

Before applying the Doré framework to determine whether the LSBC infringed on the rights of TWU and, then, whether or not the infringement was justifiable, the dissenting justices considered the merits of the framework itself. (See Régimbald and Wilson’s article for a review of the full Court’s Doré discussion in this decision.)

The Doré framework, established in Doré v Barreau du Québec, 2012 SCC 12 [Doré] and Loyola High School v Quebec (Attorney General), 2015 SCC 12, applies where a court is reviewing the constitutionality of an administrative decision. The reviewing court must determine whether the administrative decision-maker reasonably exercised their discretion, considering whether they proportionately weighed “Charter values” in their decision. It is a controversial framework because it replaces the bright-line Oakes test that is otherwise used to assess whether an infringement of Charter rights is justifiable with a muddier consideration of ill-defined “Charter values.”

While the majority judgment affirmed Doré as a “robust framework” and “not a watered-down version of proportionality,” the dissenting justices strongly disagreed (TWU, para 304). In contrasting Charter values with Charter rights, Justices Côté and Brown explained that Charter values are amorphous and undefined, that they do not come from the Constitution but instead from the courts, and that this allows courts to define the values in a way that suits a particular moral judgment (TWU, paras 308-309). Furthermore, in applying the Doré framework, the Court has neglected to clarify who bears the burden of proof: Is it the state actor who is infringing on the right? Is it the claimant (TWU, para 312)? Ultimately, the dissenting Justices do apply the Doré framework “as [they] are able to understand it from jurisprudence”, but are troubled by its lack of clarity and question the need to have a distinct framework for administrative decisions at all (TWU, para 302).

An Unjustifiable Infringement

Justices Côté and Brown found that, even if the LSBC did have the power to govern legal education, its decision would violate the University community’s freedom of religion (TWU, para 268), They found that the “impugned state conduct interfere[d], in a manner that is more than trivial or insubstantial, with their [TWU’s] ability to act in accordance with a sincere practice or belief that has a nexus with religion” (TWU, para 318). According to the dissenting Justices, the TWU community sincerely believed that the Covenant is key to students, faculty, and staff fostering spiritual growth and development together (TWU, para 319). Thus, the LSBC’s decision violated TWU’s s. 2(a) freedom of religion Charter rights.

Departing from the majority, they found that the infringement was not proportionate. As previously discussed, the LPA limits the LSBC’s reach to the licensing process. The Justices therefore required that the LSBC demonstrate a detrimental impact on TWU law graduates’ fitness to practice the law in order to justify the infringement. Because the fitness of potential graduates was never an issue, Justices Côté and Brown found that the limitation on the TWU community’s freedom of religion was not justified (TWU, para 323).

In considering whether the interference with the TWU community’s freedom of religion is substantial, Justices Côté and Brown concluded that the LSBC engaged in “highly intrusive conduct by a state actor” (TWU, para 324). The LSBC indicated they would be willing to approve the law school only if the Covenant’s clause at issue was removed from the Covenant; the LSBC’s approval hinged state acceptance of the law school on the TWU community practicing their beliefs in a particular way (TWU, para 324).

Moreover, the dissenting Justices went on to find that approving the proposed law school would not be against the public interest. They asserted that accommodating religious diversity is in the public interest because a pluralistic, democratic society requires the state to create public space inclusive of all religious perspectives, even discriminatory ones (TWU, paras 329 & 332). This is a fairly strong statement, and one that took a different view of the public interest than the other judgments. 

Throughout their dissent, Justices Côté and Brown wrote a principled, thorough analysis of the issues before them. They exhibited empathy for the involved parties while centering the words of statute and the principles of Constitutional supremacy. Given the ongoing diverging opinions about the Doré framework, I will be surprised if their potent remarks with respect to said framework do not resurface in future decisions. 

Conclusion

In a 2016 interview with the Canadian Public Affairs Channel (CPAC), Justice Brown expressed his view on the most important quality of a judge: 

…the quality that I try, albeit imperfectly, to aspire to is one of humility. […] [This means] understanding that I may not know everything, that people have things to tell me about the law, [and] about their own circumstances. It also tells me something about my role: that I can’t fix every ill. I can do justice, but I am just one part of the larger puzzle that is the Canadian Constitutional order.

Although Justice Brown appears to be conservative in his interpretation of statute compared to his peers on the Court and in the opportunity to consider policy objectives, he is clearly a judge with empathy, integrity, and a demonstrated concern for separation of powers.