Decision to leave ends Canadian Judicial Council investigation into matter
Supreme Court Justice Russell Brown is retiring immediately, following allegations made about his behaviour while at a high-end Arizona resort in late January – alleged behaviour that led to him being put on paid leave of absence and the subject of a Canadian Judicial Council review.
Russell released his own statement, saying, "For over ten years – eight on the Supreme Court of Canada – I have had the privilege of serving our country as one of its judges. Throughout, I have striven to do so with integrity and in the national interest.
"Unfortunately, as a result of a complaint made against me in connection with an event in late January in Arizona, I have not participated in the Court’s work for over four months. During this time, the Court has had to hear and decide important appeals without the benefit of a full panel."
He added that "at this point, it is impossible to know how much longer this delay would continue to impact on the Court’s work. Given the progress so far, it is not unreasonable to think that this process may continue well into 2024."
He ended his release by saying: "It has been an honour to deliberate on the important issues facing our country, and I am deeply appreciative of the opportunity that I’ve had to serve Canada."
The judicial council said in a release: “As per the Judges Act, the Canadian Judicial Council has the duty to investigate complaints made against federally appointed judges. Since Justice Brown is now no longer a judge, the Council’s jurisdiction over the complaint against him has ended under the Act. As such, proceedings before the Council that involve Justice Brown have come to an end.”
The council announced on March 7 that it was reviewing a complaint into the alleged conduct of Justice Brown, stemming from events which took place while he attended a banquet in Arizona on January 28, 2023.
That complaint was referred to the chairperson of the Council’s Judicial Conduct Committee, and on March 30, the CJC announced that the matter had been referred to a judicial conduct review panel, made up of four senior judges and one lay person, in accordance with the CJC’s by-laws.
Last week there was media speculation that the CJC was going to release a statement about where the investigation stood. The Globe and Mail has reported that last Thursday, the CJC was set to announce it would be holding a public hearing into the allegations but delayed releasing its decision to give Justice Brown time to consider his options. The CJC told Canadian Lawyer last week that it "would not be publishing a press release at this moment."
Since the CJC was created in 1971, this is the first time an SCC judge has stepped down over a misconduct claim..
More details of what was alleged to have happened have been reported based on a Jan. 29 complaint to the CJC by Philadelphia resident Jon Crump. He alleged Justice Brown pestered him and his friends at a Scottsdale resort on Jan. 28.
At the time Crump’s complaint become public, Justice Brown vigorously denied the allegation, putting out a news release through his lawyers that said: “My original intention in this matter was not to comment while the Canadian Judicial Council’s process runs its course,” but “in light of the false statements in the media by Mr. Jonathan Crump, I am compelled to respond.”
Crump, a 31-year-old US Marine Corps veteran and now a mortgage adviser, gave his version of events of an altercation involving Justice Brown at the five-star Omni Scottsdale Resort & Spa at Montelucia, claiming the judge displayed obnoxious behaviour.
Both were in the resort bar on Jan. 28. Justice Brown had earlier given a speech at a gala that honoured Louise Arbour, a former justice of the Supreme Court of Canada and a former UN high commissioner for human rights.
Arbour was receiving the 2023 Sandra Day O’Connor Justice Prize from Arizona State University. O’Connor was the first woman appointed to the top court in the US, and the award in her name was created in 2014 to recognize a life devoted to the rule of law, judicial independence, and human rights.
Justice Brown had been sitting at a table of Crump’s friends, and a Vancouver Sun article says Crump alleged that Justice Brown followed Crump’s party out of the bar, leading to an altercation that both say led to physical contact and later police involvement.
A police report of the incident, obtained by Canadian Lawyer indicates that a police officer arrived at the resort about 1:30 am on Jan. 29. The officer spoke to Crump and another person at the table, Paige Bowmaster, but not Justice Brown.
The officer wrote in his report that hotel security said they spoke with a man after the altercation who was identified by front-desk records as Russell Brown. The police report indicates Justice Brown showed no signs of injury, did not require first aid, and went to his room, according to the resort staff. No charges were laid.
However, Justice Brown gives a different version of the events of Jan. 28 to that given by Crump, though both say that Justice Brown joined Crump’s table of friends while Crump was not there.
Brown’s lawyers, Brian Gover and Alexandra Heine, put out a statement Monday on behalf of the retiring judge, saying Justice Brown's decision was the “regrettable result of a spurious complaint” that was lodged against him.
The statement from the lawyers also says evidence uncovered during an investigation into the complaint “demonstrated that the complainant’s allegations were fraught with glaring contradictions, inaccuracies, and embellishments.”
The "substantial evidence" refuting the allegations included:
The investigative report for Brown was prepared by a "very experienced and capable investigator," who is a former police detective, Justice Brown's lawyers say.
The lawyers’ statement also cites the legal opinion of the former Chief Justice of the Supreme Court of Arizona, “who, after examining the evidence in this case, concluded that under Arizona law, there was no basis for the complainant’s allegations of harassment and that there was no possible legal justification for his attack on Justice Brown.”
The lawyers’ statement also notes the complainant’s two female companions made public social media posts about the incident, “which showed that they found the incident humorous and used it to benefit financially.”
One of them stated, “I’d like to personally thank the country of Canada for an unforgettable and complimentary girls’ trip.” The other commented with a series of emojis, including a heart, a laughing-until-you-cry smiley, two punches, a police officer, a sunrise, and a bag of money. After the incident was reported by the press, these two individuals deleted their social media posts.
The lawyers' statement says the person who punched Justice Brown was described later by police as ‘"argumentative, hostile [and] antagonistic" and who also “began swearing profanities" The officer concluded that this was due to intoxication.
“This evidence and the other evidence uncovered increasingly pointed in one direction: to a calculated plan by the complainant to concoct an account in which Justice Brown was the aggressor – to ‘get out ahead of it,’ in the words of one of the complainant’s own companions," apparently to "avoid the legal repercussions of his actions.”.
"We are confident that, in light of all this evidence, Justice Brown would have been completely vindicated at the conclusion of the Canadian Judicial Council’s process. However, the effect of the process on the Court and the considerable strain on Justice Brown and his family have led him to this decision to retire.”
Justice Brown, 57. has been on leave since Feb. 1. His absence from the bench was first noticed when Law360 Canada, an online legal news service, asked the SCC why Brown was not included in an 8-0 judgment on the appeal of a man convicted of sexual assault.
The CJC was created in 1971 to carry out investigations into improper conduct of the judiciary and maintain the standards of the profession. Since then, it has recommended five federally-appointed judges be dismissed, but not at the SCC level.
Justice Brown was appointed to the Supreme Court of Canada on Aug. 25, 2015. Before joining the highest court in the land, Justice Brown was the chair of the Health Law Institute and the University Appeals Board and chair of the Professional Review Board at the University of Alberta.
Marco Mendocino, the federal Minister of Public Safety, told reporters during a scrum that "there are a lot of factors" that will go into finding a replacement for Justice Brown.
"Each and every time there is a vacancy that opens up on the Supreme Court, it's an opportunity for the government to first understand what the needs of the court are, but equally to be sure that the individual brings the highest qualifications with regards to the law and ability to be able to communicate what are very complex legal principles in a way that is accessible."
He added that he thinks this is "an increasingly important value that Canadians want to see, not only the Supreme Court but across every level of court." As well, a lot of thought will be given to "the dynamics around representation across the country, gender balance and the like."
