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Justice delayed is justice denied: Supreme Court Justice Russell Brown resigns

In the midst of a misconduct investigation, Supreme Court Justice Russell Brown has chosen to resign his post on Canada’s top court.

The investigation was triggered by allegations of inappropriate conduct by Brown after an altercation in Arizona earlier this year. In a social setting, after a speaking engagement there, Brown was accused of making unwanted advances on a couple of women. In a public statement, Brown pointed to the slow misconduct investigation, the strain on him and his family, and the impact on the court’s proceedings, as leading to his decision that it was “for the common good” to resign. Accompanying the statement, Brown also released evidence to affirm his innocence in the matter.

While we aren’t in a position to judge Justice Brown’s guilt or innocence, we can consider the process. Brown was put on leave Feb. 1 and resigned on June 12. In his public statement he noted:

“At this point, it is impossible to know how much longer this delay would continue…. Given the progress so far, it is not unreasonable to think that this process may continue well into 2024.”

In Ecclesiastes 8:11, the Preacher tells us that: “When the sentence for a crime is not quickly carried out, people’s hearts are filled with schemes to do wrong.” The National Post’s Jamie Sarkonak echoed the thought: “The Supreme Court and the Canadian Judicial Council have shown troublemakers exactly what needs to be done to de-bench a judge.”

Canadian news website The Hub shared the reactions of other legal experts including Yuan Yi Zhu, an assistant professor of international relations and international law at Leiden University, who was very critical of the disciplinary process for Canadian judges.

“From Chief Justice Wagner’s decision to place Brown on an immediate leave of absence without official explanation on the basis of a flimsy complaint filed by a man who had assaulted his colleague, to the Canadian Judicial Council’s unbearably sluggish preliminary investigation which took the better part of half a year, to the numerous leaks from well-informed insiders to favoured journalists, the whole process has been designed to be as exhausting and wounding to Justice Brown as possible.

“There can be no better illustration of what American law professor Malcolm Feeley described as ‘the process is the punishment.’ Even if Justice Brown had been fully exonerated at the end of the open-ended process, his reputation would still have suffered, not to mention the fact that he would have been barred from exercising his chosen profession for the duration of the investigation, which could have run into years.”

The justice’s resignation has also shaken the Christian and conservative legal community.

Andre Schutten, Director of Law and Policy for ARPA Canada, told Reformed Perspective that Justice Brown’s resignation “is a major setback for our nation’s legal culture.”  Schutten explained that Justice Brown was “faithful to the law, and respected and guarded the rule of law. He was a constitutionalist and believed ardently that the law must be something more than the ruler’s whims. Where a majority of the Supreme Court pursued their own policy preferences and bent the law to reflect that, Justice Brown was loyal to the constitution, even when such loyalty was not in vogue.”

Schutten is concerned by what this means for the highest court moving forward, saying that it doesn’t bode well for religious freedom in Canada and is “another step toward judicial policy-making that is decidedly progressive.”

Sean Speer, The Hub’s editor-at-large, shared that conservatives sometimes overstate their lack of influence in Canada. However,

“the one area though where conservative despair has been justified is the judiciary. The ‘living tree’ view of the Constitution has been the dominant (even the sole) judicial philosophy at law schools and on the bench for more than a generation.”

The “living tree doctrine” says that the Constitution’s meaning wasn’t determined by those who wrote it, but is created by the judges who read it, that like a tree it should change and grow with the times. Speer went on to explain that there has been a change in recent years, with “a new generation of law students and scholars… capable of challenging the prevailing legal monoculture.” And he pointed to Brown as a key figure in this movement.

“His judicial dissents, including in high-profile cases like References re Greenhouse Gas Pollution Pricing Act and Trinity Western University v. Law Society of Upper Canada, gave this emerging cohort of conservative legal thinkers and practitioners a credible and different way to think about individual rights, the division of powers, and the role of the court…

“His departure from the bench, therefore, represents a regrettable blow to these efforts. That future now feels farther away especially since he’ll predictably be replaced by another ‘living tree’ exponent.

“It’s important however, particularly for the young people involved in the legal movement that Brown came to personify, that it must ultimately be bigger than one person. While his resignation creates a significant void, it cannot bring an end to these efforts. Quite the contrary. It reinforces the need for more Russell Browns.”

Schutten came to a similar conclusion, noting that Brown’s resignation underlines again the importance of Christian engagement in the law. “For too long, Christians abandoned the field to secularists and we shouldn’t be surprised that the result is so few principled judges. The Christian community must recommit to serving their nation also in the courts of law, inspiring, encouraging, and assisting the next generation of Christian leaders to pursue law as a calling while ensuring those Christian lawyers think christianly about the law.”

The resignation paves the way for Trudeau to appoint a sixth judge to the nine-judge bench that already had the National Post’s Tristin Hopper deeming it “the most activist Supreme Court in the world.”

While that’s not an encouraging thought, Christians can remember that one day we will see perfect justice exacted by the Chief Justice of the world’s Supreme Court, before whom every knee will bow.

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Pro-life - Abortion

The Supreme Court did not find a right to abortion

Is the “right” to abortion found anywhere in Canada’s Charter of Rights? To hear Prime Minister Justin Trudeau talk of it, you would think so. He regularly refers to abortion as a “right,” as do other abortion activists. In doing so, they are attempting to equate abortion with other Charter rights, such as freedom of expression and the liberty of the person. Many equate the supposed “right to abortion” with section 7 of the Canadian Charter of Rights and Freedoms, which recognizes: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. They then cite the Supreme Court decision in R v. Morgentaler (1988) as the source of this “right” – this is the decision that struck down Canada’s legal restrictions on abortion. But a careful reading of Morgentaler does not support the conclusion that Canadian law includes a right to abortion. That’s an important point for Christians to understand and be able to explain to others. While there are no legal restrictions on abortion in Canada, there are no constitutional or judicial reasons that there couldn’t be. To equip us to make that point, we’re going to take a close look at the Morgentaler decision and then at Section 7 of the Charter of Rights. The scope of the 1988 Morgentaler decision When looking at the Supreme Court’s dealing with section 7 in the 1988 Morgentaler decision, we need to make two notes. First, while five of the justices struck down the 1969 abortion law being challenged, they did so for three separate reasons. This means that while they agreed that the previous abortion law was unconstitutional, their reasons varied. Drawing conclusions from the decision must then be done with qualifications and by drawing from the various reasons. Second, the legal question of the rights of a pre-born child was deliberately sidelined by the Supreme Court and left to be determined by Parliament. The Supreme Court Justices understood that their role was limited to evaluating Parliament’s specific legislative framework (which then required pregnant women to obtain permission for abortion from “Therapeutic Abortion Committees”), not the general topic of abortion. Chief Justice Dickson, quoting Justice McIntyre, put it this way: “the task of this Court in this is not to solve nor seek to solve what might be called the abortion issue, but simply to measure the content of s. 251 against the Charter.” Section 7 and women in the Morgentaler decision The 1988 Morgentaler decision struck down the previous law on the basis that it interfered with the “life, liberty, or security” of the person in a manner that was not in accordance with the principles of fundamental justice – they said the abortion law of the time violated section 7 of the Charter. The interests considered were not solely those of women choosing to have an abortion, but also the physicians who performed unauthorized abortions and faced imprisonment under the law. In terms of what rights women had to abortion, Chief Justice Dickson (writing with Justice Lamar) didn’t address the issue, focusing instead on the procedural elements of the law and the impact of the Therapeutic Abortion Committees on women’s health. Meanwhile, Justice Beetz (writing with Justice Estey) held that Parliament had carved out an exception to a prohibition on abortion, but had not created anything resembling a right to abortion. He explicitly stated: “given that it appears in a criminal law statute, s.251(4) cannot be said to create a ‘right’ , much less a constitutional right, but it does represent an exception decreed by Parliament.” Justice McIntyre (with Justice La Forest) similarly concluded that, except when a woman’s life is at risk: “no right of abortion can be found in Canadian law, custom or tradition, and that the Charter, including s. 7, creates no further right.” Justice Wilson, writing alone, gave the most expansive definition of women’s interests under section 7, finding that the guarantee of “liberty” included “a degree of personal autonomy over important decisions intimately affecting their private lives.” This idea of autonomy of “choice” for women was not endorsed by the other six justices and was not without limits, even in Justice Wilson’s own estimation. Ultimately, the 1988 Morgentaler decision: did not assume a right to abortion did not create a right to abortion, and cannot be interpreted as implying a right to abortion. Current Supreme Court Justice Sheilah Martin notes that although they struck down the abortion law in 1988: “the Supreme Court did not clearly articulate a woman’s right to obtain an abortion… and left the door open for new criminal abortion legislation when it found that the state has a legitimate interest in protecting the fetus.” All the justices in the 1988 Morgentaler decision agreed that protecting fetal interests was a legitimate and important state interest, and could be done through means other than the law at that time. Even understanding section 7’s “liberty guarantee” as including the freedom to make “fundamental personal choices” does not end the debate, especially when such a choice directly impacts another person’s Charter guarantees. While the courts have failed to extend Charter protection to pre-born children to date, they have consistently affirmed Parliament’s ability to legislate protection of fetal interests. Unlike the Supreme Court, which is limited to hearing individual cases based on a confined set of facts, Parliament is able to hear from a variety of voices and act in a way that considers broader societal interests. The Supreme Court has shown deference to Parliament knowing that Parliament is in a better position to make such determinations. While Parliament has considered various legislative proposals that would create a new abortion law, none of them have passed, leaving Canada with no abortion law. Canada is the sole Western nation without any criminal restrictions of abortion services. Every other democratic country has managed to protect pre-born children to some degree. So Canada stands alone in leaving the question unanswered – not because there is a right to abortion, but because of the inaction of Parliament. As we defend life from its earliest stages, it is important to understand where Canada is as a country and what changes need to be made to our law. While there is much that can be improved in Canadian law, we do not have to fight a pre-established Charter right to abortion. It should be our goal, and the goal of Parliament, to recognize the societal value in protecting vulnerable pre-born children. Tabitha Ewert is Legal Counsel for We Need a Law. For the extended version of this article, along with extensive references, see We Need a Law’s position paper “Under Section 7 Abortion is not a Charter right.” ...