Canada, Politics

The View From Up North: Welcome To Our Newest Supreme Court Judge — I Think

Canadian columnist Steven Dykstra reviews the résumé of the Supreme Court of Canada's newest member, and he is... not impressed.

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I want to welcome our newest puisne judge to the Supreme Court of Canada. Mr. Justice Russell Brown was appointed to the High Court on August 31st and officially welcomed on October 6th.

As I’ve mentioned in this column before, our Supreme Court judge-picking system is quite different from the United States. In America, the President nominates and the Senate confirms, after conducting public hearings. U.S. Supreme Court nominees undergo intense scrutiny—political leanings, scholarly writings, judicial opinions, law school papers, sock drawer contents. Advocacy groups weigh in for or against based on how they think this judge might affect the issues that matter to them. Additionally, academic background is huge. Here are the law schools of the current roster of the U.S. Supremes: Harvard, Harvard, Harvard, Yale, Columbia, Harvard, Yale, Yale, Harvard.

In Canada, Prime Minister Harper decides which judge he wants—and that’s who he gets. No Parliamentary confirmation hearings. Sure, there are some advocacy groups who try to influence the process, but, for the most part, the Prime Minister has absolute control over who sits on the Supreme Court of Canada, with no justification required.

Opaque to say the least.

Here is the nub of this column. I have never met Mr. Justice Brown. I don’t know anybody who knows him. But, just from reading his background, I’m concerned he might be very… average. Don’t get me wrong, he could have a tremendous legal mind, but his background doesn’t impress me.

His official Supreme Court bio says, since his call to the Bar, he has worked for three different private law firms—none of which are particularly notable (i.e., no Seven Sisters). From 2004 to 2013 he was a member of the Faculty of Law at the University of Alberta (tenured since 2009). He assumed the office of associate dean for his final two years at Alberta (associate dean, not dean). He published a treatise, and a number of scholarly articles during his academic years. Sounds like the profile of pretty much every law professor in Canada.

As to judicial experience, he was appointed to the Court of Queen’s Bench of Alberta in February, 2013. He was raised to the Alberta Court of Appeal in March, 2014. Thus, he had just over two years of judicial experience before landing on the nation’s top court. Holy fast track, Mr. Harper! Mr. Justice Brown barely learned how to run a trial (as a judge) before jumping to the Court of Appeal, and barely warmed his Appeal seat before heading off to Ottawa. Can you gain judicial wisdom in barely two years of sitting on the bench? Maybe judicial experience doesn’t matter. I mean, the SCC only decides the most important legal questions in the country.

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In conducting my research on our newest justice, I read at least a half-dozen stories about his appointment. At no point did anyone describe him as “brilliant”, or something equivalent. The closest I could find was a quote from Professor Margaret Hall who called him a “truly outstanding scholar”. I believe legal brilliance is an absolute requirement for elevation to the Supreme Court. I would have felt better if person after person who knew Justice Brown described him as “brilliant” or “amazing legal mind” or “the absolute best candidate for the position”.

The sum total of his experience leaves me… underwhelmed. Perhaps he is brilliant. I just don’t have enough information to make that conclusion.

At the time of the appointment, the Toronto Star opined that “Russell Brown doesn’t belong on the Supreme Court”. The opinionist, John Whyte, took exception to much of Justice Brown’s background. He called him “a literalist, a libertarian and a conservative.” He noted these values matched the legal and political values of the man who appointed him, Prime Minister Harper.

Now, I’m decidedly not libertarian or conservative. I would prefer to keep the libertarians and the conservatives off the Supreme Court. But, that’s not the point of this column. I want the best candidates to the get the job, liberal, conservative or otherwise.

That’s why I think the Canadian process needs to be re-worked to take much of the power out of the Prime Minister’s hands. There is no transparency, no right of public input. The Prime Minister does not have to provide any justification for who he selects. Because of this lack of scrutiny, he can select unimpressive candidates at his whim.

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That’s just wrong.

The U.S. process, while not perfect, is far more transparent. It’s a true fight to confirm a Supreme Court nominee. The politicians, the lobbyists and the people get involved.

At the end of the process, America knows a lot about its Supreme Court judges. People might not agree with their political leanings, but they know intimately what those leanings are. Furthermore, for the most part, each U.S. Supreme has impeccable academic and work experience. The United States does not allow “average” on its Supreme Court. Brilliance is sine qua non.

That’s what I want for Canada. I want an open and transparent process that requires an independent body to vet every single SCC nominee. I want a public hearing on the matter. I want each nominee sliced and diced. I’m happy to leave the ultimate choice in the Prime Minister’s hands, but not before he has to justify to the country why he thinks his nominee has all the brilliance, skills and experiences necessary to sit on the highest court and provide the highest level of judicial excellence.

It’s time to put in a system that ensures our Supreme Court is truly filled with supreme jurists.

That’s the View From up North. Have a great week.

Earlier: The View From Up North: Stroking Your SCOTUS

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Steven Dykstra Law Professional Corporation, a boutique corporate/commercial law firm located in the greater Toronto area. You can contact Steve at steve@stevendykstralaw.ca. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@Law_Think), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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