See correction at bottom of this column

Just days before calling the federal election in early August, Prime Minister Stephen Harper named Russell Brown, an Alberta judge, to the Supreme Court of Canada. This appointment pleased some judicial and political conservatives, but it was not a sterling choice.

As for his legal values, Russell Brown, through extensive blogging, has railed against Supreme Court decisions that have given substance to constitutional principles. He opposed protections that were granted under the Charter’s “principles of fundamental justice,” such as the recognition of a right to physician assistance in dying. He derided the Supreme Court for deciding that the extradition of persons facing the possibility of execution violates the Charter’s prohibition against cruel punishment. He said the Supreme Court was wrong to answer constitutional questions relating to a province’s attempt to secede from Canada even though both national unity issues and the protection of interests during a process of dissolution are established as valued court functions.

He has opposed constitutional interpretations that would reflect the dynamism of social and political contexts or that promote underlying constitutional purposes; narrow interpretations of constitutional texts shut out consideration of contemporary values and conditions and rob a living document of vitality and relevance.

Politically, he condemned the Canadian Bar Association for supporting Omar Khadr’s release from Guantanamo Bay and claimed that both the Bar Association and Chief Justice Beverley McLachlin have been motivated by hostility to the Conservative government more than fidelity to law. Until the very day of being named to the Supreme Court, he served as an adviser to a conservative think tank that promotes constitutional protection for property rights and claims that affirmative action in aid of disadvantaged minorities violates equality, both contrary to the Charter’s content. He has mocked the Anglican Church for political correctness — a barely opaque attack on church reforms that promote equality for women and gays.

He is a literalist, a libertarian and a conservative. These match the legal and political values of the prime minister whose judicial nominating power is being used to establish judicial conservatism. Both Justice Brown’s views and the prime minister’s nominations can be seen as a normal and legitimate course for democratic will. In my view, this form of constitutionalism adopts unsound legal theory, lacks liberality of interpretation and defeats the idea of a common good. But this assessment does not demonstrate the impropriety of Brown’s appointment.

There are, however, structural and procedural bases for questioning this appointment. Justice Brown is the fourth Alberta jurist on the Court since there has last been a judge from Saskatchewan. Even if the next appointee to the Court were from Saskatchewan, the period of non-representation from that province would be two-thirds of a century. By long practice, membership on the Supreme Court has been based on a pattern of rotation in order to promote the national legitimacy of the Court; the prime minister has overridden this vital practice in order to promote his political ideology.

Second, political constraint was violated when the appointment was made right before an election. Although Justice Marshall Rothstein’s early retirement made possible the timing of this appointment, who could believe there is any legitimacy in appointing a new judge to the Supreme Court — the constitutional structure for preserving government under law — on the eve of a national election, just as prime ministerial appointing powers expire and as Parliamentary oversight evaporates?

Third, while attacks on political parties and policies, and on legal decisions, are open to virtually anyone, such partisanship in judges violates judicial ethics. For two and a half years before he was named to the Supreme Court, Justice Brown was a member of Alberta’s superior court and, then, its appeal court, and was obliged to preserve his neutrality on questions of law and politics. The timing of his blogged rants against decisions, judges and lawyers is not clear — they have disappeared from the Internet — one hopes and assumes this practice stopped at the time of his initial judicial appointment.

However, his role as adviser to the Justice Centre for Constitutional Freedoms, an organization that advances conservative positions that often are inconsistent with the terms of the constitution and with decided cases, continued all the time that he was a judge in Alberta’s courts. While promotion by a judge of constitutional positions that are contrary to the Charter’s terms, and to judicial decisions made under it, is not a clear indication of how cases would be decided, suspicions of predisposition and questions of judicial decorum most certainly arise.

This appointment advanced the politicization of Canada’s judiciary and it erodes confidence in the Supreme Court’s neutrality.

Correction- Aug. 28, 2015: This opinion article mistakenly said that Justice Brown served as an advisor to a conservative think tank until the day that Prime Minister Stephen Harper nominated him for appointment to the Supreme Court. In fact, Justice Brown ceased his advisory role with the Justice Centre for Constitutional Freedoms in February 2013, upon being appointed to the Alberta Court of Queen’s Bench. However, his endorsement of the JCCF remained published on its website until his Supreme Court nomination. According to a spokesman for the organization that endorsement was “mistakenly” left published.

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The article also raised the question of whether Justice Brown continued to blog after being appointed an Alberta judge. According to legal counsel for the Court of Appeal of Alberta, Justice Brown has not blogged since his 2013 judicial appointment.

John Whyte is Professor Emeritus in the Faculty of Law at Queen’s University.

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