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Appointment of Russ Brown extends Harper's influence on Supreme Court

Associate Chief Justice John Rooke, left, congratulates Justice Russell Brown on being sworn in as a judge on the Alberta Court of Queen's Bench in 2013. (File Photo)

University of Alberta

Prime Minister Stephen Harper has named Russ Brown, a conservative judge from Alberta, to the Supreme Court of Canada – the third appointment in 15 months to the country's most powerful court without parliamentary involvement.

In his early 50s, Justice Brown gives Mr. Harper the possibility of a quarter-century of influence on the court. Some see him as a future chief justice when Alberta-born Beverley McLachlin reaches the mandatory retirement age of 75 in four years.

With a doctorate in juridical science from the University of Toronto, Justice Brown has been fast-tracked by the Conservative government. He was associate dean of the University of Alberta law school when the government appointed him in February, 2013, along with another rising conservative star, lawyer Thomas Wakeling, to the Court of Queen's Bench. Just 13 months later, the two were promoted again to Alberta's top court, the Court of Appeal.

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The married father of two is a former member of the advisory board of a conservative legal group in Alberta, the Justice Centre for Constitutional Freedoms. Its website says its core views include a belief in "economic liberty," including property rights as part of the Charter of Rights and Freedoms – which has never been accepted by the Supreme Court. It also says equality before the law means "special privileges for none," which also runs counter to the Supreme Court's view that the Charter's equality clause is primarily for individuals from historically disadvantaged groups and its second part permits affirmative action for the disadvantaged.

"Current events remind us that the notion of limited government – particularly as it pertains to freedom of conscience and freedom of expression – can never be taken for granted in Canada," Justice Brown said in a website endorsement of the JCCF and its executive director, John Carpay, a former candidate for the Wildrose Party in Alberta.

His endorsement appeared to have been removed from the website Monday evening. Justice Brown could not be reached for comment.

Justice Brown has criticized Alberta for passing a law that he said infringed on the property rights of landowners to favour oil companies.

Explaining why property rights matter, Justice Brown once said in a radio interview: "Property rights are important because property is one of two things that we have to advance our own idea of how we want to get through life. We have two things, fundamentally. We have ourselves and we have the things that we assert control over and make ours. That's all we have when you strip away everything else. What I have is myself and I have my property. Those are the two things through which I pursue my own idea of how I want to live my life. That's why property rights matter."

Deborah Hatch, Past President of the Criminal Trial Lawyers' Association in Alberta, said the appointment is welcomed by both the defence and Crown prosecutors.

"I have appeared many times before Justice Brown and have always been impressed by his thoughtfulness, his keen intellect, his sense of fairness and restraint, and his respect for and understanding of judicial discretion," she said in an email. "He is definitely worthy of a position as important to a parliamentary democracy as a seat on the Supreme Court of Canada."

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An Alberta source said he has the respect of other judges for being a hard-working, excellent judge with a strong personality. "Nobody's going to push him around down there," the source said of Ottawa. "He's a good guy but he's strong."

A criminal defence lawyer, Brian Hurley, said his impression of Justice Brown is that he is a balanced, thoughtful, academically minded judge. "The left-wing defence lawyers I know breathed a sigh of relief," expecting a more right-wing judge to be chosen.

The Prime Minister's announcement does not say whether Justice Brown is bilingual – though Canada does not require that of its Supreme Court judges.

By convention, the appointment was to be made from a Western province. Some in Saskatchewan hoped that province would be tapped because it has been decades since the last judge from Saskatchewan, Emmett Hall, retired from the Supreme Court in 1973.

Justice Brown served as the thesis supervisor for John Rooke, Associate Chief Justice of the Alberta Court of Queen's Bench, when as a sitting judge he obtained his master's from the University of Alberta. Justice Rooke had political connections to the Harper government, and the experience would have helped Justice Brown earn the government's trust.

Mr. Harper promised to bring in parliamentary hearings for new appointees to the Supreme Court – and he did, in 2006, for Justice Marshall Rothstein of Manitoba, his first appointee. But after The Globe and Mail revealed his secret short list of candidates from which he made the failed appointment of Justice Marc Nadon in 2013 (the Supreme Court said Justice Nadon lacked the legal qualifications to join), the government cancelled the hearings and Parliament's involvement in the selection process. Since then, justices Clément Gascon and Suzanne Côté from Quebec and now Justice Brown have been chosen without parliamentary involvement.

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Justice Brown's specialty is economic loss in tort law. He replaces Justice Rothstein, a conservative member of the court who specialized in commercial law. The replacement will not alter the balance between conservative and liberal members of the court. Mr. Harper has appointed all but two members of the nine-person court.

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