Supreme Court Justice Russell Brown is on a leave of absence

Supreme Court Justice Russell Brown has been on a leave of absence from the court since the beginning of February — something the top court says is related to a confidential matter.

Brown's absence from the bench was first noticed earlier this month when Law360 Canada, an online legal news service, asked why Brown was not included in the recent 8-0 judgment in the appeal of Colin McGregor, convicted of sexual assault.

On that judgment, the court printed a single line that said, "Brown J. did not participate in the final disposition of the judgment."

A spokesperson for the Supreme Court said Brown has been on leave since February 1.

"Unfortunately, at this time we cannot disclose why Justice Brown is currently on leave, to respect confidentiality," said Stéphanie Bachand.

"There has been no statement by the court for this same reason."

Bachand said the Chief Justice alerted the justice minister of Brown's absence in accordance with the Judges Act. She said the Supreme Court can sit with between five to nine judges under the Supreme Court Act.

"The Chief Justice has made all necessary arrangements for the court to continue its work in Justice Brown's absence, including hearing all appeals, rendering judgment on the appeals currently under reserve, and deciding applications for leave to appeal," she said.

Amir Attaran, a law professor at the University of Ottawa, told CBC News that the reason for Brown's absence should determine whether the court keeps it confidential.

"For example, if Justice Brown is absent for personal reasons — because he ill, or is caring for a family member — then that is rightly confidential. But if it is for workplace reasons — he has been throwing furniture in the office or harassing coworkers — then that is not rightly confidential," he said.  

"Justice Brown is a public official, Canadians should at the least be told if his absence is due to personal or workplace reasons."

Upcoming cases

Errol Mendes, a professor of constitutional law at the University of Ottawa, called Brown's absence "very rare" and potentially problematic for the court.

"This situation is unusual mainly because of the lack of understanding as to why this is happening," Mendes told CBC News. "But also because of some major cases coming up.

"What is a big challenge for the court to try and avoid at all cost is to have a situation where there's a potential tie because they are equally matched, the dissent and the majority."

Mendes said such a conflict could occur if Brown does not return to the court in time to hear arguments about federal environmental impact legislation set for next month.

The Impact Assessment Act received royal assent in 2019. It allows federal regulators to consider the effects of major construction projects — like pipelines — on a range of environmental and social issues, including climate change.

Managing the court

In May of last year, in a 4-1 decision, Alberta's appeal court called the act an "existential threat" to each province's right to control its own resources. The court's opinion is non-binding.

"If previous rulings are anything to go by in terms of division of powers, which is what this issue is basically about, [Brown] would be one of the critical voices," said Mendes. "And to me, that's the more important part of this whole story."

Graham Mayeda, a law professor at the University of Ottawa, said he's not surprised the media were not told of Brown's absence, adding that the top court likely determined his reasons are personal or confidential.

He also said the work of the Supreme Court is unlikely to be compromised by Brown's absence because it "has the flexibility to sit in panels of fewer than nine judges, so the fact that one is on leave shouldn't impact the functioning of the court."

Brown was appointed to the Supreme Court of Canada on August 31, 2015.

Prior to taking up his seat on the bench of the top court, he 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.