Sean Speer: The Supreme Court Justice who's not afraid to shake things up

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This week’s Supreme Court decision in favour of the Trudeau government’s carbon tax has already produced a lot of commentary about its political and policy ramifications. It’s led to speculation about what it will mean for the Conservative party’s climate policy, Prime Minister Justin Trudeau’s relationship with the premiers and the potential for growing federal intrusion into provincial jurisdiction under the auspices of “national concern.”

An under-explored aspect of the decision is the strong, first-principles dissent from Justice Russell Brown, who has distinguished himself as a powerful critic of judicial overreach in general and progressive jurisprudence in particular. In so doing, he’s become an intellectual beachhead for a nascent conservative legal movement in the country.

Brown, who was appointed to the country’s top court in 2015, came with a sterling record as a legal scholar at the University of Alberta on such topics as commercial law, medical negligence and trusts and estates. But still his appointment generated some controversy among progressive critics because of blogging and other activities that seemed to out him as a “conservative libertarian.”

His appointment generated some controversy among progressive critics

There was a predictable hue and cry that he was a “literalist,” an acolyte of American jurist Antonin Scalia and other dubious claims that basically amounted to an unspoken yet overriding critique: he wasn’t fully subscribed to the left-wing orthodoxy that dominates legal thought in Canada.

Since joining the court, Brown has generally avoided controversy. His written decisions, dissents and concurring opinions have exhibited a strict adherence to the law, as well as a respect for legal precedent. He’s also earned a reputation for being “open-minded, fair, thoughtful and generally a nice guy.”

But he’s not been afraid to disagree with his colleagues. His dissents are well-argued and substantive. There’s even reason to think that they’ve actually influenced other justices to join him on individual cases.

More fundamentally, though, Brown’s dissenting opinions lay out an alternative viewpoint about the role of courts, the division of powers between Ottawa and the provinces and the relationship between the individual and the state. As such, they’re intellectual sustenance for law students and young lawyers whose ideas and values may diverge from Canada’s progressive legal monoculture.

His highest-profile dissent was in the case of Trinity Western University’s ability to both have an accredited law school and require its students to sign a covenant forbidding any sex outside of heterosexual marriage. The majority of Supreme Court justices ruled in favour of provincial law societies who refused to accredit Trinity Western graduates due to the controversial covenant.

Brown disagreed due in large part to religious freedom. As he wrote (along with his colleague Suzanne Côté): “In a liberal and pluralist society, the public interest is served, and not undermined, by the accommodation of difference. The unequal access resulting from the covenant is a function not of condonation of discrimination, but of accommodating religious freedom.”

He also dissented in this week’s carbon tax case. The crux of the disagreement with his colleagues is about the design of the Trudeau government’s climate policy framework and how it conflicts with a clear division of powers between Ottawa and the provinces.

The Trudeau government’s “backstop” stipulates that provinces must conform to “minimum national standards” for a carbon tax or Ottawa will impose one. Setting aside one’s views on carbon taxes, this isn’t a normal means of intergovernmental action. It basically has the federal government dictating the specific policies that provinces must adopt and holding out the threat of nationalized action if they don’t.

The whole scheme relies on the federal government’s Peace, Order and Good Government authority in general and the rarely-used “national concern” doctrine in particular. The majority of Supreme Court justices affirmed the constitutionality of Ottawa’s unconventional approach.

Brown’s dissenting opinions lay out an alternative viewpoint

Brown strongly disagreed. He called the federal framework a “new, distinctly hierarchical and supervisory model of Canadian federalism.” It is, in his view, nothing short of “a model of federalism that rejects the Constitution and rewrites the rules of Confederation.”

His main argument is logical and compelling: if the provinces have the ability to conform to the federal climate law, then, by definition, the policy area is within their jurisdiction and in turn cannot be commandeered by the federal government. As he puts it: “Within their areas of legislative authority, provinces are not only sovereign, but exclusively so.”

He openly speculates about how Ottawa might use these new, expansive powers to impose national standards into all areas of provincial jurisdiction. He writes: “This would open up any area of provincial jurisdiction to unconstitutional federal intrusion once Parliament decides to legislate uniform treatment.”

These arguments may not have been persuasive for a majority of his colleagues, but Brown’s legal thinking and writing is highly influential among young lawyers and scholars. He’s leading a subtle yet important intellectual challenge to the legal status quo in this country. There are even progressives who like that Brown is thoughtfully yet powerfully shaking things up.

At age 55, Brown has as many as two more decades to shape the Supreme Court and influence a new generation of heterodox legal thought. There will no doubt be many losing battles such as this week’s carbon tax decision along the way. But there’s reason to believe that he’ll ultimately leave a fundamental mark on Canada’s legal debate.

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