On opinion evidence

There's plenty of reason for concern about some of the views put forward by the Cons' latest Supreme Court appointment. But keeping those concerns in mind, I'll argue that we should be careful about putting too much emphasis on Justice Russell Brown's past blog posts, rather than the more important question of his present suitability for the Supreme Court (and the process by which it was assessed).

Let's start by asking the question: how many people with enough legal experience to be considered for any judicial appointment reach that point without forming opinions on matters of politics and law?

The answer would seem to be obvious: any potential appointee will have opinions, whether expressed publicly or not. And the Cons have gone out of their way to select for ideology in making their judicial appointments. 

The difference in a case like Justice Brown's is then merely that some of his opinions are a matter of public record. But I have a hard time seeing how we should be more concerned with somebody who has written what Justice Brown did, as opposed to a similar candidate who held the same opinions while limiting their transmission to a closed group of friends and the Cons' vetters. (If anything, Justice Brown's previous openness at least gives parties arguing before the Supreme Court some idea as to the specific issues where recusal might be appropriate.)

Meanwhile, one would also expect an individual's application of personal opinion to vary with context.

As a law professor, Justice Brown had a reason to share views which might be relevant to his areas of teaching. And while the merits of his opinions and associations and their impact on his decision-making are surely worth discussing, they don't rule out the expectation that he'd decide matters fairly when faced with the limitations and obligations that come with a judicial appointment.

In Justice Brown's case, we do have a track record as to how he's made decisions in that capacity. And that's where I'd think scrutiny is more appropriate.

The most prominent example of Justice Brown's views coming into conflict with one of his colleagues is this decision, where he wrote for a 2-1 majority that a previous decision should not be reconsidered and took a fairly strong stance on the nature and application of stare decisis in the process. While that view may not be shared by all, one can't read it as suggesting a failure or refusal to consider issues judicially. And indeed to the extent it's applied consistently, it should shield precedents of all kinds from question - though of course that may make for a point worth watching.

Other cases where Justice Brown's view differed from at least one of his colleagues include this one, where he concluded for the majority that a trial judge unfairly interfered in a criminal trial by intervening on behalf of the complainant; this one, where he wrote for the majority in concluded that a trial judge improperly excluded evidence and misapplied the test in evaluating an "unsavoury" witness; and these two, where he concurred in higher sentences than those seen as appropriate by a dissenting judge. One can view them as reflecting a "tough on crime" approach to the facts of particular cases, but hardly as lying outside the realm of reasonable outcomes.

Of course, Justice Brown's track record was never subject to any scrutiny before Harper's unilateral announcement, which was both made without engaging in the Parliamentary approval process he once applied, and timed to avoid allowing the government elected by Canadians this fall to carry out its own evaluation. And those factors raise significant questions about the Cons' motives and actions in the appointment process.

But we should be careful not to treat Justice Brown's blog posts as the problem with Harper's choice - lest we resign ourselves to being judged (and indeed governed) only by those who have never cared enough about issues of public concern to comment on them.