Justice Brown was the outspoken leader of the Supreme Court’s unofficial opposition, repeatedly challenging a liberal view of rights
In his eight years on the Supreme Court, Justice Brown continued to blast away at entire areas of the court’s case law – for instance, at “substantive equality,” which he called “an open‑ended and undisciplined rhetorical device” used by judges to conceal “their own policy preferences.”
Consider one of Justice Brown’s signal victories, a 5-4 majority ruling in Annapolis Group Inc. v Halifax Regional MunicipalityHalifax had barred development of certain privately owned lands, and the owner sued, saying the restrictions were aexpropriation” or a “taking” – essentially, government theft of private property. Before he became a judge, Justice Brown wrote voluminously on the topic, calling the Supreme Court’s pro-government precedents in this area of law “incoherent.
The Ekins philosophy “is an argument against having judicial review,” said David Dyzenhaus, a professor of law and philosophy, also at the University of Toronto. Justice Brown’s co-written dissent in Frank “is the first sign of senior judges in Canada expressing support in a judgment for a deeply illiberal position, at odds with the Charter.
In Toronto Council v Ontario, in 2021, he and Chief Justice Richard Wagner wrote for a 5-4 majority that “unwritten constitutional principles” such as democracy cannot be used to strike down laws. This was one of the two cases that, in Justice Stratas’ view, returned rigour to the court’s Charter analysis.
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