Judge favoured CN in aboriginal dispute rulings: academic

A leading academic has called on a legal disciplinary body to investigate comments by a Superior Court judge who chastised police for not taking swift action to remove First Nations protestors from rail lines

By Peter Edwards Toronto Star

A leading academic has called on a legal disciplinary body to investigate comments by a Superior Court judge who chastised police for not taking swift action to remove First Nations protestors from rail lines.

Peter Russell, a professor emeritus of political science at The University of Toronto, accused Justice David M. Brown of “one-sided handling” of First Nations protests during the Idle No More demonstrations in the winter of 2012-2013.

Russell added his voice to a complaint made last month by Toronto lawyer Peter Rosenthal to the Canadian Judicial Council, which probes the conduct of judges.

Rosenthal earlier complained that Brown should have declared a conflict of interest before presiding over cases involving aboriginal protestors and CN rail lines.

Brown did not respond to requests for an interview sent to the media relations office of the Superior Court of Justice.

During the Idle No More protests in the winter of 2012-2013, Brown issued three injunctions, calling for protestors to be removed from rail lines.

In doing so, Brown sharply criticized police because they didn’t take quick action to oust protestors from rail lines.

Rosenthal also wrote in his letter of complaint to the Canadian Judicial Council, that Brown also should have disclosed that he represented CN Rail in tax litigation when he was in private practice before presiding over cases involving aboriginal protestors and CN.

While in private practice, Brown was also a witness for CN Rail in U.S. regulatory proceedings, Rosenthal wrote in his complaint.

“When that one-sided handling of the matter is coupled with his close association with CN as a practicing lawyer before his appointment to the bench and his failure to disclose that conflict of interest, it seems to me his conduct does not meet the standard of fairness or the appearance of fairness expected of a Canadian judge,” Russell wrote to the Canadian Judicial Council.

In his letter to the judicial council, Russell notes that Justice Sidney Linden recommended that police try peaceful means to resolve protests regarding aboriginal demonstrators in his final report into the 1995 fatal shooting of aboriginal protestor Anthony (Dudley) George by the Ontario Provincial Police at Ipperwash Provincial Park near Sarnia.

“Justice Brown’s scathing and insulting criticism of the OPP indicates he was either totally unaware of these policy developments in policing or silently disapproved of them,” Russell writes. “In either case, by not giving any weight to the considerations on which these policy developments in Aboriginal policing are based, he failed to show that he had carefully considered the interests at stake on both sides of the case in reaching his decision.”

Two of the injunctions granted by Brown concerned blockades of a short branch line near Sarnia and the third was on the main CN line near Kingston.

Russell, who specializes in judicial, constitutional and aboriginal politics, was described as “one of the great treasures of Canadian academia and a giant in the study of Canadian politics and law” in a successful nomination letter, supporting his lifetime achievement award by the American Political Science Association in 2012.