Exit Stage Left Rothstein

New Marshall In Town Says Judges Must Focus On Applying Law, Not Making It

Jim Brown, Canadian Press
Published: Monday, February 27, 2006

OTTAWA (CP) - Judges should stick to the law and leave social agendas to elected politicians, says the man nominated by Prime Minister Stephen Harper to be the newest member of the Supreme Court of Canada.

Marshall Rothstein, the first high court candidate in history to face questions from a committee of MPs, tempered his remarks Monday by observing that legislation must always be measured against the Charter of Rights. But the overall tenor of his comments will likely ease concerns by some - especially Conservatives - about so-called judicial activism.

"I'm not sure that I would be comfortable thinking that judges should be advancing the law with a social agenda in mind," said Rothstein.

"It seems to me that the social agenda is the agenda for Parliament . . . . The court's job is really to take what you (MPs) say about social issues and try to interpret it as best we can and apply it to the facts."

Justice Minister Vic Toews, who chaired the committee, was pleased with that job description.

"I think one can say that Justice Rothstein understands very clearly what the role of a judge is," Toews observed after the hearing.

Liberal, NDP and Bloc Quebecois members, whether they agreed or not with Rothstein's judicial philosophy, all said he was obviously qualified for a seat on the high court.

The hearing was notable for its civility - a far cry from the circus atmosphere some had feared based on similar hearings in the United States.

Harper is expected to make Rothstein's appointment official on Wednesday.

The prime minister said last week he's been looking for judges who will "apply the law rather than making it" and who won't be overly "inventive" in their rulings.

Rothstein, a 14-year veteran of Federal Court, readily agreed when prodded on the subject Monday by Conservative MP Diane Ablonczy.

"If I've interpreted him correctly, I absolutely agree," he said of Harper's comments. "Those are all aspects of judicial temperament that I think are appropriate."

That doesn't mean laws should never be struck down for violating the Charter of Rights, he went on.

But judges must remember that "the statute they're dealing with was passed by a democratically elected legislature, that it's unlikely that the legislature intended to violate the Charter . . . and therefore they have to approach the matter with some restraint."

Real Menard, the Bloc justice critic, said it's obvious Rothstein is the very opposite of a judicial activist and that he's "uneasy with the idea of creating law."

Menard also expressed concern that the Winnipeg-born judge speaks no French and has no knowledge of Quebec civil law. But he welcomed Rothstein's promise to remedy both those problems as soon as possible.

Rothstein, 65, peppered his testimony with a series of folksy anecdotes, including a tale of a long-ago summer job on the CPR line between Vancouver and Winnipeg.
"I often say that I learned more about life working in the dining car than anywhere else,"he reminisced.

"Working for 36 to 48 hours at a stretch, in close quarters with nine or 10 other people, from different backgrounds, different education levels, different prejudices, is not always easy."

As a lawyer and judge in later life, he said, he's always looked for evidence of "hard physical work" when screening applications from potential law clerks.

Sue Barnes, the Liberal justice critic, called Rothstein "an excellent nominee" but was far less enthusiastic about the hearing process.

Nothing came to light that couldn't have been discovered by reading Rothstein's written judgments and law review articles, she said.

Joe Comartin, the NDP justice critic, said it was only Rothstein's "diplomatic" answers that prevented the hearing from degenerating into a political free-for-all.

The judge politely dodged a series of loaded questions about the federal gun registry, the controversial security certificates used to deport terrorist suspects from Canada, the nature and limits of free speech and the mechanics of federal-provincial relations.

His task was eased by the ground rules set out at the start of the hearing by Toews, who warned fellow MPs that Rothstein would have the final say on whether or not to answer any question.

"I think this is necessary, given the central, independent nature of the judiciary in this country and that we, as parliamentarians, must respect that independence," said the minister.

Constitutional expert Peter Hogg reinforced that message, counselling MPs to steer clear of hot-button issues such as abortion, same-sex marriage or the legalities of Quebec secession.

Nobody delved into those areas, but Menard did test the waters early by asking Rothstein what he thought about the contentious gun registry that the Tories have promised to abolish.

"I think it's really a political question, a question of policy," Rothstein calmly replied.

"I don't mind the question. It's just that you must understand, that's not my area, that's your area."

© The Canadian Press 2006