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Monday, February 27, 2006



Mr. Réal Ménard: Do I have time for one last question, Mr. Chairman?


The Chair: Just a brief comment, Mr. Ménard.


Mr. Réal Ménard: What role do you see yourself playing in the fight against poverty? For example, if the Canadian Human Rights Act also listed social circumstances as a prohibition against discrimination, do you think this might improve the lot of our fellow citizens? Have you given this matter any thought?


Hon. Marshall E. Rothstein: Once again, the question of whether the Canadian Human Rights Act is to be amended or not is a matter for the legislative branch, of course, not for the judicial branch.

I am aware that cases involving poverty issues are working their way through the courts. To the extent that those kinds of issues have to be decided, I'm sure the courts will, and it may well be that at some point the Supreme Court will have to deal with that issue. I don't think, in general, I can say more about the issue. I'm aware of it, and I'm aware that it's an issue of importance and that legislators like you should be concerned about those issues. I can't say more about it specifically.

The Chair: Thank you.

We'll have to move on to the next questioner. Thank you, Mr. Ménard.

Next is Mr. Comartin.

Mr. Joe Comartin (Windsor—Tecumseh, NDP): Thank you, Mr. Chair.

Thank you, Justice Rothstein, for agreeing to come today.

I think you may be aware that it's a bit difficult for me to be asking questions, since I have serious objections to this process.

I'm going to ask my first question to Professor Hogg.

Professor Hogg, other than the United States, do any of the countries closest to us, England, Australia, and New Zealand--I was going to say “interrogate”--ask questions, in public, of nominees to their highest court?

Prof. Peter Hogg: No, England, Australia, and New Zealand do not do so, Mr. Comartin. But I would point out a difference, in that England and New Zealand have no entrenched constitution at all, so judges do not play a role in striking down statutes in those countries. In Australia, although there is a constitution, there is no charter of rights; there are only federalism issues. So judges don't play the same heavy role in public policy through a charter of rights in those countries.

Mr. Joe Comartin: Can I interrupt, Professor Hogg? In fact, England is now subject, because of their joining the European Union, to the European charter of rights. In fact, in January of last year it struck down some of the anti-terrorism legislation that the parliament had just recently passed. Because of that change in their judicial structure and their constitutional structure, are they looking to conduct interviews of their nominees to the House of Lords?

Prof. Peter Hogg: I don't know whether they are or not.

The United Kingdom Human Rights Act allows the judges to declare when a law is incompatible with the European convention, but doesn't allow them to strike it down directly. New Zealand has the same situation with a statutory bill of rights like our old Canadian Bill of Rights. I think you are right in saying that in each case the judges are becoming more and more involved in these issues, but they haven't reached the stage we've reached here in Canada or in the United States.

If I could give you one other example, when the South Africans put together their new constitution following majority rule, they did provide for a formal, open public process not unlike the process that occurs in the United States and is occurring here.


Mr. Joe Comartin: Thank you.

Justice Rothstein, to follow Professor Hogg's comments about some of what we want to know, as the chair mentioned in his opening remarks, you have a history of prolific writing, and I just want you to confirm this. My notes show that during the seven years you were on the Federal Court, you wrote 578 decisions, and when you were on the Federal Court of Appeal, you wrote 324 decisions. In addition to that, you've written decisions on the military side of it.

My addition shows that you're getting close to a thousand decisions in your history. Are those statistics reasonably accurate?

Hon. Marshall E. Rothstein: I have to be honest with you, Mr. Comartin, I've never gone back to check. I saw long lists of cases--and they weren't prepared by me, I might say--and I assume they're accurate. If that list comes to the numbers you've said, then I agree.

Mr. Joe Comartin: Mr. Rothstein, one of the issues is always how many times you were appealed since you've been on the Federal Court of Appeal, and I believe the figure is about 15 times. You were upheld seven times and overturned seven times. What happened to the other case? Maybe it was sent back for a new hearing.

When you're sitting as a Supreme Court justice, there is always the issue of how you treat the lower benches, so that you don't destroy them in terms of the way the decisions are written, when in fact you're overturning them. Could you comment on what approach you took at the Federal Court of Appeal when you were overturning lower court justices and how you handled the sensitivity of it?

Hon. Marshall E. Rothstein: That's a really good question, because I've been in the trial court and I was overturned by the Court of Appeal before I was there, and there is sensitivity. The difficulty is that when an appeal court overturns a lower court decision, you have to be decisive. You have to explain why the lower court was wrong, so you can't pussyfoot around the issues; you have to explain it so that it's coherent. But there's an appropriate way and an inappropriate way. The appropriate way is to do it respectfully, to explain what you think the lower court judge meant and what the nature of his reasons was, with an explanation saying why you disagree.

The inappropriate way is to make it appear as if he's a stark raving idiot, and occasionally that happens. Occasionally in the exuberance of trying to explain in a clear way why that judge was wrong, judges in appeal tend to go a little bit overboard.

One of the things we do when we collaborate on writing a judgment is try to be sensitive to that. Even if we have no important amendment to make to a judgment that another judge has written, we may suggest a change of wording and a softening of a criticism, if you like, in order to accommodate the sensitivities. We're all judges, whether it's a lower court or a higher court. We're all trying to do our job, and there is no room in the judicial world for inappropriate demeaning of lower courts, or of counsel for that matter.

Mr. Joe Comartin: In terms of making decisions that may not be in keeping with your personal position on an issue but are in keeping with stare decisis, do you have rules of thumb? Do you have techniques as to how you sort out what may be your own personal viewpoint, biases, or whatever, versus where the law says you should be going?


Hon. Marshall E. Rothstein: When you say “personal biases”, I take it to mean that you wish you could come to a certain decision, but the law doesn't allow you to get there.

Mr. Joe Comartin: Yes.

Hon. Marshall E. Rothstein: Sometimes that occurs in the trial court. Sometimes you'll see a very sympathetic situation and you'll find you really want to do something for the litigant, and you do it. Then the other party appeals, and the appeal court tells you that you were wrong. After that happens a few times, you tend to become more aware of and sensitive to the legal side of the issue, and you tend to have to follow the law. That's our system.

The Chair: Thank you. We'll have to leave it at that.

Ms. Ablonczy.

Mrs. Diane Ablonczy (Calgary—Nose Hill, CPC): Thank you, Mr. Chairman.

Thank you, Justice Rothstein, for your presentation, which I very much enjoyed. I also enjoyed reading your paper at Oxford University last year on the seven rules for advocacy in intellectual property cases. The only reason I read this is that it started out with your seven rules, which were quite interesting. I especially liked your seventh rule, which said that if you think you're losing the argument by the questions the judges are asking, just tell them you're going to appeal and that will bring them to their senses. But of course, if you are confirmed to the Supreme Court, lawyers won't be able to use that tactic on you.

Hon. Marshall E. Rothstein: They can go to the media or to the professors.

Some hon. members: Oh, oh!

Mrs. Diane Ablonczy: There's always a higher authority, right?

Hon. Marshall E. Rothstein: There's always a higher authority, yes.

Mrs. Diane Ablonczy: Mr. Justice, when the Prime Minister announced that he was initiating this process, a review of his nomination to the Supreme Court, he used a phrase—kind of an interesting phrase I hadn't heard before—called judicial temperament. You've been talking a bit about that in your presentation and in answering some of my colleagues. But the Prime Minister said what he meant by that was the degree to which a judge is prepared to apply the law, rather than make it—to apply it in a way that uses common sense and discretion, but without being inventive. I was struck by that phrase and would be very interested in knowing if this is your view of the role of a judge. How do you view your role?

Hon. Marshall E. Rothstein: If I am correctly interpreting what he said, I take it that what he meant is that judges should apply rather than depart from statutes and that they shouldn't be inventing laws of their own, if that's his reference to invention. If I've interpreted him correctly, I absolutely agree with that. I think they should apply the law, they shouldn't depart from the law, they shouldn't be inventing their own laws, and they should use common sense and discretion. Those are all aspects of a judicial temperament that I think are appropriate.

Mrs. Diane Ablonczy: Mr. Justice Rothstein, with the advent of the Charter of Rights and Freedoms in 1992 and with the courts now being called upon to determine the constitutionality of federal and provincial statutes—and you referred to this—based on whether the laws actually comply with or violate the charter, I'm sure you're aware that there are those who have commented on the increasing activism of judges and the courts, and that they've moved into the area of public policy-making. You've been a judge for some time, and again I'd be interested in your comments on this perception, whether it's real or imagined, that through the exercise of interpreting the charter, judges have entered the area of public policy-making that ought more properly to be left to legislators.


Hon. Marshall E. Rothstein: Thanks, Ms. Ablonczy.

Let me start by saying what judges always say: you have to look at everything on a case-by-case basis. So it's difficult to make a general overview comment about that.

I know there are controversial views, or at least views in controversial cases, when the Supreme Court makes a decision. A lot of those are very difficult cases, and maybe that's seen sometimes by the close vote in the Supreme Court--five to four, six to three, or a vote like that. What I would say is this: when judges apply the charter, the most important thing is that they conduct a thorough and rigorous analysis according to the principles that have been established over the last twenty years or so as to how to go about dealing with a charter challenge.

When it comes to section 1 of the charter, which provides that even when there's a charter breach the law may be saved if justified in a free and democratic society, the judges are forced a little bit to get into what sometimes is called a policy area, trying to decide whether there's a minimal impairment, which I mentioned in my opening remarks. To what extent does the law impair the charter right? To what extent should there be deference to the legislature? The difficulty is that it involves line drawing sometimes, and that sometimes takes us into an area that, if it's not there, is close to policy-making. That's what section 1 says, and it has to be dealt with.

Sometimes that happens, but the important thing is that judges, when applying the charter, have to have recognition that the statute they're dealing with was passed by a democratically elected legislature, that it's unlikely the legislature intended to violate the charter. Sometimes it happens. But they have to be aware of that, and therefore they have to approach the matter with some restraint. But the most important thing is that they apply a rigorous and thorough analysis, and if they do that, then I would say they are doing their job. If they depart from that, it might be a different matter.

Mrs. Diane Ablonczy: Thank you very much.

I just have a brief supplementary.

Do you have any advice to offer us, as members of Parliament, in this kind of situation? You mentioned the question of whether the legislature intended to violate the charter. What could we do to make your job as a judge easier in those kinds of circumstances?

Hon. Marshall E. Rothstein: I wouldn't want you to make the job too easy, or we'd not have any jobs.

But there I'd probably have to say that I have to defer to you. You and your advisers are obviously the most expert people in drafting legislation. As judges, sometimes we criticize Parliament or the legislatures for unclear laws. Mr. Comartin asked me about sensitivity to lower court judges in writing judgments, and I should say that we probably are sometimes a little bit insensitive to Parliament when we criticize their drafting, and maybe we should be a little more sensitive there. But I think I have to leave that to you and your advisers to do as best you can.

The Chair: Thank you.

Mr. Cotler.

Hon. Irwin Cotler (Mount Royal, Lib.): Thank you, Mr. Chairman.

I also would like to welcome you, Mr. Rothstein. As my colleague Sue Barnes said, our party regards you as an excellent judge, and I want to join in the words of Justice Minister Toews, who characterized you as a brilliant jurist, as having a remarkable intelligence, and as being a prolific writer and a man of the highest integrity. Those were the words used by Justice Minister Toews.

As the justice minister who initiated the rather comprehensive and sustained consultative process with members of the judiciary, the provincial attorneys general, heads of law societies, academe, and the public, I can attest to the uniformly high esteem and respect in which you are held by members of the bench, the bar, and academe as someone with a unique range and repository of experience and expertise as a practitioner, as a law teacher, and as a judge at both the trial and appellate levels.

I would like to put several interrelated questions to you, if I may.

First, you spoke very eloquently about a kind of autobiographical background in the law. If I might interpose and take it back one step, because you began with your life in the law as a law student, what led you to choose to enter the legal profession and the life of the law to begin with?

Second, who were some of the people who might have acted as mentors and role models for you? You mentioned two: Cliff Edwards as a law teacher and Art Mauro as a practitioner. You don't necessarily have to mention their names, but were there judges and jurists who influenced you as role models or mentors?

The final question is this. What have you learned from your experience as a practitioner, as a law teacher, and as a judge—you have made reference to this, so this could be abbreviated—that would prepare you to be a Supreme Court judge?

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