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Daly praises Rothstein’s ability to tackle ‘heavy lifting’ at SCC

Thursday, September 03, 2015 @ 8:00 PM | By Cristin Schmitz

Supreme Court Justice Marshall Rothstein says he “struggled” with striking down Canada’s assisted suicide law this year as well as with other “difficult” cases the court confronted during his more than nine years there.

The 74-year-old Manitoban confessed in an exclusive interview with The Lawyers Weekly he would “probably” remain a judge but for looming mandatory retirement.

“I agree with it for everybody else, but me,” he joked ahead of his departure Aug. 30 (he has six months to finish his reserved judgments, and sign on to other appeals he heard). From there, he plans to do what most other vigorous Supreme Court retirees do: join a law firm, give legal opinions, do arbitrations and, if asked, handle the occasional public inquiry.

“I don’t play golf and I don’t play bridge, so what can I do — I have to work,” remarked the energetic jurist, who gets to the office around 7 a.m. each day. “I just know I wouldn’t be happy if I wasn’t working.”

Justice Rothstein has generated 99 written judgments since he was elevated from the Federal Court of Appeal in March 2006, or about 11 a year, according to Supreme Court statistics. His prolific oeuvre includes leading cases on behalf of the court, for example, on hate speech and the Income Tax Act’s general anti-avoidance rule, as well as notable dissents in the areas of copyright, administrative law, and labour law that some experts believe could gain traction in future. (See related story page 2)

His departure is “an important loss to the court,” said Université de Montréal professor Paul Daly.

“He was someone who was intimately familiar with the rules of administrative law, a very technical body of law which is not easy to master. And he also became the court’s go-to man in questions of economic regulation — complex questions about pensions, for example — and tax. He did a lot of the heavy lifting of the court on these difficult questions in the last four or five years.”

Even Justice Rothstein’s dissenting opinions have “provided a valuable and principled counterpoint to majority opinions taking the law in new directions,” Osgoode Hall Law School professor Jamie Cameron said.

Justice Rothstein told The Lawyers Weekly when he first arrived at the court he didn’t realize “how hard the work was here” given the court’s responsibility as the final arbiter of legal issues and the sheer complexity of the work.

“In many respects it’s cutting edge,” he said. “Ninety per cent of the cases are very controversial, and very difficult to decide and that’s why they’re here…When I say ‘difficult,’ it requires a lot of time, a lot of thinking, a lot of reading.”

Among the most difficult of his tenure, he said, was Saskatchewan (Human Rights Commission) v. Whatcott [2013] S.C.J. No. 11, where the court unanimously upheld the constitutionality of the hate speech ban in the province’s human rights code. The court wrestled with the case for nearly 17 months. Civil libertarians derided Justice Rothstein’s judgment as too deferential to lawmakers, but minorities and other targets of hate hailed the carefully tailored ruling as a vindication of their right to be free from discrimination.

“Trying to find the correct balance between freedom of expression, and the role of a legislature to limit that, is very difficult, “ Justice Rothstein said. “In Whatcott we said…it had to be a very narrow, narrow limitation.”

He also admitted he struggled with Carter v. Canada (Attorney General) [2015] S.C.J. No. 5, the unanimous judgment in which the court distinguished Rodriguez v. British Columbia (Attorney General) [1993] S.C.J. No. 94, and declared unconstitutional the Criminal Code’s ban of assisted suicide, despite narrowly upholding it 22 years ago.

“This is one of the areas where a judge does his or her best to try to decide on the law and on the facts, and to suppress their own personal views about a case,” Justice Rothstein said. “I struggled with that case because, as judges, we have a duty to try to create certainty in the law, and predictability of the law, and we can’t go changing precedents just because we feel like it. And so I struggled with it in the sense that I had to come to grips with the fact that the facts were different, and that the law [on over breadth] was different than it was in Rodriguez, to justify departing from Rodriguez.”

While he is a leading proponent of judicial restraint, Justice Rothstein firmly rejects the charge that the Supreme Court has taken an obstructionist approach in recent years by striking down a raft of Stephen Harper government initiatives.

“I think the Supreme Court has acted in accordance with its legal obligations and its legal requirements,” he said. “I think that the press has perhaps, in a number of cases, tried to pit the court against the government. I don’t look at it that way at all, and I venture to say that I don’t think our judges do generally…We get the cases that are presented to us, and we have to decide them as best we can. And we don’t decide the case because we want to have a contest with the government.”

Justice Rothstein said he anticipates tough legal issues for the Supreme Court in the near future stemming from technology, including its impacts on privacy, and the tug between security and liberty.

“Those are very difficult balancing situations and they will be difficult for the court,” he predicts.

Justice Rothstein didn’t want to identify specific cases that hit him emotionally over the years. But he did admit that “if you see that somebody has been wrongfully convicted, or that sort of thing, you kind of look at that and say: ‘That’s big.’ And that does hit you emotionally.”

(In 2013, on behalf of the court, Justice Rothstein ordered a new trial for Leighton Hay, who was imprisoned for 12 years for a murder he denies committing.)

Justice Rothstein said he sees pros and cons in public vetting of Supreme Court nominees. Although he experienced restrained and respectful questioning by MPs in 2006, the process pioneered by the Conservatives (and now scrapped) turned more partisan in 2011 with the Parliamentary vetting of Supreme Court Justices Michael Moldaver and Andromache Karakatsanis.

“The pluses of that process involve the fact that the public gets to have some glimpse of who’s getting appointed to this job. It is an important job, and the fact that the public gets that bit of insight into a judge is probably a good thing.”

Yet public vetting does at times degenerate into asking “highly personal questions,” or asking questions in ways that are intended to commit judges to certain ideas.

“Those are negatives in my view,” he said. “So I don’t think I can say that that is absolutely the only, and the best system that there is.”

The Conservatives’ appointment process was derailed last year when the Supreme Court quashed Justice Marc Nadon’s Supreme Court appointment because it ruled that, as a Federal Court of Appeal judge, he did not meet the Supreme Court Act’s eligibility requirement that the court’s three Quebec seats must be filled by current members of the bar or superior courts of Quebec.

Justice Rothstein, who recused himself from that appeal, wouldn’t comment on the decision’s merits. But he said his ex-colleague “absolutely” is of a professional calibre worthy of the Supreme Court.

“I think there was great unfairness to Justice Nadon, in his personal capacity, from some of the comments that had been made…in the press,” he said. “As far as I’m concerned, he’s a very, very able judge. He’s a scholar. He’s a good writer. He carried his weight in the [Federal Court of Appeal] at all times, and I think he got a bum rap.”

Asked about his own highs and lows, Justice Rothstein said “the high point is if you circulate a judgment and you get judges to agree with it, who might not have agreed with it at the court conference [right after an appeal is heard]. And by the same token, sometimes you write a judgment, you think you’re in the majority, and you suddenly find that the judges are abandoning you, and you find yourself in dissent — and that’s not a great feeling.”

Mostly, though, he said his satisfaction has come from “sitting in court, and hearing the lawyers argue, and asking questions, and getting answers, and trying to figure out the case,” including his own areas of special interest in IP, tax, judicial review and regulatory issues.

For Justice Rothstein, “if you feel that you’ve written a coherent judgment that you’ve worked on, and that you feel confident about, there is quite a bit of satisfaction from writing that judgment…creating a piece of work that is credible, and hopefully will stand the test of time.”

Asked how he would like to be remembered, he said, “just as a decent, hardworking judge who tried to do the kind of work that is assigned to us in a competent and credible way.”