Marshall Rothstein
Encyclopedia
Marshall Rothstein, QC
, B.Comm
, LLB
(born December 25, 1940) is a Puisne Justice
of the Supreme Court of Canada
.
(Manitoba
) to Jewish parents who immigrated from Eastern Europe
, he received a Bachelor of Commerce in 1962 and an LL.B. in 1966 from the University of Manitoba
. While at the University of Manitoba, he was a member of Sigma Alpha Mu
fraternity. He was called to the Bar of Manitoba in 1966. Also in 1966, he married Sheila Dorfman, a Montreal doctor. They have four children: Ronald, Douglas, Tracey and Robert.
. In 1999, he was appointed a Judge of the Federal Court of Canada
, Appeal Division.
He wrote 578 judgments for the Federal Court and 324 judgments for the Federal Court of Appeal.
and Constance Hunt
) recommended by a committee convened by the outgoing Liberal government to be appointed to the Supreme Court of Canada
, following John C. Major
's retirement from the bench in early 2006. Prime Minister
Stephen Harper
chose Rothstein for the Governor General to appoint to the top court.
Rothstein's appointment by the Conservative government was criticized because of his unilingualism. He was the only justice of the Supreme Court who was not bilingual, prior to the 2011 appointment of Justice Michael Moldaver
.
Many Canadian conservatives had long been critical of the process of appointing judges to the Supreme Court of Canada, wherein the Prime Minister is the sole advisor of the Governor General in the matter, and though he or she consults legal experts, no input is given from other (especially opposition) politicians. Conservative Leader Stephen Harper had thus made a promise to "reform" the appointment process during previous elections.
Shortly after Prime Minister Harper put Rothstein's name forward, Harper acted on his promise to create an Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada, a new creation intended to allow the nominee to face questioning by members of the Canadian Parliament
, similar in spirit to the Senate judicial hearings that occur as part of the Supreme Court appointment process in the United States. The Panel was chaired by constitutional law professor Peter Hogg
.
The new procedures replaced a reformed appointment process introduced by the previous Liberal government, but which had not yet been applied.
The panel was controversial. Many conservative critics argued it did not go nearly far enough, while many liberal critics argued it went too far. Harper made it clear that while the ad hoc committee would be able to question the nominee, it did not have the power to veto
the nominee - unlike the American panels which had the power to do both. Furthermore, the MPs on the panel were asked to refrain from asking about Rothstein's personal opinions on moral issues or subjects of possible future rulings. One matter relating to Rothstein's judicial philosophy did emerge from the hearings, however. Though his name was drawn from a short list whose compilation had been led by the previous Liberal administration, Rothstein was generally considered to be the most conservative of the three nominees with respect to the role he believed judges play in the political system. The hearing lent support to that view: when asked about his judicial philosophy, Rothstein stated he did not support unabashed judicial activism
, saying the courts must be "very careful" when making rulings that overturn law made by parliament.
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, B.Comm
Bachelor of Commerce
A Bachelor of Commerce is an undergraduate degree in commerce and related subjects. The degree is also known as the Bachelor of Commerce and Administration, or BCA...
, LLB
Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...
(born December 25, 1940) is a Puisne Justice
Puisne Justice
A Puisne Justice or Puisne Judge is the title for a regular member of a Court. This is distinguished from the head of the Court who is known as the Chief Justice or Chief Judge. The term is used almost exclusively in common law jurisdictions such as England, Australia, Kenya, Canada, Sri Lanka,...
of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
.
Early life
Born in WinnipegWinnipeg
Winnipeg is the capital and largest city of Manitoba, Canada, and is the primary municipality of the Winnipeg Capital Region, with more than half of Manitoba's population. It is located near the longitudinal centre of North America, at the confluence of the Red and Assiniboine Rivers .The name...
(Manitoba
Manitoba
Manitoba is a Canadian prairie province with an area of . The province has over 110,000 lakes and has a largely continental climate because of its flat topography. Agriculture, mostly concentrated in the fertile southern and western parts of the province, is vital to the province's economy; other...
) to Jewish parents who immigrated from Eastern Europe
Eastern Europe
Eastern Europe is the eastern part of Europe. The term has widely disparate geopolitical, geographical, cultural and socioeconomic readings, which makes it highly context-dependent and even volatile, and there are "almost as many definitions of Eastern Europe as there are scholars of the region"...
, he received a Bachelor of Commerce in 1962 and an LL.B. in 1966 from the University of Manitoba
University of Manitoba
The University of Manitoba , in Winnipeg, Manitoba, Canada, is the largest university in the province of Manitoba. It is Manitoba's most comprehensive and only research-intensive post-secondary educational institution. It was founded in 1877, making it Western Canada’s first university. It placed...
. While at the University of Manitoba, he was a member of Sigma Alpha Mu
Sigma Alpha Mu
Sigma Alpha Mu , also known as "Sammy", is a college fraternity founded at the City College of New York in 1909. Originally only for Jewish men, Sigma Alpha Mu remained so until 1953, when members from all backgrounds were accepted. Originally headquartered in New York, Sigma Alpha Mu has...
fraternity. He was called to the Bar of Manitoba in 1966. Also in 1966, he married Sheila Dorfman, a Montreal doctor. They have four children: Ronald, Douglas, Tracey and Robert.
Career
Marshall Rothstein practiced law primarily in the fields of transportation and competition law and was a partner with the Winnipeg law firm of Aikins, MacAulay & Thorvaldson. From 1970 to 1992, he was a lecturer in transportation law at the University of Manitoba. In 1992, he was appointed to the Federal Court Trial Division, ex officio of the Court of Appeal, and appointed to the Court Martial Appeal Court of CanadaCourt Martial Appeal Court of Canada
The Court Martial Appeal Court of Canada hears appeals from military courts .In Canada, courts martial are presided over by independent military judges from the office of the Chief Military Judge...
. In 1999, he was appointed a Judge of the Federal Court of Canada
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
, Appeal Division.
He wrote 578 judgments for the Federal Court and 324 judgments for the Federal Court of Appeal.
Appointment
Rothstein was candidates (the others being Peter MacKinnonPeter MacKinnon
R. Peter MacKinnon, QC, LL.M is a Canadian lawyer, legal academic and the current President of the University of Saskatchewan.-Biography:...
and Constance Hunt
Constance Hunt
Constance Darlene Hunt is a Canadian lawyer, legal academic, and judge.Born in Yorkton, Saskatchewan, she received a Bachelor of Arts degree in 1970 and a Bachelor of Law degree in 1972 from the University of Saskatchewan...
) recommended by a committee convened by the outgoing Liberal government to be appointed to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, following John C. Major
John C. Major
John Charles "Jack" Major, CC, QC is a Canadian jurist and was a puisne justice on the Supreme Court of Canada from 1992 to 2005....
's retirement from the bench in early 2006. Prime Minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
chose Rothstein for the Governor General to appoint to the top court.
Rothstein's appointment by the Conservative government was criticized because of his unilingualism. He was the only justice of the Supreme Court who was not bilingual, prior to the 2011 appointment of Justice Michael Moldaver
Michael J. Moldaver
-Education and Early Career:A native of Peterborough, Ontario, Justice Moldaver earned a B.A. from the University of Toronto, before completing his legal training at the school's Faculty of Law, where he graduated in 1971 as a Gold Medalist. He was called to the Bar of Ontario in 1973...
.
Many Canadian conservatives had long been critical of the process of appointing judges to the Supreme Court of Canada, wherein the Prime Minister is the sole advisor of the Governor General in the matter, and though he or she consults legal experts, no input is given from other (especially opposition) politicians. Conservative Leader Stephen Harper had thus made a promise to "reform" the appointment process during previous elections.
Shortly after Prime Minister Harper put Rothstein's name forward, Harper acted on his promise to create an Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada, a new creation intended to allow the nominee to face questioning by members of the Canadian Parliament
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
, similar in spirit to the Senate judicial hearings that occur as part of the Supreme Court appointment process in the United States. The Panel was chaired by constitutional law professor Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
.
The new procedures replaced a reformed appointment process introduced by the previous Liberal government, but which had not yet been applied.
The panel was controversial. Many conservative critics argued it did not go nearly far enough, while many liberal critics argued it went too far. Harper made it clear that while the ad hoc committee would be able to question the nominee, it did not have the power to veto
Veto
A veto, Latin for "I forbid", is the power of an officer of the state to unilaterally stop an official action, especially enactment of a piece of legislation...
the nominee - unlike the American panels which had the power to do both. Furthermore, the MPs on the panel were asked to refrain from asking about Rothstein's personal opinions on moral issues or subjects of possible future rulings. One matter relating to Rothstein's judicial philosophy did emerge from the hearings, however. Though his name was drawn from a short list whose compilation had been led by the previous Liberal administration, Rothstein was generally considered to be the most conservative of the three nominees with respect to the role he believed judges play in the political system. The hearing lent support to that view: when asked about his judicial philosophy, Rothstein stated he did not support unabashed judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...
, saying the courts must be "very careful" when making rulings that overturn law made by parliament.