Marshall Rothstein (born December 25, 1940) is a former Puisne Justice of the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
.
Early life
Born in
Winnipeg
Winnipeg () is the capital and largest city of the province of Manitoba in Canada. It is centred on the confluence of the Red and Assiniboine rivers, near the longitudinal centre of North America. , Winnipeg had a city population of 749,6 ...
,
Manitoba
Manitoba ( ) is a Provinces and territories of Canada, province of Canada at the Centre of Canada, longitudinal centre of the country. It is Canada's Population of Canada by province and territory, fifth-most populous province, with a population o ...
, to
Jewish
Jews ( he, יְהוּדִים, , ) or Jewish people are an ethnoreligious group and nation originating from the Israelites Israelite origins and kingdom: "The first act in the long drama of Jewish history is the age of the Israelites""The ...
parents who immigrated from
Eastern Europe
Eastern Europe is a subregion of the Europe, European continent. As a largely ambiguous term, it has a wide range of geopolitical, geographical, ethnic, cultural, and socio-economic connotations. The vast majority of the region is covered by Russ ...
University of Manitoba
The University of Manitoba (U of M, UManitoba, or UM) is a Canadian public research university in the province of Manitoba.University of Manitoba
The University of Manitoba (U of M, UManitoba, or UM) is a Canadian public research university in the province of Manitoba.CPAC public affairs station, Rothstein stated:
"As lawyers, and as judges, we tend to live in a pretty enclosed world. Most people in the world are out there slogging out very, very difficult physical work - sometimes dangerous work. The experience that I had working in the dining car made me realize that there was a different life out there and that as a lawyer I was going to be lucky that I wasn't going to have to work outside, and in inclement weather, or perhaps in dangerous situations, or for that matter in the dining car. In those days we weren't allowed to sit down, if there was even one customer in the dining car, we had to stand all day with short breaks, and I want to make sure that my law clerks or the people I'm working with have some idea about what that life is about."
Upon graduating from the
University of Manitoba
The University of Manitoba (U of M, UManitoba, or UM) is a Canadian public research university in the province of Manitoba.Brian Mulroney
Martin Brian Mulroney ( ; born March 20, 1939) is a Canadian lawyer, businessman, and politician who served as the 18th prime minister of Canada from 1984 to 1993.
Born in the eastern Quebec city of Baie-Comeau, Mulroney studied political sci ...
Ottawa
Ottawa (, ; Canadian French: ) is the capital city of Canada. It is located at the confluence of the Ottawa River and the Rideau River in the southern portion of the province of Ontario. Ottawa borders Gatineau, Quebec, and forms the core ...
. In 2006, he was
Stephen Harper
Stephen Joseph Harper (born April 30, 1959) is a Canadian politician who served as the 22nd prime minister of Canada from 2006 to 2015. Harper is the first and only prime minister to come from the modern-day Conservative Party of Canada, ...
's appointment to the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
and became the first justice to have his appointment publicly scrutinized when he appeared before a parliamentary committee.
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 Canada. 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.
In 2017, he was appointed a Companion of the
Order of Canada
The Order of Canada (french: Ordre du Canada; abbreviated as OC) is a Canadian state order and the second-highest honour for merit in the system of orders, decorations, and medals of Canada, after the Order of Merit.
To coincide with the ...
by
Governor General
Governor-general (plural ''governors-general''), or governor general (plural ''governors general''), is the title of an office-holder. In the context of governors-general and former British colonies, governors-general are appointed as viceroy t ...
David Johnston for "his eminent service as a jurist, notably on the Supreme Court of Canada, and for his dedication to legal education."
Supreme Court
Rothstein was one of the candidates (the others being
Peter MacKinnon
R. Peter MacKinnon, (born 1947) is a Canadian lawyer and legal academic. MacKinnon served as the president of the University of Saskatchewan from 1999 to 2012. On 1 July 2014, he was named as the interim president of Athabasca University.
On 15 ...
and
Constance Hunt
Constance Darlene Hunt (born 11 January 1950) 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
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
, following
John C. Major
John Charles "Jack" Major (born February 20, 1931) is a Canadian jurist and was a puisne justice on the Supreme Court of Canada from 1992 to 2005.
Early life and education
Born in Mattawa, Ontario, Major received a Bachelor of Commerce degree f ...
's retirement from the bench in early 2006.
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister is not ...
Stephen Harper
Stephen Joseph Harper (born April 30, 1959) is a Canadian politician who served as the 22nd prime minister of Canada from 2006 to 2015. Harper is the first and only prime minister to come from the modern-day Conservative Party of Canada, ...
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 Moldaver (born December 23, 1947) is a former Canadian judge. He was a puisne justice on the Supreme Court of Canada from his 2011 appointment by former Prime Minister Stephen Harper until his retirement in 2022. Before his elevation to th ...
.
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
A veto is a legal power to unilaterally stop an official action. In the most typical case, a president or monarch vetoes a bill to stop it from becoming law. In many countries, veto powers are established in the country's constitution. 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 "I'm not sure that I would be comfortable thinking that judges should be advancing the law with a social agenda in mind. It seems to me that the social agenda is the agenda for Parliament and if Parliament wants to advance the law in social terms, that's their job."
Retirement
On April 24, 2015, Rothstein announced his retirement from the Supreme Court, effective August 31, 2015.