Supreme Court Justice Rothstein Visits Queen’s Law
On Wednesday, February 25, Supreme Court Justice Marshall Rothstein visited Queen’s Law to address assembled faculty and students.
Justice Rothstein delighted those in attendance with humorous anecdotes, sage advice, and candid reflections on his experiences as an adjudicator and a judge.
Prior to his appointment to the bench, Justice Rothstein practiced primarily in the fields of transportation and competition law. He recalled his first experiences hearing cases—on the Board of Adjudication of Manitoba. Working as an adjudicator, Justice Rothstein said he learned that the decision-maker’s objective is to understand the case before him.
In 1992, Justice Rothstein was appointed to the Federal Court, beginning his more than two decades serving on the bench. He began his judicial career with the prominent case of The Information Commissioner of Canada v the Prime Minister of Canada. In this case, Justice Rothstein found against the government that had just appointed him, forcing it to disclose hundreds of pages of documents.
On his time on the Federal Court, Justice Rothstein felt that he had become more reserved: “When we first become judges we want to do justice so we bend the rules a little … then we get kicked around by the Court of Appeal or even the Supreme Court.”
In 1999, Justice Rothstein was elevated to the Federal Court of Appeal. In his time on the Court of Appeal, a rather embarrassing incident led him to develop certain rules, including: “don’t make legal points in oral reasons,” and “reasons for judgement should almost always be based on arguments of the parties.” However, as Justice Rothstein himself admitted, he didn’t always follow his own rules, treating them more as guidelines.
Finally, in 2006, Justice Rothstein was appointed to the Supreme Court of Canada to replace the retiring Justice Major. He emphasized the importance of evidence in decision-making. Of the controversial decisions in Bedford and in Carter, Justice Rothstein said the decisions were “based on the evidence adduced by the parties.”
Justice Rothstein also emphasized the role of judges as neutral arbitrators: “Whatever side a judge is on, it is his or her appreciation of the law and the evidence.”
In addition to candid reflections on his career as a judge, Justice Rothstein added several humorous moments. Discussing a mooting exercise he presided over at University College London between Lord Hoffmann and Sir Robin Jacob (leading intellectual property law experts), he asked his wife, Sheila, whether in her wildest dreams she would picture such an opportunity. She replied, “Marshall, you aren’t in my wildest dreams.”
After his prepared remarks, Justice Rothstein took questions from faculty and students. Asked about the cases where judges claim to be upholding precedent, but are in fact reversing it, he emphasized the role of judges as “guardians of the predictability and stability of the law.”
In a particularly candid moment, Justice Rothstein expressed his concern with Charter values, noting their lack of conceptual clarity. He also expressed his concern with reference decisions, saying, “the court needs facts.”
In addition to delivering a public lecture during his visit to Queen’s Law, Justice Rothstein also conducted a “fireside chat” with a small group of students and a faculty seminar.
Michael Scott (second-year MPA/JD) is a News Editor for Juris Diction.