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 highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to ...

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 ...

Manitoba , image_map = Manitoba in Canada 2.svg , map_alt = Map showing Manitoba's location in the centre of Southern Canada , Label_map = yes , coordinates = , capital = Win ...

, to

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parents who immigrated from

Eastern Europe Eastern Europe is a subregion of the 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 Russia, wh ...

, he received a

Bachelor of Commerce A Bachelor of Commerce (abbreviated BComm or BCom; also, ''baccalaureates commercii'') is an undergraduate degree in business, usually awarded in Canada, Australia, India, Sri Lanka, Pakistan, Ireland, New Zealand, Ghana, South Africa, M ...

in 1962 and an LL.B. in 1966 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.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 appointed him to the Federal Court Trial Division and in 1999 was elevated to the

Federal Court of Appeal The Federal Court of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters. History Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "ad ...

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 c ...

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 ...

David Johnston David Lloyd Johnston (born June 28, 1941) is a Canadian academic, author, and statesman who served from 2010 to 2017 as Governor General of Canada, the 28th since Canadian Confederation. He is the commissioner of the Leaders' Debates Commi ...

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 and Constance Hunt) recommended by a committee convened by the outgoing Liberal government to be appointed to the

, following John C. Major'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 ...

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 The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...

, 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 Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court juris ...

. 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.

References

External links

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Video of confirmation hearing
* *
List of cases decided by Rothstein

Treatment of Rothstein's decisions by SCC

PMO's official announcement

Sam.org
{{DEFAULTSORT:Rothstein, Marshall 1940 births Justices of the Supreme Court of Canada Lawyers in Manitoba University of Manitoba alumni People from Winnipeg Canadian King's Counsel Living people Judges of the Federal Court of Canada Robson Hall alumni Judges of the Court Martial Appeal Court of Canada Companions of the Order of Canada