Promising appointment to the Supreme Court

The Interim
April 2006
By Rory Leishman

Judging from the reputation of Mr. Justice Marshall Rothstein and the answers he gave to the questions put to him in the unprecedented public hearing that preceded his appointment to the Supreme Court of Canada, he should make an excellent addition to the country’s top court.
Asked by Conservative MP Diane Ablonczy to state his views on the proper role of judges in a democracy, Rothstein responded: “They should apply the law. They shouldn't depart from the law. They shouldn't be inventing their own laws. They should use common sense and they should use discretion. Those are all aspects of judicial temperament that I think are appropriate."
Quite so, but is that the temperament of most of Rothstein’s colleagues in the appellate courts of Canada? Definitely not. Led by judicial activists on the Supreme Court of Canada, they have chosen time and again over the past 20 years not to apply established laws, but to invent and impose new laws of their own devising.
If Rothstein means what he plainly says, he could not support the arbitrary 2003 ruling of the Ontario Court of Appeal in Halpern that imposed same-sex marriage on Canadians. Neither could he endorse the no-less-arbitrary and unanimous ruling of the Supreme Court of Canada in the Reference re Same-Sex Marriage, 2004 SCC, which upheld the constitutional validity of same-sex marriage. Rather, as a restrained judge, he would be bound to uphold the traditional definition of marriage as entrenched in section 91(26) of the Constitution of Canada Act, 1867; namely, the voluntary union for life of one man and one woman to the exclusion of all others.
Prior to enactment of the Canadian Charter of Rights and Freedoms in 1982, the great majority of judges on the Supreme Court of Canada habitually exercised judicial restraint. Instead of changing the law through interpretation, they undertook to uphold the laws and the Constitution as originally enacted and understood.
The Court should have taken this same approach to interpretation of the Charter. As it is, with no support in either the language or the history of the Charter, Chief Justice Beverley McLachlin and other judicial activists on the Court have invoked the Charter as a pretext for amending or striking down all laws that, in their opinion, violate so-called Charter values.
Rothstein rejects this presumptuous approach to Charter interpretation. He told the review committee that in assessing the compatibility of a statute law with the Charter, judges should remember that "the statute they're dealing with was passed by a democratically elected legislature (and) that it's unlikely that the legislature intended to violate the Charter. Therefore they have to approach the matter with some restraint."
Over the past 20 years, the Supreme Court of Canada has shown no such restraint. In one egregious instance – M. v. H., 1999 SCC – the Court compelled Parliament and the provincial legislatures to amend literally hundreds of family-law statutes so that partners in a same-sex relationship have essentially the same legal benefits and obligations as spouses in a traditional marriage.
In support of this ruling, the Court cited the alleged equality rights of homosexuals in section 15 of the Charter. Yet there is no mention of homosexuals in section 15 or any other provision of the Charter. And as judicial activists well know, the omission was deliberate. During deliberations on the Charter in an all-party committee of Parliament, an amendment to specify equality rights for homosexuals in section 15 was repudiated by a vote of 22 to two.
Rothstein has vowed that not to legislate from the bench, but to do his best to uphold the law and the Constitution. Can he be taken at his word?
Justice Minister Vic Toews thinks so. As a former law student of Rothstein’s at the University of Manitoba, Toews knows the new justice well. Following the hearing of the judicial appointments’ review committee, Toews said: “I’m confident that Justice Rothstein will make an excellent addition to the Supreme Court of Canada.”
The rest of us can only hope and pray that Toews is right, and that Rothstein will have a firm resolve to denounce the lawless usurpation of legislative powers by the majority of his Supreme Court colleagues.