Today, Stephen Harper pick for Supreme Court Justice faces a Parliamentary ad-hoc committee and this reflects our Prime Minister’s election promise to bring more transparency and accountiblility to government.
Justice Marshall Rothstein must feel like a student that’s studied his whole life for this final exam. Except this exam isn’t one of those university finals worth 75%-100%, it’s more akin to one taken in high school worth 5%-10%. The Justice is already top of his class and barring some cataclysmic event, he’s already passed.
Enter Joe Comartin, the predicted spoiler of the whole affair. Comartin calls the process “a sham”, because, the reason he gives, is that it does not go far enough.
It really isn’t anything about accountability because obviously we as a committee have no control over this. We’re not even going to make a recommendation, as far as I know. — Joe Comartin, NDP MP
However, we all know that the NDP doesn’t even want to make a recommendation. In fact, they have already decried the entire process dismissing it as “American style”.
Yet, Mr. Comartin has tabled a motion planned to restrict the transparency of the process and may boycott the committee if it isn’t passed. Ladies and gentlemen, that’s what we call “American style filibustering” and being in relative opposition instead of principled opposition.
Indeed, Jack Layton spoke about making Parliament work for the “working Canadians” so one would predict that adding even an ounce (sorry, 28.3 grams) of transparency would be inline with the average working Joe Canadian instead of the legal elitism that Jack now seems to back. Before Stephen Harper, the SCC appointment process was restricted from “working Canadians” and was limited to the Prime Minister and a handful of legal advisors that met behind closed doors. Many people wouldn’t have pegged Layton as an elitist, but perhaps that’s the Toronto NDP in him coming out.
UPDATE: Paul from BBS writes a letter to the editor regarding Joe Comartin’s regressive attitude.
Today Stephen Harper announced that his nominee for the Supreme Court of Canada will be Marshall Rothstein. Rothstein was previously on the Federal Court of Appeal. I really like what Harper is doing with this new transparent process. Most Canadians likely can name more US Supreme Court justices than Canadian Supreme Court justices. This process will take a secretive elite selection process and open it up for all Canadians. This is our court so it’s good that we get to find out what kind of judge Rothstein is.
Here is his CV:
Personal and Education Information
- Born December 25, 1940 in Winnipeg, Manitoba.
- Educated at Winnipeg schools and University of Manitoba. B. Com. 1962, LL.B. 1966.
- Called to the Bar of Manitoba in 1966.
- Married June 12, 1966 to Sheila Dorfman of Montreal, four children, Ronald, Douglas, Tracey and Robert and two grandchildren.
- Associate Thorvaldson, Eggertson, Saunders and Mauro, 1966-1969
- Associate Aikins, MacAulay & Thorvaldson 1969-1972
- partner Aikins, MacAulay & Thorvaldson 1972-1972
- Member and periodic Chairman of Management Committee/Executive Board 1981-1992.
- Appointed Q.C. 1979.
- Practised in the areas of Administrative Law and Litigation, primarily Transportation and Competition Law, Labour and commercial arbitrator.
- Adjudicator, Manitoba Human Rights Act 1978-1983.
- Member, Canadian Human Rights Tribunal 1986-1992.
- Appeared before
- federal and Manitoba Administrative Tribunals
- Manitoba Court of Queen’s Bench
- Court of Appeal, Federal Court of Canada – Trial and Appeal Divisions
- Supreme Court of Canada.
- Lecturer, Transportation Law, University of Manitoba, Faculty of Law 1970-1983, 1988-1992.
- Lecturer, Contract Law, University of Manitoba, Extension Department 1970-1975.
- Bar Admission Course Lecturer, Law Society of Manitoba 1970-1975.
Legal Aid Information
- Secretary (Administrator), Civil Legal Aid Committee, Law Society of Manitoba 1968-1970.
Commissions of Inquiry
- Chairman, Commission on Compulsory Retirement (Manitoba) 1981-1982.
- Chairman, Ministerial Task Force on International Air Policy (Canada) 1990-1991.
Committee Participation Information
- Member, Manitoba Transportation Industry Development Advisory Committee 1985-1987, and Chairman 1987-1990.
- Member, Airports Task Force 1985-1986.
- Member, Airports Transfer Advisory Board 1988-1992.
- Member, External Advisory Committee, University of Manitoba Transport Institute 1989-1992.
- Judge of the Federal Court of Canada, Trial Division and member ex officio Appeal Division June 24, 1992 to January 20, 1999. (Rulings: 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002)
- Appointed Judge of the Court Martial Appeal Court of Canada October 29, 1992. (Rulings)
- Judicial member of the Competition Tribunal May 31, 1993 to January 20, 1999. (Rulings)
- Appointed Judge of the Federal Court of Canada – Appeal Division, January 21, 1999. (Rulings: 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006)
- Appointed Member of Committees and Special Committees (NAFTA) Regulations, November 15, 2004.
NOTE: With the coming into force, on July 2, 2003, of the Courts Administration Service Act, the appeal and trial divisions of the Federal Court of Canada became separate entities known as the Federal Court of Appeal and the Federal Court. At that time, Mr. Justice Rothstein became a judge of the Federal Court of Appeal.
So… the big question remains… what do you think?
UPDATE: In perhaps his most famous ruling:
“In addressing the question of whether the transgenic offspring of a transgenic animal were patentable, Mr. Justice Rothstein noted that most inventions involve some use of the laws of nature. Thus, the mere fact that the laws of nature play a role in the development of the invention does not prevent it from being patentable. In this case, human intervention was needed to create the first transgenic animals. The fact that these animals, once produced, can reproduce to create transgenic off-spring does not render them unpatentable. The off-spring exist due to a human-controlled process (the creation of the first transgenic animals). The fact that nature also plays a role in the creation of transgenic animals does not detract from the key role of human intervention. Thus, transgenic animals and their off-spring now appear to be patentable subject matter in Canada.”
UPDATE: So who is Marshall Rothstein? Well, it looks like he’s our next SCC Justice since the Liberals won’t be able to provide much opposition to his appointment during the ad-hoc committee hearing. Irwin Cotler is the head Liberal on the committee and was the chief drafter of Harper’s shortlist. Furthermore, Rothstein was appointed to the Federal Court by Mulroney’s government and to the Appeals Court by Chretien’s government. Besides, Rothstein’s cadidacy was highly scrutinized by a process that included members of all parties. We know that Rothstein comes with high praise from the Liberal and Conservative parties. Will the NDP and Bloc endorse Rothstein?
If the NDP views the opposition of the candidate as futile, will they oppose the process?
I really think that Stephen Harper is reaching out past the 36% of voters that gave him a minority mandate on January 23rd. Those who know him say that he’s all about the long game and that while he’s a “policy wonk”, he calculates each move.
Ladies and Gentlemen, with this novel approach to appointing the Supreme Court, while Harper is not changing the process constitutionally, he is certainly adding more transparency to the process. This is the same kind of transparency that the Conservatives campaigned on during the brutally long winter election and it’s the same transparency that a recent poll described as the #1 issue of Canadians post-election.
Of course, I assume that our knee-jerk NDP friends will decry that we’re “spiraling towards an American system”. Whether it trends towards an American system, English system, French system or Japanese system, I don’t care because it seems that a system that encourages transparency would be very important to the NDP (especially since they campaigned on “Ed Broadbent’s 7 point plan for saving Parliament and making waffles”)
We’ll see if the NDP wants to “make Parliament work” for “working people” or will we see the NDP resist a change which would take the SCC appointments from a secretive elite process to one that all Canadians can access. If they resist against the process, we’ll know that it’s partisan because it certainly shouldn’t represent their principles. Hopefully we won’t be seeing a lot of NDP motions trying to block this novel transparent process.
The Liberals should be pretty much on board. I saw on clip on CPAC that interviewed the former Justice Minister by phone and he pretty much endorsed the whole process. It’ll be difficult for the Liberals to oppose the process. They aren’t even likely to oppose the nominee either since they drafted the short-list of nominees.
Hopefully this is one step of many where the Prime Minister makes the Parliamentary process (and PMO power) more transparent for all Canadians.
UPDATE: Here is the list of members on the ad-hoc committee:
Vic Toews – chair
Hon. Irwin Cotler
Hon. Stephen Owen