Supreme Court faces fourth vacancy in two years
The nine-member Supreme Court of Canada is in high transition with the announcement Friday of its fourth vacancy in little more than two years.
Justice Marshall Rothstein of Manitoba, a strong-minded conservative with a spirited independent voice, is to retire at the end of the spring session. His departure takes effect Aug. 31, four months before his 75th birthday and mandatory retirement date.
Rothstein will have been a judge for 23 years, nine on the Supreme Court where he is noted for his expertise in administrative and commercial law.
“I am grateful for this privilege and mindful of the honour and public trust that attach to the holding of judicial office in Canada,” he said in a statement released by the court.
Rothstein gave no reason for his somewhat early departure. The end of the spring session my simply be an opportune time.
Still, some of Rothstein’s recent opinions suggest a judge troubled by what some consider to be creeping judicial activism by the top court.
Chief Justice Beverley McLachlin, who is next to retire in 2018, said Rothstein has served on the court “with distinction, and made enormous contributions to the Court and to Canada.”
Prime Minister Stephen Harper thanked him for “his decades of distinguished service to the Canadian judiciary.”
By convention, the seat to be vacated rotates between the Prairie provinces. Early speculation favours candidates from Saskatchewan, which hasn’t had a judge on the court since the 1973 retirement of Justice Emmett Hall, one of the most respected judges in the court’s history.
“Saskatchewan would lay a strong claim to the next judge and there’s certainly no shortage of legal talent at the Saskatchewan Court of Appeal and within the Saskatchewan legal profession,” said Adam Dodek, a Supreme Court scholar and law professor at the University of Ottawa.
The court’s high turnover since 2012 is due to nothing more than demographics and judges hitting the mandatory retirement age, he said. But it has put the bench into a period of transition.
“You’ll essentially have half of the court being new within two years and that means a new court, a new identity, possibly a new direction.”
Some jittery legal observers on social media are already girding for the possibility Harper might name Vic Toews, the former tough-talking Conservative justice minister and now a Court of Queen’s Bench trial judge in Manitoba.
In office, Toews made no bones about what he thought about the “legal and constitutional anarchy” of judicial activism.
Less than a year after retiring from politics, the government appointed Toews to Manitoba’s top trial court a year ago, making him eligible for a future Supreme Court posting.
Since 2011, the Supreme Court has handed the Conservative government seven stinging legal defeats over its policies and arguments. Harper has lashed out, exasperated by the ideological divide between his government and the justices, seven of whom he appointed.
With a federal election looming, this could possibly be his last chance — or parting shot — to affect the court.
Dodek scoffs at talk of a Toews appointment. “It’s just not Manitoba’s turn. It would be a real affront to the people of Saskatchewan, first of all, before you even get into the politics of the partisan question to it.”
A Justice Department spokeswoman said the government will “act promptly to ensure the Supreme Court has a full complement of judges.”
Clarissa Lamb suggested the government will forgo the one-time practice of having Supreme Court appointees go before a televised parliamentary review committee and introduce themselves to the nation.
“We will consult broadly with prominent members of the legal community and the provinces,” she said in a statement. “The final decision is and has always been for the executive branch of government.”
The review by MPs, introduced by the previous Liberal government, was the final bit of openness remaining in the secret process of selecting nine of the most important people in the country.
The last appointee to be gently vetted by parliamentarians was Rothstein, who previously sat for 13 years on the Federal Court of Appeal.
Dodek doesn’t buy speculation that Rothstein may be leaving because of a widening ideological rift with his fellow justices. “It would be different if he were leaving two years earlier,” he observed.
As one of three dissenting judges in this month’s 6-3 court judgment striking down as unconstitutional mandatory-minimum sentencing, Rothstein joined in an uncharacteristically harsh critique of the majority decision authored by McLachlin.
“Parliament’s choice to raise the mandatory minimums … reflects valid and pressing objectives, and it is not for this court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.”
He said much the same in dissenting opinions in two January labour-relations cases: “Courts must … respect the role of the democratically elected legislature and its policy choices,” he wrote.