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Rothstein – 10 Things He Brings

Each appointment to the court brings an entire lifetime of experience, a life in the law culminating in the purest sort of legal thought in our system, the disinterested consideration of the concrete case, in an intensely collaborative sphere, where articulating positions that persuade colleagues becomes very important. The court itself shapes the roles its judges play. Yet Justice Rothstein will have the chance to put his unique touch on the fabric of Canadian law. What can we tell from his background, and experience about what he will bring to the court.

We have identified ten elements in which Justice Rothstein stands out:

  1. Federal Court experience. What does this mean in practice? Well, he is comfortable in the complicated norm-rich world of federal administrative tribunals so his appointment enhances the court’s strength on judicial review matters. We can only hope that he can help bring order to the unnecessarily Byzantine law of the standards of judicial review. We also note that his is only the third appointment to the SCC in the 35 year history of the Federal Court. His predecessors – Justices Gerald Le Dain and Frank Iacobucci.
  2. Tax experience. This is a difficult area of the law and one in which one member of the court generally takes the lead. For many years Justice Bud Estey had this role. But the SCC’s experience in the area has been lacking since the retirement of Justice Frank Iacobucci. This is a plus for an appointment from the Federal Court where there is the sort of tax docket to build up familiarity.
  3. Intellectual property is another major component of the Federal Court’s workload. Expect Justice Rothstein to bolster Justice Binnie’s experience as an advocate in the areas of patents, trade marks and copyright. His work on the Harvard Mouse case is a harbinger. ([2000] 4 F.C. 528 ; subsequently narrowly overturned by the Supreme Court in [2002] 4 S.C.R. 45; 2002 SCC 76 )
  4. Transportation experience – quite notable in the biographies that he has done hard thinking in this area. We can’t recall anyone having experience in this area on the court.
  5. What doesn’t the Federal Court do? Well, with the notable exceptions of competition and antitrust, the court is light on Criminal Law and thus on the Charter of Rights issues that are brought up in major criminal cases. But on the other side, Justice Rothstein has a greater depth of learning on Competition and Antitrust than anyone in recent memory.
  6. Personal background – Winnipeg upbringing. Jewish – which would have been much more worthy of comment twenty years ago. Now he joins Justices Fish and Abella. But faith is a much less significant factor with the Canadian as opposed to the American Supreme Court.
  7. Clarity of legal language – he has taught the Advocates’ Society Advanced Written Advocacy programme. Henry Brown, Ottawa lawyer, reportedly says of Justice Rothstein’s decision-writing: “Often he would have a turn of phrase that would just illuminate a case. You just had to smile when you read it, not flippant or frivolous in any way, just an incisive clarity with a bite.” (Canadian Press, February 23, 2006)
  8. Unilingual Anglophone – while The Globe and Mail identified this as a concern, the Québéc media and the Bloc Québécois seem, for now, willing to overlook this faux pas. Instead, they are focusing on the change in the judge selection process and are supporting this newer, transparent process.
  9. Non-partisan – not obviously tied to any political party. He was named to the Federal Court Trial Division in 1992 by the Mulroney Conservative government. In 1999 the Chrétien Liberal government moved him up to the Federal Court of Appeal. He was on the short list that former Liberal justice minister Irwin Cotler had compiled just before the Federal election on January 23, 2006. NDP Justice critic Joe Comartin has spoken favourably of Justice Rothstein as Supreme Court candidate.
  10. Personality – A self-deprecating sense of humour. Willing to debate ideas – though not in a flashy way, he is not one for rhetoric or hyperbole. Older than the average judge on the court, and with mandatory retirement under the Canadian system kicking in at 75, he has a decade to make his mark.