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No Gay Marriage Questions For Canadian Supreme Court Nominee


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No Gay Marriage Questions For Canadian Supreme Court Nominee

by The Canadian Press

February 27, 2006 - 7:00 pm ET

(Ottawa) The man set to become Canada's newest Supreme Court justice says he agrees that judges should apply the law rather than make it, easing concerns by some - especially Conservatives - about so-called judicial activism.

But Marshall Rothstein also says there are times when courts are forced to decide whether a law violates the Charter of Rights - and that's acceptable, provided they do a proper analysis and respect lawmakers.

Rothstein, the first Supreme Court nominee to face questions from a committee of MPs, said Monday that judges must be very careful when they approach controversial laws.

He said there are sometimes difficult cases where the court must decide ``to what extent does the law impair the Charter right; to what extent should there be deference to the legislature.''

``The difficulty is that it involves line-drawing sometimes and that sometimes takes us into an area that's ... close to policy-making.''

``The important thing is that judges, when applying the Charter, have to have recognition that the statute that they're dealing with was passed by a democratically elected legislature, that it's unlikely that the legislature intended to violate the Charter ... and therefore they have to approach the matter with some restraint.

``But the most important thing is that they apply a rigorous and thorough analysis and if they do that then I'd say that they're doing their job. If they depart from that, it might be a different matter.''

Prime Minister Stephen Harper has spoken about his concern about ``judicial temperament'' - the degree to which a judge is prepared to apply the law rather than make it. It's better known as ``judicial activism,'' a pet peeve of many Conservatives for years.

Rothstein, 65, opened the hearing by telling a story of how working as a waiter on a railway dining car taught him about life.

He had the summer job on the CPR line between Vancouver and his native Winnipeg while attending university.

``I often say that I learned more about life working in the dining car than anywhere else,'' Rothstein said.

``Working for 36 to 48 hours at stretch in close quarters with nine or 10 other people, from different backgrounds, different education levels, different prejudices, is not always easy.

``You had to be flexible and accommodating or you couldn't survive. You had to be scrupulously honest about pooling your tips or you couldn't survive. It was long days on your feet; it was hard physical work.''

Rothstein, a veteran of the Federal Court renowned for his command of commercial law, said he's always looked for ``hard physical work'' when screening applications from potential law clerks.

He said he does this ``so they will appreciate what I have come to appreciate: the diversity of our population, how hard Canadians have to work to make ends meet and something of what it's like not to have the advantages they will have as a lawyer.''

Canada, he said in response to questions, is a bilingual and ``bijural country - and that is one of the great strengths of the country,'' referring to Quebec's separate system of civil law.

So is the fact that it is diverse, a ``country of immigrants'' like his parents, who came to Canada from Poland and Russia before the First World War, he added.

Those strengths have also made Canada a tolerant country, said Rothstein, who does not speak French.

Justice Minister Vic Toews opened what he called ``historic'' hearings into Rothstein's nomination by calling on fellow MPs to exercise discretion with their questions.

Ultimately, he said, Rothstein would be the one to decide whether the questions put to him by the unprecedented 12-member committee are suitable.

``In this particular case, the witness - in fact, the nominee - is in a very unusual situation,'' Toews said before more than three hours of questions were to begin.

``As a witness, he will nevertheless determine and have the final say on the propriety of questions that will be asked. I think this is necessary, given the central, independent nature of the judiciary in this country and that we, as parliamentarians, must respect that independence.''

While some contentious questions may be asked, he added, answers ``may not be given in full, or at all.''

It is the first time members of Parliament have questioned a nominee to the Supreme Court of Canada in a public forum, though they do not have veto power.

In a statement before questioning began, constitutional expert Peter Hogg told the committee that Rothstein could not explain his past rulings nor express his opinions on controversial issues such as abortion, same-sex marriage or the secession of Quebec from Canada.

``Those issues could come to the court for decision in some factual context or other and any public statements by Justice Rothstein about those issues might give the false impression that he had a settled view on how to decide the case,'' Hogg said.

It didn't take long before Rothstein exercised his right.

Bloc Quebecois MP Real Menard asked him whether he felt the gun registry was working. Rothstein said the registry is a political animal.

``I know that the question of the gun registry is a controversial one and I must say that I think it's really a political question, a question of policy,'' Rothstein said.

``I don't mind the question. It's just that you must understand, that's not my area, that's your area to determine those policies. If disputes are brought to a court, then that's when we get involved.''

Rothstein was chosen by Harper as a candidate for the high court last week from a short list of three people agreed to under a process started by the former Liberal government.

The committee will not decide whether he can sit on the high court - that's Harper's prerogative.

Rothstein is to replace Justice John Major, who retired in December.

©365Gay.com 2006


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