Rothstein faces questions from MPs

A Supreme Court nominee has said judges should apply laws rather than make them, as a panel of legislators publicly questioned a judicial candidate for the first time in Canada.

A Supreme Court nominee has said judges should apply laws rather than make them, as a panel of legislators publicly questioned a judicial candidate for the first time in Canada.

But Marshall Rothstein also noted that judges sometimes must rule on whether a law violates the Charter of Rights and thereby determine public policy to an extent.

Rothstein, who was nominated a week earlier to the Supreme Court of Canada, made a three-hour appearance Monday afternoon before an ad hoc all-party parliamentary committee in Ottawa.

Rothstein – who was appointed to the Federal Court in 1992 by then prime minister Brian Mulroney and elevated to the Federal Court of Appeal by Jean Chrétien – said judges must decide whether laws conform to the Charter but are "not the law unto themselves."

Prime Minister Stephen Harper and other Conservatives have long expressed concern about the power that judges have wielded over public policy since the Charter's creation.

Rothstein, 65, told the parliamentary committee on Monday that judges must tread lightly while dealing with controversial laws. But he also said it was appropriate for them to handle such rulings if they conduct a thorough analysis and respect lawmakers.

"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 ... and therefore they have to approach the matter with some restraint."

MPs question public scrutiny of judicial appointees

Another issue that attracted a lot of attention during Monday's session was the process itself. Confirmation hearings for judges are routine in the U.S., but Harper's Tories spurred controversy when they said they would put the judicial nominee in the public hot seat.

Supporters argued it was appropriate to have a more transparent judicial selection process. Critics had expressed fear that the session could become a circus, like some U.S. proceedings that politicians have used to score points over controversial subjects such as abortion.

Despite the concerns, Monday's session remained very civil and none of the MPs questioned the ability of Rothstein.

Some of them criticized the public scrutiny but Rothstein sidestepped their questions by suggesting it might be too soon to assess it.

"I understand the argument that the argument in favour of this process is greater transparency in the judicial process ... and I have no fear in saying that that's a good thing," Rothstein said.

"The fear is that we could degenerate the process into a process that degrades or humiliates the judge, as has been seen sometimes elsewhere."

Controversial subjects declared off-limits

The session kicked off with statements by the co-chairs, Justice Minister Vic Toews and former Osgoode Hall Law School dean Peter Hogg, a constitutional expert who is not a member of Parliament.

Rothstein followed with a 20-minute statement, then the MPs were each given time to ask questions.

Rothstein took a pass on controversial subjects such as abortion, same-sex marriage, Quebec separatism and aboriginal rights.

"He cannot express views on issues that could come before the court," Hogg had warned earlier. "For the same reason, he cannot tell you his views on controversial issues such as abortion, same-sex marriage or secession."

Rothstein praised for 'prolific' judicial writings

Toews described Rothstein, a well-connected Tory from Manitoba, as a "highly respected" judge who is "prolific" in his output of judicial writing.

Rothstein thanked Harper for selecting him to replace Justice John Major, who retired in December.

He also outlined his vision of a judge's role.

"It goes without saying that judges must be neutral arbitrators in disputes that come before them. They can have no personal agenda and they must be independent."

Rothstein was included on a short list prepared for the former Liberal government by members of the parties in 2005.

The MPs in Monday's session do not have veto power over Rothstein's nomination.

Harper was expected to make a final decision to approve or quash Rothstein's nomination within days.