InQueeries

March 2, 2006

By Gilles Marchildon, Executive Director of Egale Canada

Here comes the judge,
let justice accompany him

By the time this column is published, Canada will probably have a new Supreme Court of Canada judge.

Prime Minister Stephen Harper has nominated Justice Marshall Rothstein to sit on the country’s high bench. While picking his nominee from a short-list prepared by the previous administration, Harper also added another step to the process: a hearing by parliamentary committee.

Some observers are concerned this new step might lead to a highly politicized process where Opposition Members of Parliament (MPs) try to embarrass or discredit either the nominated judge or the Prime Minister.

On the other hand, nothing is changing - so far.

A 3-hour hearing on Feb. 27 has not likely derailed Rothstein’s appointment. Despite questions by MPs, it is still the Prime Minister who ultimately makes the appointment.

The 65 year-old Rothstein hails from Winnipeg. Appointed to the Federal Court in 1999 by former Prime Minister Brian Mulroney, former Prime Minister Jean Chrétien elevated him to the Court’s appeal decision in 1992.

While previous decisions might reveal some of Rothstein’s thinking, they are not a script for future rulings. As the Toronto Star recently noted, Rothstein is “an independent thinker who is difficult to typecast.”

On human rights affecting lesbian, gay, bisexual and trans-identified (LGBT) individuals, Rothstein made a 1983 ruling against Manitoba activist and civil servant Chris Vogel. The latter was denied benefits for his partner. Rothstein, in ruling that same-sex couples were not legally entitled to domestic partner benefits, reflected the law of the day.

At the time, Manitoba’s Human Rights Code did not include protection based on sexual orientation - that changed four years after Vogel’s case.

It’s possible Rothstein could have pushed the envelope, saying that the ground of sex also covered sexual orientation. That would have been risky and open to further challenge, though, since the equality provisions of Canada’s Charter of Rights and Freedoms only came into effect in 1985.

Elliot Leven, a Winnipeg labour lawyer who sits as a commissioner on the Manitoba Human Rights Commission, thinks Rothstein “will be progressive on LGBT issues.”

Leven points to a December 1978 ruling by Rothstein. “Long before he was a judge, he was a Manitoba Human Rights Adjudicator. In a case called Froese versus the Pine Creek School Division, Rothstein wrote a very progressive decision on human rights - giving a teacher who belonged to (a particular church) the right to take unpaid leave on religious holidays. It was pretty progressive for 1978.”

The Supreme Court begins its spring session in April. It’s possible the Court will never have to rule on equal marriage of same-sex couples, depending on how the current Parliament deals with the proposal to reopen the issue.

Still, the Court will be dealing with issues of concern to the LGBT community, including the Little Sisters censorship case and the Hislop case on benefits to surviving same-sex partners.

It is important to know who is being considered for Canada’s highest court and to speak out to ensure their nomination is free from political bias.

Egale Canada ©2010

Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada