|The Honourable Mr. Justice
Marshall E. Rothstein
|Puisne Justice of the Supreme Court of Canada|
March 1, 2006
|Nominated by||Stephen Harper|
|Preceded by||John C. Major|
December 25, 1940 |
Born in Winnipeg, Manitoba to Jewish parents who immigrated from Eastern Europe, he received a Bachelor of Commerce in 1962 and an LL.B. in 1966 from the University of Manitoba. He was called to the Bar of Manitoba in 1966. Also in 1966, he married Sheila Dorfman, a Montreal doctor. They have four children: Ronald, Douglas, Tracey and Robert.
Marshall Rothstein practiced law primarily in the fields of transportation and competition law and was a partner with the Winnipeg law firm of Aikins, MacAulay & Thorvaldson. From 1970 to 1992, he was a lecturer in transportation law at the University of Manitoba. In 1992, he was appointed to the Federal Court Trial Division, ex officio of the Court of Appeal, and appointed to the Court Martial Appeal Court of Canada. In 1999, he was appointed a Judge of the Federal Court of Canada, Appeal Division.
He wrote 578 judgments for the Federal Court and 324 judgments for the Federal Court of Appeal.
Rothstein was one of the candidates (the others being Peter MacKinnon and Constance Hunt) recommended by a committee convened by the outgoing Liberal government to be appointed to the Supreme Court of Canada, following John C. Major's retirement from the bench in early 2006. Prime Minister Stephen Harper chose Rothstein for the Governor General to appoint to the top court.
Rothstein's appointment by the Conservative government was criticized because of his unilingualism. He was the only justice of the Supreme Court who was not bilingual, prior to the 2011 appointment of Justice Michael Moldaver.
Many Canadian conservatives had long been critical of the process of appointing judges to the Supreme Court of Canada, wherein the Prime Minister is the sole advisor of the Governor General in the matter, and though he or she consults legal experts, no input is given from other (especially opposition) politicians. Conservative Leader Stephen Harper had thus made a promise to "reform" the appointment process during previous elections.
Shortly after Prime Minister Harper put Rothstein's name forward, Harper acted on his promise to create an Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada, a new creation intended to allow the nominee to face questioning by members of the Canadian Parliament, similar in spirit to the Senate judicial hearings that occur as part of the Supreme Court appointment process in the United States. The Panel was chaired by constitutional law professor Peter Hogg.
The new procedures replaced a reformed appointment process introduced by the previous Liberal government, but which had not yet been applied.
The panel was controversial. Many conservative critics argued it did not go nearly far enough, while many liberal critics argued it went too far. Harper made it clear that while the ad hoc committee would be able to question the nominee, it did not have the power to veto the nominee - unlike the American panels which had the power to do both. Furthermore, the MPs on the panel were asked to refrain from asking about Rothstein's personal opinions on moral issues or subjects of possible future rulings. One matter relating to Rothstein's judicial philosophy did emerge from the hearings, however. Though his name was drawn from a short list whose compilation had been led by the previous Liberal administration, Rothstein was generally considered to be the most conservative of the three nominees with respect to the role he believed judges play in the political system. The hearing lent support to that view: when asked about his judicial philosophy, Rothstein stated "I'm not sure that I would be comfortable thinking that judges should be advancing the law with a social agenda in mind. It seems to me that the social agenda is the agenda for Parliament and if Parliament wants to advance the law in social terms, that's their job." 
- Supreme Court of Canada biography
- Video of confirmation hearing
- "Canadian Who's Who 1997". Retrieved February 22, 2006.
- "Court Martial Appeal Court of Canada biography". Retrieved February 22, 2006.
- List of cases decided by Rothstein
- Treatment of Rothstein's decisions by SCC
- PMO's official announcement