February 27, 2006
Peter W. Hogg, C.C., Q.C

Check against delivery

Introduction

Good afternoon, ladies and gentlemen. My name is Peter Hogg. I am a constitutional lawyer, and it is my role to make some opening remarks to the Committee, and provide some guidance for your proceeding.

This is an historic moment. It is the first time that a Government nominee for appointment to the Supreme Court of Canada has been interviewed in public by a committee composed of Members of Parliament. The purpose of this new process is to make appointments to the Court more open, and to promote public knowledge of the judges of the Court.

The process is not without controversy. Everyone would agree in principle that important public decisions be open and public. But there are those-many of them in the legal profession-who fear that a parliamentary review of judicial appointments carries more risk than benefit. The critics argue that an open process will tend to politicize the judiciary, and publicly embarrass the distinguished people who are nominated for appointment. This Committee, today, has the opportunity to show the critics that they are wrong. This Committee has the opportunity to demonstrate that the Canadian virtues of civility and moderation can make an open and public process work.

Your proceedings this afternoon follow the work of an Advisory Committee that was appointed by the previous Government. The Advisory Committee had reviewed the qualifications of many well qualified candidates and had produced a short list of three names. That was the state of the process when the last Parliament was dissolved. The present Government could have abandoned that short list, and started the process again. Instead, they decided to embrace the previous government's short list. The Prime Minister, acting no doubt in consultation with the Minister of Justice, has chosen one person from the list to nominate for the appointment. That person is the Honourable Marshall E. Rothstein, who is now a judge of the Federal Court of Appeal. That is the person who appears before you today.

Role of Committee

The authority to make appointments to the Supreme Court of Canada is possessed by the Governor in Council. That is prescribed in the Supreme Court Act, and that has not been changed. So this appointment will have to be made by the Governor in Council, which will act on the advice of the Prime Minister. This Committee is charged with providing advice to the Prime Minister. He has undertaken to take into account the deliberations and views of the Committee in deciding whether or not to proceed with the appointment of Mr Justice Rothstein.

This Committee has the task of interviewing Mr Justice Rothstein to determine whether he is well qualified to serve on the Court. It really is a job interview, and like any other job interview the questions to the candidate should respect both his dignity and his privacy. As well, any questions put to the candidate should proceed from an understanding of the role that is played by a judge of the Supreme Court of Canada. I want to say something about that role.

Role of judges

Judges decide cases by finding the facts that are relevant and applying the law to those facts. In the appeals that reach the Supreme Court of Canada, there is the further complication that the law itself is usually unclear. That is usually why the case has gone all the way to the highest court. Inthat case, the judges have to decide what the law is, as well as how it applies to the facts of the case.

Before each appeal is heard the judges are required to read and digest a massive amount of material. They read the decisions of the lower courts that are being appealed, they read at least some of the transcript of the evidence at trial, they read the decided cases that are arguably precedents for this case, they read the articles by law professors that bear on the issue, and they read the factums-the briefs of argument-that are filed by counsel on both sides of the case. And then, when the appeal is heard, the judges listen to the oral arguments of counsel on both sides, and they test those arguments by asking questions. Only after carefully considering all of this material, and weighing the arguments on both sides, are the judges able to reach a decision.

The Supreme Court of Canada decides about a hundred appeals every year. Each one of them involves the reading and research that I have just described. And of course the Court has to reach a decision on each appeal, and then write an opinion. The Court of nine judges is usually unanimous, but in a minority of cases the Court is divided and one or more dissenting opinions have to be written. So it is a heavy workload that we require of our Supreme Court judges.

Limits on questions

When you think about the role that Mr Justice Rothstein will be called upon to play if his nomination is confirmed, it becomes obvious that there are some questions that he cannot be expected to answer.

He cannot express views on cases or issues that could come before the Court. He cannot tell you how he would decide a hypothetical case. He might eventually be faced with that case. For the same reason, he cannot tell you what his views are on controversial issues, such as abortion, same-sex marriage or secession. Those issues could come to the Court for decision in some factual context or other. Any public statements about the issues might give the false impression that he had a settled view on how to decide those cases--without knowing what the facts were, without reviewing all the legal materials, and without listening to and weighing the arguments on both sides.

Another kind of question that is inappropriate for a judge to answer is the question of why he decided a particular case in a particular way. Because Justice Rothstein is a sitting judge, he has written many opinions. These are listed in the dossier that members of the Committee have been given. Several of the opinions have been included in full as samples. His reasons for decision in each of those cases are set out in writing. While he can talk in general terms about his work as a judge, and even about the issues in particular cases, he cannot give an oral explanation of why he decided a particular case. He has done that in his written opinion. That opinion is a precedent that lawyers and other judges will rely upon. They should be able to rely on the written opinion, and not have to hunt down oral explanations by the judges as well. Written opinions are available to all. Oral explanations are limited to those who hear them.

[Another category of information that a judge cannot divulge is the details of the deliberations among the judges that follow the oral argument and that eventually lead to a decision and the writing of an opinion or several opinions. Like discussions in cabinet, that is quite properly regarded as confidential by the judges of a multi-member court like the Federal Court of Appeal or the Supreme Court of Canada. Of course, that does not preclude the Committee from asking Justice Rothstein general questions about how he reaches decisions or how he interacts with his colleagues.]

Qualities of the nominee

What the members of the Committee can and should do is to satisfy yourselves that this person has the right stuff to be a judge of the Supreme Court of Canada. Does he have the professional and personal qualities that will enable him to serve with distinction as a judge on our highest court? Let me suggest six qualities that you might want to explore in your questioning.

1. He must be able to resolve difficult legal issues, not just by virtue of technical legal skills, but also with wisdom, fairness and compassion.
2. He must have the energy and discipline to diligently study the materials that are filed in every appeal.
3. He must be able to maintain an open mind on every appeal until he has read all the pertinent material and heard from counsel on both sides.
4. He must always treat the counsel and the litigants who appear before him with patience and courtesy.
5. He must be able to write opinions that are well written and well reasoned.
6. He must be able to work cooperatively with his eight colleagues to help produce agreement on unanimous or majority decisions, and to do his share of the writing.

Ladies and gentlemen of the Committee: If today you find the person with those qualities, the nation will thank you, and the Prime Minister will have an easy choice ahead of him.

That concludes my remarks.