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the tyee
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Feb
28
Is Peter Hogg the Monarch?
February 28, 2006 |
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.
national post
As children would say, “Who died and made you God, Peter?”
I have tremendous respect for Professor Hogg. I’ve read most of what he has written on the Canadian Constitution and I think he is dead right about 90% of the time.
However, the Rothstein hearings were an exploration of unknown country. There were no rules. Pace Professor Hogg but ther is not the slightest constitutional argument that members of a parlaimentary committee are constrained as to the questions which they might properly ask a SCC nominee. And, of course, he has a perfect right to decline to answer. But to say that he “could not explain his past rulings nor express his opinions on controversial issues” is rubbish.
Traditionally, judges do not speak publically on such matters - and certainly they do not ecplain decisions which they have made - but that is within the context of a media interview not an appearance before a Parliamentary Committee.
Of course, our MPs are sufficiently surpline that, once Professor Hogg had set the ground rules - laregly by pulling them out of his hat - they rolled over and accepted the fact that Rothstein was somehow barred from speaking frankly.
What a charade.
Which is not to say that there is anything in the least bit wrong with Mr. Justice Rothstein. He seemed like a pretty reasonable nominee and nothing which he said at the hearing - so-called - changes that.
But seriously, where does Hogg get off.
(One note: I have not found a complete transcript of Hogg’s remarks and I have sufficient respect for the man to assume that he provided a legal framework for them. If anyone has found it please send me the URL.)
Comments
6 Comments so far
” He seemed like a pretty reasonable nominee and nothing which he said at the hearing - so-called - changes that.”
He seems reasonable because:
a) he’s the best of a sorry lot, the legal profession. The whole judicial-legal complex is inherently and peversely left/lib to the extent that I don’t think we even have any conservative judges in this country. Being conservative would be career suicide. Take for example the RCMP who wanted to run as a Tory candidate this past election. He was strongly dissuaded from doing so; in fact, he was told by a superior that some of the CPC platform was hate speech! Sort of the same thing with lawyers and judges; expressing conservatism would probably bring charges of * - ism and would put an end to any hope of advancement.
b) they have supressed the fact that he was a “Human Rights” adjucator for over a decade. There is little or no mention of it in the media. Don’t show me Rothstein’s rulings on grain elevators, show me the goofiest of his kangaroo court rulings, which up to now have been suppresed.
c) I’ve never seen bloggers so hesitant to offer an opinion on such a substantive matter. Almost nobody has offered an opinion on the guy other than mealy mouthed “Great CV”. Highly anomalous that a former human rights\kangaroo court judge handpicked by Irwin Cotler just got nominated to the SCOC and nary a peep from conservatives, no? Very, very strange, and the most likely explanation is that because of Rothstein’s ethnicity, which of course is being trumpeted as a positive, PC-chilled bloggers and media are hesitant to criticize him lest they be labelled anti-semetic. That is the most likely explanation.
Presumably he got off because Harper asked him to be there and make remarks about the constitutionality of the event. No charade at all. There are rules even when they have to be gleaned by implication. Do you think the Senate confirmation hearings in the US are some sort of play ground free for all?
CTV has video of some of his remarks posted.
Alan, er, well yes, the Senate confirmation hearings are an embarassment all round.
This hearing was important as it established a precedent but what precedent? Essentially that there are no go areas for Parliamentarians when it comes to SCC nominees and these no go areas include “past rulings and opinions on controversial areas”.
Worse, it has established the precedent that the PM will call the hearing at his convenience, the hearings length will be set by the PM/Minister of Justice and that there will be next to no preparation time. (Can you imagine taking a case before the Supreme Court with a week to prepare?)
And the MPs just lay there and took it.
Anonalogue, I agree with many of the points you raise but I don’t think Rothstein’s religion (I have a hard time with ethnicity when it comes to Judaism: there really is no such thing as an particularily Jewish enthnicity) had anything to do with the lack of digging.
Neither bloggers nor MSM have had any practice with rooting around in the judicial anecedents of SCC nominees. This is because this was, and remains, a largely pointless task in a process which is entirely closed to effective public and Parlimentary scrutiny.
Thanks Ben.
I do see your point, Jay, as the MPs did take it but they are loath to dicker with the law of Parliament which is complex and few really get it. Sort of like wide-eyed Stevie H at the East Coast music awards last night wondering what to do when he found himself and his good wife being sung to by Bubbles when the song was “Liquor and Whores”. Well, sorta like that.
I would like to point out that you are incorrect in this matter, and that Hogg was, in fact, correct in stating that Rothstein could not explain his past rulings.
Canada has a principle of judical independence that was “constitutionalized” and added to s. 52(2) of the Constitution Act, 1982 by the Supreme Court of Canada in Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3.
But what does the constitutional principle of judicial independence mean?
In the case of MacKeigan v. Hickman, [1989] 2 S.C.R. 796, Justice McLachlin (as she then was), writing for a unanimous Supreme Court of Canada held that:
The judge’s right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge… To entertain the demand that a judge testify before a civil body, or emanation of the legislature or executive, on how and why he or she made his or her decision would be to strike at the most sacrosanct core of judicial independence.
[830-31]
Therefore, it would be unconstitutional for Judge Rothstein to answer questions relating to his previous opinions. Such answers would violate the constitutional principle of judicial independence.
Peter Hogg was correct in stating that Rothstein could not answer these types of questions.
Just because the process of public hearings is new, doesn’t mean that there aren’t constitutional rules (i.e. judicial independence) that have something to say about how judges can behave in public (especially when being questioned by the legislative branch about their judicial opinions).
Cheers.