Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada — Transcript and Full Account

# Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada

On the afternoon of Monday, February 27, 2006, something happened in Ottawa that had never happened before in the 139-year history of Canadian Confederation. A nominee for the Supreme Court of Canada sat down in the Reading Room of Centre Block on Parliament Hill, looked across a table at twelve elected Members of Parliament drawn from every party in the House of Commons, and answered their questions — live on national television.

The nominee was the Honourable Justice Marshall E. Rothstein of the Federal Court of Appeal. The body assembled to question him was the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada. And the proceeding itself was a first: a genuine, public, all-Party review of a person about to be appointed to the highest court in the land.

Member of the historic all-Party Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada that interviewed Supreme Court Nominee Judge Marshall Rothstein on February 27, 2006, televised live on national news channels.

This article reconstructs that hearing — its origins, its participants, its structure, the key exchanges — and places it in the broader story of how Canada appoints the judges who shape the nation's laws.

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To understand why Parliament resorted to an *ad hoc* committee, you need to know what was happening politically in early 2006.

On January 23, 2006, Canadians went to the polls and elected a Conservative minority government led by Stephen Harper. Parliament had been dissolved for the election, and the new Parliament had not yet been called back into session. That meant no standing committees existed — the House of Commons committees that normally scrutinize government decisions simply did not exist yet.

But there was an urgent vacancy on the Supreme Court. The Honourable Justice John Major had retired from the bench effective December 25, 2005. Under the previous Liberal government of Paul Martin, Justice Minister Irwin Cotler had already begun the selection process during the summer of 2005. An advisory committee — composed of a retired judge, a nominee from the Prairie provincial governments, a nominee from the legal profession, two lay citizens, and four Members of Parliament — had reviewed six candidates and narrowed them to a shortlist of three. The election call in November 2005 had frozen the process in place.

When Harper took office, he faced a choice: scrap the Liberal shortlist and start fresh, or pick from the existing three names and get the seat filled. He chose pragmatism. On February 20, 2006, he announced that his government would accept the shortlist but add something new — a public hearing where the nominee would appear before Members of Parliament and answer questions on live television. It was, as he called it, "an unprecedented move forward" in how Supreme Court justices are selected in Canada.

The problem was mechanical: no Parliament, no committees. So the House Leader negotiated with all party leaders to assemble a group of twelve MPs from every party, operating under agreed-upon rules that resembled normal parliamentary procedure. This body was officially named the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada.

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The man who would face this unprecedented public scrutiny was Marshall Edward Rothstein, born on Christmas Day, 1940, in Winnipeg, Manitoba.

Rothstein's roots were deeply Manitoban. He attended public schools in Winnipeg, then earned a Bachelor of Commerce in 1962 and a Bachelor of Laws in 1966, both from the University of Manitoba. Called to the Manitoba Bar in 1966, he began his legal career at the Winnipeg firm of Thorvaldson, Eggertson, Saunders and Mauro before moving to Aikins, MacAulay & Thorvaldson in 1969, where he would become a partner and eventually sit on the management committee.

For twenty-six years he was a practising lawyer — appearing before administrative tribunals, the Manitoba Court of Queen's Bench, the Manitoba Court of Appeal, the Federal Court, and even the Supreme Court itself. He taught transportation law part-time at his alma mater's Faculty of Law from 1970 to 1983 and again from 1988 to 1992. He was appointed Queen's Counsel in 1979.

His career on the bench began in 1992, when Prime Minister Brian Mulroney appointed him to the Federal Court (Trial Division). In 1999, Prime Minister Jean Chrétien elevated him to the Federal Court of Appeal. By the time Harper nominated him for the Supreme Court, Rothstein had authored more than 900 judicial decisions over thirteen years — a prolific output that spanned administrative law, tax law, intellectual property, immigration, and transportation regulation.

His most famous decision came in 1999, when he ruled in *President and Fellows of Harvard College v. Canada (Commissioner of Patents)* — the so-called "Harvard Mouse" case — that a patent could be issued for a genetically modified living organism. The Supreme Court overturned that ruling in a narrow 5-4 split in 2002, but the case cemented Rothstein's reputation as a judge willing to grapple with novel legal territory.

Justice Minister Vic Toews, himself a Manitoban, introduced Rothstein to the committee as "a brilliant jurist, with remarkable intelligence and great analytical skills." Toews noted that Rothstein was "well known as being an extremely hard worker, with the highest degree of integrity," and that his judicial writing was "clear, precise and complete."

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The twelve Members of Parliament who sat on the Ad Hoc Committee represented all four parties in the House of Commons. They were drawn roughly in proportion to each party's standing:

Conservative Party (5 members + Chair):

• Vic Toews — Minister of Justice and Attorney General of Canada (Chair)
• Diane Ablonczy
• Daryl Kramp
• Daniel Petit
• Rob Moore

Liberal Party (4 members):

• Irwin Cotler — former Minister of Justice (who had initiated the original selection process)
• Sue Barnes
• Anita Neville
• Stephen Owen

Bloc Québécois (2 members):

• Réal Ménard
• Carole Freeman

New Democratic Party (1 member):

• Joe Comartin

The presence of Irwin Cotler on the committee was notable. As the previous Justice Minister, he had set the original selection process in motion — assembling the advisory committee, overseeing the consultations, and approving the shortlist from which Rothstein was eventually chosen. His participation gave the hearing a thread of continuity between the old government and the new.

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No account of the Rothstein hearing is complete without discussing the man who, in many ways, made it work: Professor Emeritus Peter W. Hogg of Osgoode Hall Law School.

Peter Hogg was, by universal consensus, the most important constitutional law scholar Canada has ever produced. Born in New Zealand, educated at the University of New Zealand and Harvard Law School, he arrived at Osgoode Hall in 1970 and spent the next four decades becoming the author whose textbook sat on every constitutional lawyer's shelf — and the academic most frequently cited by the Supreme Court of Canada in its own decisions. He was a Fellow of the Royal Society of Canada, a Companion of the Order of Canada, and a former Dean of Osgoode Hall.

When the government needed someone to guide this unprecedented hearing — someone who could explain the boundaries of appropriate questioning, protect the nominee from being drawn into political traps, and lend the entire proceeding intellectual gravity — they turned to Hogg.

Hogg played a dual role. Before the hearing, he gave Rothstein what he later described as a three-hour crash course in constitutional law — preparing the nominee to discuss Charter rights, judicial activism, federalism, and other topics that parliamentarians might raise. During the hearing itself, he delivered a fifteen-minute opening presentation on the constitutional limits of judicial speech, advising committee members on what kinds of questions the nominee could and could not reasonably answer. At the close, he provided a summary of the proceedings.

As Justice Rothstein himself later said of Hogg's coaching: "He was a masterful teacher. That wasn't easy stuff. He was able to convey it to me in such a coherent, concise way. It was everything that I needed."

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Setting and Procedure

The hearing took place in the Reading Room, Centre Block, Parliament Buildings, Ottawa. It ran from 1:00 p.m. to approximately 4:30 p.m. — roughly three and a half hours.

It was televised live on CPAC (the Cable Public Affairs Channel) and CTV Newsnet. Canadians across the country could watch the proceedings in real time — an extraordinary level of transparency for a process that had, for the previous 139 years, taken place entirely behind closed doors.

Justice Minister Toews opened the hearing with a statement that captured the gravity of the moment:

He outlined the procedure: Professor Hogg would deliver a fifteen-minute opening presentation, followed by Justice Rothstein's opening remarks of approximately twenty minutes. Then each committee member would have three rounds of questioning — the first lasting eight minutes, the second and third lasting four minutes each. Toews, as Chair, would enforce the time limits.

He also issued a practical reminder: because this was technically not a parliamentary committee (Parliament had not been recalled), parliamentary privilege did not apply. If anyone said something defamatory, they would not enjoy the legal protections that normally shield MPs during committee proceedings.

Transcript: Key Exchanges

*Note: Because this was an ad hoc committee rather than a formal parliamentary committee, no official Hansard transcript was produced. The following excerpts are reconstructed from the televised broadcast (CPAC/CTV Newsnet), contemporaneous media reporting, and the academic record — principally Professor Peter Hogg's own detailed account published in the Osgoode Hall Law Journal.*

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OPENING — THE HON. VIC TOEWS, MINISTER OF JUSTICE (CHAIR):

Toews introduced the selection process that had brought the committee to this point: the vacancy created by Justice Major's retirement, the advisory committee's shortlist of three, and Harper's decision to accept the shortlist while adding the public hearing component. He then presented Rothstein's credentials at length, describing him as "a brilliant jurist" with "over 900 decisions during his 13 years on the bench."

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PROFESSOR PETER HOGG — OPENING PRESENTATION:

Professor Hogg addressed the committee for approximately fifteen minutes on a subject that would frame the entire afternoon: the limits of judicial speech.

He explained that a Supreme Court nominee, unlike a political candidate, cannot tell the committee how he would decide future cases. A judge who prejudges an issue has, in effect, abandoned impartiality. Hogg laid out the categories of questions that were appropriate — questions about the nominee's career, judicial philosophy, understanding of constitutional principles, and approach to legal reasoning — and those that were not — questions that asked the nominee to commit to a particular outcome on a case or controversy that might come before the Court.

This framework proved essential. Throughout the hearing, when questions veered too close to asking Rothstein to prejudge a specific legal issue, both the nominee and the committee understood where the line was.

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JUSTICE MARSHALL ROTHSTEIN — OPENING REMARKS:

Rothstein spoke for approximately twenty minutes. He discussed his background in Manitoba, his years in private practice, his teaching career, and his thirteen years on the Federal Court bench. He outlined his understanding of the judicial role, emphasizing several themes that would recur throughout the hearing:

He stressed that when applying the *Canadian Charter of Rights and Freedoms*, judges must approach statutes passed by democratically elected legislatures with restraint. If a law is to be struck down, the reasoning must be rigorous, and the Court should adopt "the least intrusive approach."

He described what he called his "cardinal rule" of statutory interpretation: do not read language into a law that Parliament did not include. The job of the judge, he argued, is to faithfully apply the text that the legislature actually enacted — not to improve it, expand it, or bend it toward outcomes the judge personally prefers.

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ROUND ONE — QUESTIONING (8 MINUTES PER MEMBER):

Committee members asked approximately sixty questions across two rounds. The major themes included:

Judicial activism and restraint:

Several members — particularly from the Conservative side — pressed Rothstein on the tension between parliamentary supremacy and judicial review under the Charter. Rothstein was measured:

He made clear that each branch of government had its assigned role and that the judiciary "must preserve the intent of the legislature or Parliament to the extent possible."

Charter rights and fundamental freedoms:

Liberal members, including Irwin Cotler, explored Rothstein's understanding of Charter protections. Rothstein acknowledged that judges can and do depart from precedent — but only where a prior decision "was clearly in error" or where "intervening cases have attenuated the validity of a prior decision." He did not treat the Charter as a static document, but neither did he treat it as an invitation for judicial lawmaking.

Bilingualism and access to justice:

Bloc Québécois member Réal Ménard raised the question of whether Supreme Court justices should be required to be bilingual — to understand both official languages without interpretation. Rothstein responded thoughtfully but did not commit to a specific policy position, noting that this was a matter for Parliament to decide.

Aboriginal and treaty rights:

Members asked about the Court's role in interpreting Section 35 of the Constitution Act, 1982 — the provision protecting Aboriginal and treaty rights. Rothstein addressed the question within the framework Hogg had established: he could discuss the legal principles governing Section 35 interpretation, but could not preview how he would rule on any specific case.

The role of precedent:

Rothstein was asked about when, if ever, the Supreme Court should overturn its own prior decisions. He explained that stability and predictability are fundamental values, but that the Court has always retained the ability to reconsider precedent where the original reasoning no longer holds. He balanced respect for *stare decisis* against the need for the law to evolve in response to changing circumstances.

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ROUND TWO — FOLLOW-UP (4 MINUTES PER MEMBER):

The second round allowed members to return to themes from the first. Several pressed Rothstein on specific areas of his judicial record — his intellectual property decisions (including the Harvard Mouse case), his immigration rulings, and his tax law jurisprudence. Rothstein answered these questions openly, walking the committee through his reasoning without crossing the line into discussing how he might rule on future cases.

Réal Ménard made what academic observers later noted as "a promising opportunity to explore Rothstein's judicial philosophy" by suggesting that Rothstein seemed to favour judicial restraint. Rothstein did not take the bait in any overt way, maintaining the careful line he had held all afternoon.

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CLOSING — PROFESSOR HOGG:

Professor Hogg delivered brief closing remarks summarizing the proceedings and noting that the hearing had demonstrated that Canadian parliamentarians could conduct a civil review of a judicial nominee without politicizing the judiciary.

As Hogg later wrote in his academic account: "The hearing established that Canadian parliamentarians can conduct a civil hearing that poses no danger of politicizing the judiciary or of embarrassing the nominee."

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CLOSING — THE HON. VIC TOEWS (CHAIR):

Toews thanked Justice Rothstein and Professor Hogg for their participation, thanked the committee members, and noted that the proceedings would inform the Prime Minister's decision. He invited committee members to communicate their views directly to the Prime Minister.

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The result was a foregone conclusion in terms of qualifications — Rothstein's credentials, his statement, and his answers left no doubt about his suitability for the Court. Prime Minister Harper watched the proceedings on television and received reports from the Justice Minister.

Two days later, on March 1, 2006, the Prime Minister announced the formal appointment of Justice Marshall Rothstein to the Supreme Court of Canada.

Rothstein would serve on the Supreme Court for nine years, from 2006 until his retirement in 2015. During that time, he was known for his rigorous analytical approach, his expertise in tax, intellectual property, and administrative law, and his commitment to clear, accessible judicial writing.

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The February 27, 2006 hearing set a precedent that went beyond Marshall Rothstein himself. It established, for the first time, that Canada could bring a measure of public transparency to one of the most consequential decisions in democratic governance — the appointment of the judges who interpret the Constitution.

The model was used again. Ad hoc committee hearings were conducted for the appointments of Justices Andromache Karakatsanis and Michael Moldaver (2011), Justice Richard Wagner (2012), and Justice Marc Nadon (2013). Not every subsequent appointment followed this process — Justices Cromwell (2008), Gascon, Côté (2014), and Brown (2015) were appointed without public hearings. But the 2006 precedent remained a reference point in every subsequent debate about Supreme Court reform.

The hearing also demonstrated what *didn't* happen. Unlike the often-contentious confirmation hearings in the United States Senate, the Rothstein hearing was civil, substantive, and non-partisan. No member attempted to turn the proceeding into a political spectacle. No one demanded that the nominee reveal how he would rule on a specific case. The framework that Peter Hogg established at the outset — and that all twelve committee members respected — ensured that the hearing served its purpose: informing Parliament and the public about the nominee's qualifications, character, and judicial philosophy without compromising judicial independence.

As Rothstein himself reportedly remarked when asked whether the process was a good one, he recalled a parable: "They say that shortly after the Communist revolution in 1949, one of the Chinese leaders was asked about the revolution's success. His reply was: 'It is too early to tell.' Perhaps it is too early to tell."

Two decades later, it is no longer too early. The Rothstein hearing worked. It proved that transparency and judicial independence are not opposites — that Canadians can know something about the men and women who sit on their highest court without turning the judiciary into a political arena.

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If you are studying for the Canadian citizenship test, this hearing matters because it illustrates several core themes from the *Discover Canada* study guide:

• The independence of the judiciary — judges are not politicians and must be protected from political pressure.
• The role of the Supreme Court — it is the final court of appeal and the ultimate interpreter of the Constitution, including the *Charter of Rights and Freedoms*.
• Parliamentary oversight — even the appointment of judges involves elected representatives, reflecting the democratic principle that power must be accountable.
• Federalism — the nominee was chosen from the Prairies to maintain regional representation on the Court, reflecting Canada's commitment to geographic balance in its institutions.
• Bilingualism — the question of whether Supreme Court justices should be bilingual touches on Canada's official languages policy and the rights of French-speaking Canadians.

These are not abstract concepts. They are living questions that Canadians decided, in part, on one Monday afternoon in February 2006.

Practise questions on government structure, the justice system, and the Supreme Court on our [free citizenship practice test](/practice-test) — the same format as the real IRCC test.

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1. Government of Canada. "Speaking Notes for The Honourable Vic Toews, Minister of Justice and Attorney General of Canada — Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada." *Canada.ca*, February 27, 2006. [https://www.canada.ca/en/news/archive/2006/02/speaking-notes-honourable-vic-toews-minister-justice-attorney-general-canada-ad-hoc-committee-review-nominee-supreme-court-canada.html](https://www.canada.ca/en/news/archive/2006/02/speaking-notes-honourable-vic-toews-minister-justice-attorney-general-canada-ad-hoc-committee-review-nominee-supreme-court-canada.html)
2. Supreme Court of Canada. "The Honourable Marshall Rothstein — Biography." *SCC-CSC.ca*. [https://scc-csc.ca/judges-juges/bio-eng.aspx?id=marshall-rothstein](https://scc-csc.ca/judges-juges/bio-eng.aspx?id=marshall-rothstein)
3. Hogg, Peter W. "Appointment of Justice Marshall Rothstein to the Supreme Court of Canada." *Osgoode Hall Law Journal*, Volume 44, Number 3 (Fall 2006), pp. 527–538. [https://digitalcommons.osgoode.yorku.ca/ohlj/vol44/iss3/7/](https://digitalcommons.osgoode.yorku.ca/ohlj/vol44/iss3/7/)
4. CBC News. "Harper nominates Rothstein for Supreme Court." *CBC.ca*, February 23, 2006. [https://www.cbc.ca/news/canada/harper-nominates-rothstein-for-supreme-court-1.586404](https://www.cbc.ca/news/canada/harper-nominates-rothstein-for-supreme-court-1.586404)
5. *The Globe and Mail*. "Rothstein tapped as Supreme Court nominee." February 23, 2006. [https://www.theglobeandmail.com/news/national/rothstein-tapped-as-supreme-court-nominee/article22503524/](https://www.theglobeandmail.com/news/national/rothstein-tapped-as-supreme-court-nominee/article22503524/)
6. Slaw.ca. "Rothstein — The Committee." February 25, 2006. [https://www.slaw.ca/marshall-rothstein-pages/rothstein-the-committee/](https://www.slaw.ca/marshall-rothstein-pages/rothstein-the-committee/)
7. Government of Canada. "Prime Minister announces appointment of Mr. Justice Marshall Rothstein to the Supreme Court." *Canada.ca*, March 1, 2006. [https://www.canada.ca/en/news/archive/2006/03/prime-minister-announces-appointment-justice-marshall-rothstein-supreme-court.html](https://www.canada.ca/en/news/archive/2006/03/prime-minister-announces-appointment-justice-marshall-rothstein-supreme-court.html)
8. House of Commons of Canada. "Committee Report No. 9 — JUST (42-1) — Supreme Court Appointments Process." *OurCommons.ca*. [https://www.ourcommons.ca/DocumentViewer/en/42-1/JUST/report-9/page-21](https://www.ourcommons.ca/DocumentViewer/en/42-1/JUST/report-9/page-21)
9. *The Globe and Mail*. "New Zealander Peter Hogg quietly shaped Canadian law." February 22, 2020. [https://www.theglobeandmail.com/canada/article-new-zealander-peter-hogg-quietly-shaped-canadian-law/](https://www.theglobeandmail.com/canada/article-new-zealander-peter-hogg-quietly-shaped-canadian-law/)
10. Justice Canada. "Interim Ad Hoc Committee on the Appointment of Supreme Court Judges — Appendix A." *Justice.gc.ca*. [https://www.justice.gc.ca/eng/rp-pr/cp-pm/cr-rc/scj2-jcs2/annexa.html](https://www.justice.gc.ca/eng/rp-pr/cp-pm/cr-rc/scj2-jcs2/annexa.html)