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New Canadian Supreme Court Nominee Ruled Against Same Sex Benefits

By John-Henry Westen

OTTAWA, February 23, 2006 (LifeSiteNews.com) - LifeSiteNews.com has learned that Justice Marshall Rothstein who was today nominated by Prime Minister Stephen Harper to the Supreme Court of Canada, ruled in a 1983 case against homosexual benefits. 

Nonetheless, Rothstein, a Federal Court of Appeal judge from Manitoba, was selected from the short-list presented to the previous Liberal Government.  "Marshall Rothstein's candidacy was scrutinized by a comprehensive process initiated by the previous Government that included members from all the political parties," said Prime Minister Harper. "I believe he has the qualifications necessary to serve Canadians well from the country's highest court."

Mr. Rothstein has agreed to answer questions from an ad hoc all-party committee on Monday, February 27. The televised hearing will mark the first time in Canadian history that a Supreme Court nominee will face questions from Members of Parliament.

Prime Minister Harper has previously stressed that he was looking to nominate a judge who strictly interpreted the law rather than an activist who would make new laws. As Harper put in June 2004, judges should be "there to act upon the laws that are passed by Parliament, sometimes they have to interpret that, but they're there to apply it, they're not there to make it or re-make it." Those qualities are seen by legal experts in Justice Rothstein.

In the 1983 case, Chris Vogel an employee of the Province of Manitoba filed a complaint under the Human Rights Act alleging discrimination on the basis of sex and marital status since his homosexual live-in Richard North was denied spousal benefits.  Rothstein dismissed the case on August 23, 1983 (see Vogel v. Manitoba (1983), 4 C.H.R.D. D/1654).

Rothstein, in making the decision, merely followed the law which at the time did not specify sexual orientation as a form of prohibited discrimination.  The Human Rights Code replaced The Human Rights Act on December 10, 1987. By virtue of Section 9(2)(h) of the Code, sexual orientation was added as a form of prohibited discrimination. Vogel resubmitted his complaint and it was again rejected by another justice.

The public scrutiny of the selection, via questioning by MPs, prior to his official installation has been blasted by the left as 'politicization' of the judiciary.  Chief Justice Beverley McLachlin publicly spoke out against such "politicization", but REAL Women of Canada has produced a reality check for the Chief Justice demonstrating that the courts are already extremely politicized.

REAL Women notes that in the two-year period that former Prime Minister Paul Martin and his Minister of Justice, Irwin Cotler, were in power, the following individuals were given judicial appointments:

- Michael Brown, Mr. Cotler's executive assistant and policy advisor;
- Yves de Montigny, Mr. Cotler's Chief of Staff;
- Randall Echlin, the Legal Counsel to the Ontario Liberal Party;
- Rosalie Abella, (appointed to the Supreme Court of Canada), wife of Mr. Cotler's close friend, Irving Abella;
- Marsha Erb, Alberta Liberal fundraiser, a close personal friend of Cotler's former Cabinet colleague, Anne McLellan;
- John J. Gill, Co-chair of the 2004 Alberta federal Liberal campaign;
- Vital Ouellette, an unsuccessful Alberta provincial Liberal candidate in 1997 and 2000 elections;
- Bryan Mahoney, federal Liberal candidate who lost twice to federal Conservative MP Myron Thompson; - Edmond Blanchard, former Liberal New Brunswick Minister of Finance

Harper said he was "looking forward to watching the ad hoc committee's work and listening to Mr. Rothstein's answers."  He added, "This hearing marks an unprecedented step towards the more open and accountable approach to nominations that Canadians deserve."

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