A Supreme Court of Canada judge has broken with protocol to defend himself against an accusation that he didn't keep his promise to achieve fluency in French.
Mr. Justice Marshall Rothstein was stung by accusations that he reneged on his word, levelled by two NDP MPs during the recent parliamentary committee hearings into two Supreme Court appointees. Judge Rothstein told The Globe and Mail that transcripts of a question-and-answer session held in Parliament shortly before his own 2006 appointment to the top court reveals there was no such promise.
Concern is mounting in the legal community that Judge Rothstein has become a casualty in a politically volatile battle over bilingualism. The incident raises fears that a procedure for reviewing Supreme Court appointees – created to bring transparency to the appointment process – may be going off the rails.
The accusations against Judge Rothstein were made by MP Joe Comartin, the NDP's long-time justice critic, and MP Françoise Boivin, during a televised committee session two weeks ago to review the two latest Supreme Court appointees – Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis.
The MPs scoffed at a pledge by Judge Moldaver to learn French, asserting that Judge Rothstein made a similar promise and had never come through on it. "Maybe it's a case of once bitten, twice shy; but I heard the same commitment from him," Mr. Comartin said. "That was five years ago, and Justice Rothstein is still unable to conduct any hearings in French."
Judge Rothstein, who takes weekly French lessons from a tutor while the court is in session, said the transcript should settle the issue. "Mr. Comartin was at the parliamentary hearing in 2006 and the record of that hearing is perfectly clear as to what I said and what questions were and were not put to me," he said. "It speaks for itself. I have no intention of engaging in a debate with Mr. Comartin."
In an interview, Mr. Comartin conceded that he cannot recall when – if ever – Judge Rothstein actually promised to become bilingual. Mr. Comartin also said that he did not research the issue before he mounted his attack on Judge Rothstein: "I was going on memory at that point," he said.
The bilingualism issue, which erupted this fall over Judge Moldaver's inability to speak French, became further inflamed last week when Prime Minister Stephen Harper selected a unilingual candidate, Michael Ferguson, to be the next Auditor-General.
Joshua Weinstein, president of the Canadian Bar Association's Manitoba branch, said the parliamentary review process will be discredited if MPs can make false accusations against judges, "sidetracking it into a bit of a circus."
Judge Rothstein was appointed purely on merit and has compiled an excellent track record on the Supreme Court, Mr. Weinstein said. "To have it go into a tailspin with this type of criticism is, in my opinion, not the sort of thing these review hearings were meant for," he said.
Constitutional scholar Patrick Monahan, vice-president academic and provost of York University, said that it is clearly desirable for Supreme Court judges to be bilingual, but the damage done to Judge Rothstein's reputation is a separate issue.
"My feeling is that the comments about Marshall Rothstein were grossly unfair because he wasn't there to defend himself," Mr. Monahan said. "It was grossly unfair to suggest that certain commitments were made and they have not been honoured."
Mr. Comartin speculated in the interview that his belief that Judge Rothstein had promised to become bilingual may have come about because of something said by a third party during confidential interviews a committee of MPs conducted in 2006 to screen finalists for the Supreme Court vacancy.
"I can't speculate about how I may have had that information, but it may very well [have been]a result of that process," Mr. Comartin said. "If it was in the closed-door meetings – and I'm not saying it was because I just don't remember – but if it was, I wouldn't be able to tell you that."
The committee later had to destroy any material it compiled, he said. "I really wouldn't have any way to go back," he said.
According to a transcript of his 2006 hearing, Judge Rothstein merely said that: "I recognize that my not being bilingual and my being educated in a common-law jurisdiction will require a greater effort on my part to hear and decide cases argued in French and involving the civil law."