A Tale of Two Justices

Justice Rosalie Abella and Justice Marshall Rothstein are often depicted as the opposite ends of the philosophical spectrum on the Supreme Court of Canada. Justice Abella is considered by many to be the most liberal member of the current Supreme Court (of course, whether this is good or bad depends largely on your own personal worldview), while Justice Rothstein is similarly widely considered to be one of the court’s most conservative members. The two justices are frequently lionized or demonized by partisans on either side of the political aisle; Abella is dubbed a “judicial activist” while others label Rothstein an “old-school do-nothing” judge.

As entertaining as such hyperbole can be, it’s sadly inaccurate. Canada remains a nation with a devoutly centrist judicial tradition, and Justices Abella and Rothstein are not great outliers from that tradition. In the seventy-three Supreme Court cases where both Justices Abella and Rothstein have sat, they agreed in fifty-nine of them, or eighty-one percent of the cases. Four times out of five, given the opportunity, Justices Abella and Rothstein have agreed. They have agreed on a judicial expansion of Canada’s libel laws (Mair v. Simpson,, 2008 SCC 40), on the importance of procedural rights for suspected terrorists (Charkaoui v. Canada, 2008 SCC 38), on the duties of employers towards disabled employees (Honda v. Keays, 2008 SCC 39), that same-sex marriage partners deserve the same pension benefits as opposite-sex marriage partners (Canada v. Hislop, 2007 SCC 10), and that Omar Khadr deserves the support of the Canadian government where able (Canada v. Khadr, 2008 SCC 28).

Looking at their disagreements, patterns emerge. Justice Abella’s dissents that have disagreed with Justice Rothstein often tend to be decisions where the performance of a judge is called into question (see for example R. v. Spencer, [2007] SCC 11 ; Madsen Estate v. Saylor, [2007] SCC 18, Stein v. Stein, 2008 SCC 35). In such decisions, Justice Abella’s dissents (whether authored by her or not) typically argue that the judge in question acted in an improper or incorrect manner (admissibility of evidence, orders to jury or due consideration of facts at hand), rather than arguing a point of law.

Justice Rothstein’s dissents, by comparison, tend to be more involved in the legal boundaries of Charter requirements and governmental powers. His dissents include the argument that the use of drug-snuffer dogs do not violate s.8 (R. v. Kang-Brown, 2008 SCC 18), that the government should not be held liable for negligent investigations (Hill v. Hamilton-Wentworth Regional Police, 2007 SCC 41), that the Canadian Transportation Agency has limited capacity to require rail operators to modify rail cars for disabled passengers (Council of Canadians with Disabilities v. VIA Rail, 2007 SCC 15, and most recently that the Crown should not have the burden of proving that a young offender be tried as an adult (2008 SCC 25). Although these all sound like the positions of a traditional “law and order”-type conservative, it is worth noting that in most instances, Justice Rothstein notes that the responsibility exists (which conflict with some far-right positions in these areas), but merely argues that the case in question is not an example of where the responsibility stretches.

Any detailed examination of the justices’ records shows that condemnation or congratulation of Justices Abella or Rothstein based on the ideology of their judicial records in the Supreme Court of Canada is essentially baseless. As with most justices of the SCC, both Abella and Rothstein have strived to take, on the whole, a responsible, centrist and sober position as regards their judicial reasoning. As a nation, we are lucky to have both.