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Some quotes from Malcolm Rowe, Justin Trudeau's first Supreme Court nominee

October 17, 2016 - 1:04 PM

OTTAWA - A selection of quotes from Justice Malcolm Rowe, the latest nominee to the Supreme Court of Canada, taken from the questionnaire he filled out in applying for the job and distributed Monday by the Prime Minister's Office:

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"The Supreme Court is not, primarily, a court of correction. Rather, the role of the court is to make definitive statements of the law which are then applied by trial judges and courts of appeal. Through the leave to appeal process, the court chooses areas of the law in which it wishes to make a definitive statement. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it."

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"Judges have a unique role as regards the common law, as it is judge-made. Thus, it is our role to adapt the common law to novel facts and changes in society. This can be contrasted with the role of judges concerning the interpretation of statutes. Applying the proper methodology, the role of judges is to give effect to the will of the legislature, as the making of statute law is the role of elected representatives. The civil code does not conform to this common law paradigm and must be dealt with in the structure of analysis of the civilian system."

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"The charter is an affirmation of those rights and liberties that are to be defended against infringement by the state. Judges decide whether such infringement has occurred and, if so, what remedy should follow. This is a profound change in the role of judges. In the past 34 years, Canadians have come to accept and embrace this enhanced role for judges. The wisdom and well-founded principles that have informed this role in the jurisprudence of the Supreme Court reflect favourably on our country. Charter interpretation will always be a work in progress, albeit one in which foundational concepts that have been set out should be maintained."

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"Concerning foundational issues (e.g. inherent right to self-government), the Supreme Court has chosen to seek to encourage, facilitate and guide governments and indigenous peoples to give full expression to aboriginal and treaty rights, rather than the court making definitive statements. Doing so prematurely could undermine efforts toward nation-to-nation resolution of issues directed to the goal of reconciliation. Development of the law, including indigenous law, will be a process with many steps."

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"It is fundamental that a citizen can seek redress against the improper use of authority. This is largely a matter of administrative law. In this role the judge should respect the proper exercise authority by the executive, e.g. a minister, or a regulatory authority, while not hesitating to quash or require remedial action where such authority has not properly been exercised."

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"The Supreme Court maintains and develops the structure of law in Canada. Stability and predictability are important to maintain that structure. But, adaptation to changes in society, including changes in shared goals, is critical to the law's development. It is important to operate from first principles, while also considering practical results. It is no less important to eschew ideological positions. Should the court lead or mirror a shared sense of justice? The answer is, of course, both. Generally, it should lead when the time is ripe to do so, having regard to the needs and aspirations of Canadians."

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News from © The Canadian Press, 2016
The Canadian Press

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