Malcolm Rowe, New Supreme Court Nominee, Faces Grilling By MPs, Senators

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OTTAWA — Jurists should show humility, tact and compassion in cases involving sexual assault and harassment, Newfoundland and Labrador judge Malcolm Rowe said Tuesday as MPs and senators sized up his suitability for the Supreme Court of Canada.

Rowe, Prime Minister Justin Trudeau's first high court nominee and the first from Newfoundland, took part in a question-and-answer session with MPs and senators at the University of Ottawa, with law school students invited to watch.

malcolm rowe
Justice Malcolm Rowe takes part in a question-and-answer session with members of the Commons justice committee Tuesday October 25, 2016 in Ottawa. (Photo: Adrian Wyld/CP)

"As a judge, I see all too often these alarming situations, like the cases of sexual assault, family violence and the poor treatment of children," he  said. "Law alone cannot respond to all these things, but the effective intervention of the courts constitutes a necessary element of the response.

"A judge must be independent, open in spirit, patient, demonstrate humility and tact. He must also be understanding and show compassion. I have always tried to demonstrate all of these qualities."

Rowe was responding — indirectly — to a question from Conservative Sen. Denise Batters about a decision he made in May as a judge on the Newfoundland and Labrador Court of Appeal.

He denied a new trial in a sexual assault case, despite acknowledging that a complainant was treated unfairly when the trial judge allowed explicit text messages and the transcript of a sex tape she had participated in to be read to the jury.

The defendant was acquitted on all counts.

"A judge must be independent, open in spirit, patient, demonstrate humility and tact. He must also be understanding and show compassion. I have always tried to demonstrate all of these qualities."

The case, known as R. v. S.B., is coming before the Supreme Court next March.

"These words are cold comfort to this complainant," Batters said of the majority decision written by Rowe, in which the nominee referred to the reading of the text messages as "gratuitous humiliation."

"She must have felt so frustrated that the injustice done to her in that trial was recognized by you, but not rectified by you."

The rules of the forum prohibited Rowe from addressing the specifics of how he arrived at the decision.

"He cannot be harnessed or hampered by statements made here that might give the impression that his opinion on any topic is cast in stone," Daniel Jutras, the McGill University law professor who moderated the event, said at the outset.

"This constraint on today's session is the price we must pay for an independent and impartial judiciary."

Liberals changed appointment process

The Liberal government has changed the Supreme Court appointment process to encourage more openness, transparency and diversity, and to require high court justices to be functionally bilingual.

The opposition has criticized the Liberals for saying they would not necessarily follow the tradition of regional representation, which customarily results in three members of the nine-justice panel being from Ontario, two from western Canada and one from the Atlantic region. The Constitution requires the remaining three be from Quebec.

That topic came up when Rowe was asked by Nova Scotia Liberal MP Colin Fraser what his being the first Supreme Court justice from Newfoundland would bring to the bench.

Rowe responded that while legal principles are common across Canada, it is important the top court does not have any regional blind spots.

"Context always matters," he said.

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