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Supreme Ontario appeals Justice Marc Rosenberg never sat on top court

In his 20 years on the bench, Justice Marc Rosenberg wrote close to 2,500 judgments. He was content to teach and lead his profession by example, and forever reticent to become the story.

Phil Brown

He was arguably the best judge the Supreme Court of Canada never had.

Many a lawyer or judge dreamed of seeing Ontario Court of Appeal Justice Marc Rosenberg appointed to the top court; that dream died on Aug. 27, when he succumbed to brain cancer.

In truth, however, few actually expected the 65-year-old jurist to end up in the top court. Greasing the wheels of the federal appointment process through social and professional connections was anathema to him. Moreover, Justice Rosenberg was an outspoken advocate of the Charter of Rights, fair trial rights and enlightened sentencing, placing him entirely out of tune with a government known for its tough-on-crime posture and its chilly embrace of the Charter.

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"I think he would have been a brilliant Supreme Court judge," said Michal Fairburn, an Ontario Superior Court judge and top appellate lawyer prior to her appointment. "He penned some of the most significant decisions that came out of his court. He had the skills and drive to do absolutely anything he set his mind to."

In his 20 years on the bench, Justice Rosenberg wrote close to 2,500 judgments. He was as conversant with evidence, criminal procedure and Charter of Rights jurisprudence as he was with the quarterly law reports and annual Criminal Code of Canada volume that he helped to annotate and publish each year.

Above all else, his commitment to trial fairness was profound. "His reputation for honesty, integrity and professionalism was second to none," said Supreme Court of Canada Justice Michael Moldaver, a long-time friend. "He was constantly trying to find the right balance between the rights of the accused and the state."

Some of those in the legal world were puzzled that his death last week was accorded none of the media clamour that surrounded the 2014 death of his former law partner, Edward Greenspan. The juxtaposition says much about two men, who were dominant in their criminal law field.

Colourful, charismatic and always ready with a bon mot, Mr. Greenspan loved to expound on the law to a public audience. While "Fast Eddie" seemed at home in a television studio having makeup applied, the mild-mannered and down-to-earth Justice Rosenberg was in his element while poring over musty law books in a quiet alcove.

Justice Rosenberg was content to teach and lead his profession by example, and forever reticent to become the story.

"He wrote dozens and dozens of bread-and-butter-type judgments, but rarely did they receive public notoriety," Justice Moldaver said. "Like most things Marc did, ‎he did not seek or get a lot of public glory. His judgments were the 'brick‎s and mortar' of the criminal law. He left the ornaments to others."

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Marc Rosenberg was born to Morris and Ethel Rosenberg on Jan. 4, 1950, in Don Mills, a neighbourhood in North York, Ont. He and his sister, Teddy, and brother, Herschel, enjoyed a typical middle-class upbringing. Young Marc attended local elementary schools and Don Mills Collegiate Institute, where he met his future wife, Martha, at a party.

They married on Aug. 22, 1971, and brought up their own children, Daniel and Debra, in the same neighbourhood.

After graduating from the University of Western Ontario in 1971, he earned a degree from York University's Osgoode Hall Law School in 1974. He was called to the bar in 1976 and practised law for nearly two decades at the powerhouse firm he had set up with Mr. Greenspan, eventually joining the small fraternity of defence lawyers who had a stranglehold on criminal appellate work. He also spent a year as a senior official in the Ministry of the Attorney-General. In 1995, he was appointed to the Ontario Court of Appeal.

Justice Rosenberg was a devoted father. He was a frequent spectator at his children's sporting events, often with transcripts or casebooks in hand. Weekends and summers were spent at the family cottage on Lake Huron.

"When he was busy, he was very busy," recalled his son, Daniel, a 31-year-old freelance director in the film and music field. "But to us, he was just a normal father who cooked meals and [we] went cross-country skiing as a family. He loved swimming and watching storms come up over the lake. You could count on him for anything."

Debra, a Toronto criminal lawyer, recalled that her father instilled one primary lesson in the children: Do your best. "You didn't have to get As in school," she said. "My father always said that we should do whatever it is we want in life. Just try your best."

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Justice Rosenberg drove aging cast-off cars supplied by relatives or friends. He habitually wore a modest zip-up windbreaker. He was not notably religious, but spent a period as president of Temple Emanu-El synagogue, later giving that up to be an usher. A superb cook, he enjoyed golf and read voraciously about science, astronomy, history and international politics.

He was always available to help colleagues. Justice Fairburn recalled that early in her career as a Crown prosecutor, she was flailing her way through a sexual assault case one day when Marc Rosenberg, who was then representing the defence, approached her during the morning break. "This is why your argument is never going to fly," he told her, "and this is how you should tweak it."

"I realized later that I had been clearly irritating the court," she said. "He was giving me the tools to save face. It was a real learning moment for me – not just about maintaining credibility with the court, but about how senior counsel ought to treat junior counsel."

In the lingua franca of appellate courts, judges are typically perceived as being either defence-oriented or Crown-oriented. Justice Rosenberg, whose honours included the Criminal Lawyers Association's G. Arthur Martin Criminal Justice Medal for lifelong contributions to criminal law, was unquestionably defence-oriented. Yet, he was also scrupulously fair and gave prosecutors every chance to make their case.

"You knew it was going to be a good day in court when you were going before Justice Rosenberg," Justice Fairburn said. "Regardless of the result, you knew that you would have a completely engaged judge and justice would be served."

Justice Rosenberg's recall of the law was breathtaking. He could synthesize a wide range of facts and variables within a case and spot its logical linchpins or fatal weaknesses. In a eulogy, Ontario Appeal Court Justice Russell Juriansz said that when sitting on appeal panels with other judges, Justice Rosenberg would invariably remain silent while his colleagues would pepper lawyers with questions. Eventually Justice Rosenberg would chime in with a polite but telling question that immediately exposed a key flaw.

"The penny would drop," Justice Juriansz said. "The lawyers would stammer. The case was over."

Justice Rosenberg cared deeply about impecunious defendants and those who were not savvy to the labyrinthine court system. He became a driving force behind a program to bring Court of Appeal judges to detention centres where they could hear appeals brought by indigent prisoners or defence lawyers working for them pro bono.

An authority on sentencing, he favoured creative sanctions over the reliance on imprisonment. Overcome with frustration over penal policy in recent years, he spoke at a 2009 Criminal Lawyers Association convention about the justice system having fallen into a state of disrepair, highlighted by a flurry of punitive federal legislation such as mandatory minimum sentences.

"Something has gone terribly wrong," he said. "This increasingly punitive approach places an immense burden on you to protect your clients from unjust punishments."

His speech helped coalesce opposition to the Harper crime agenda, at the same time effectively scotching any faint hope there might have been for a future Supreme Court appointment.

Justice Rosenberg wrote lasting decisions on search and seizure, arbitrary detention, the exclusion of tainted evidence and the right to silence. He overturned Steven Truscott's conviction for murdering a young girl; approved the use of medical marijuana for a man with epilepsy; and broke legal ground in cases dealing with DNA evidence and confessions extracted by police using the so-called Mr. Big technique.

Justice Rosenberg was also part of a panel that struck down prostitution laws in Ontario in 2012 and reversed a stay of proceedings in a high-profile case of alleged police brutality, R. v. Schertzer.

His involvement in a slew of wrongful convictions that arose from unreliable testimony given by pathologist Dr. Charles Smith affected Justice Rosenberg deeply. The defendants had pleaded guilty to killing their children rather than risk facing a trial where the influential Dr. Smith would testify for the Crown. Justice Rosenberg began to openly question the coercive aspect of plea-bargaining that tempts the innocent to plead guilty in return for a lenient sentence.

Justice Katherine Corrick of the Ontario Superior Court, another close friend of Justice Rosenberg, said that unfairness "drove him crazy. For him, to be able to fix unfairness or correct systemic problems was hugely rewarding."

About a dozen years ago, Justice Rosenberg embraced a second vocation: teaching judges. He was a pioneer in problem-based training, a learning technique in which students listen to actual witnesses or legal arguments being delivered and then engage in active decision-making.

In class, Justice Rosenberg's native reserve would melt and he would become animated and engaged. Law professors and conference organizers would line up to book him as a guest lecturer.

In one such course he designed for the National Judicial Institute, Justice Rosenberg focused on the causes of wrongful convictions: the frailties of eyewitness testimony; police abuses; the undue credence that is often given to questionable testimony from expert witnesses; and the opaque motives that can induce jailhouse informants to lie.

"You would be hard pressed to find a judge anywhere in Canada who hasn't been exposed to Marc's teaching in the past decade," said George Thomson, former executive director of the NJI.

Justice Rosenberg also travelled abroad numerous times – to destinations including Ukraine, China, Tanzania and Brazil – to conduct judicial seminars.

Teaching was a natural extension of his judicial career, Justice Corrick said: "Writing appellate decisions is kind of like teaching the lower courts what they should be doing. He was a very creative decision-writer. So, teaching was a continuation."

In 2009, when his sister died, Justice Rosenberg dealt with the shock by throwing himself into work. Three years later, his family was rocked again when his wife had a fatal heart attack. Justice Rosenberg seemed to take stock of his life, opting to lessen his workload by adopting supernumerary status. Soon afterward, he began a romantic relationship with a long-time friend, Priscilla Platt, and they travelled extensively.

During a trip to Switzerland in June, 2014, Justice Rosenberg had a seizure. He was swiftly diagnosed with brain cancer. He was placed in palliative care last winter and was constantly surrounded by friends who fed, read and tended to him.

"It was a level of devotion I found extraordinary," Ms. Platt said. "I think that is what kept him alive for so long."

He leaves Ms. Platt; his children, Debra and Daniel; his mother, Ethel Rosenberg; and his brother, Herschel.

Justice Rosenberg came to grips with his impending death because life had been good to him, Ms. Platt said: "It just shows you that there is some justice. He was loved. He was given a position where he could exercise his skills and use them to a good end. He had a wonderful life."

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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