The Hon. Patrick LeSage, left, and Justice Marc Rosenberg are seen in 2008. Gentle and unfailingly polite, Justice Rosenberg was a favourite of lawyers who appeared before him.Kevin Van Paassen/The Globe and Mail
The death of Justice Marc Rosenberg of the Ontario Court of Appeal on Wednesday deprived the criminal law world of one of its most prolific writers and teachers.
Justice Rosenberg, 65, died of brain cancer, a year after failing health curtailed his central role both at the Court of Appeal and as a leading educator of judges at home and abroad.
As fair as he was polite to all sides in a dispute, Justice Rosenberg won high praise from both sides of the criminal law divide.
"He was everything you wanted in a judge," Howard Leibovich, director of the Crown Law Office (Criminal) at Ontario's Ministry of the Attorney-General, said in an interview.
Anthony Moustacalis, president of the Criminal Lawyers' Association, said that Justice Rosenberg rose to great heights from his beginnings as a superb defence lawyer who could always be relied on for mentoring and advice.
"He had an uncanny ability to synthesize disparate and apparently contradictory appellate decisions into simple, digestible legal papers, and later, after he was appointed, into helpful judgments," Mr. Moustacalis said.
Justice Rosenberg was appointed to the Court of Appeal in 1995, after serving a stint as assistant deputy attorney-general in the Ministry of the Attorney-General.
Much earlier, he had cut his legal teeth alongside another legal giant, defence counsel Edward Greenspan. The pair created a powerhouse law firm soon after they left law school that quickly became the first choice for a wide range of white-collar offenders and defendants in high-profile or heinous crimes.
Flamboyant, witty and possessed of a marvellous feel for courtroom dynamics, Mr. Greenspan handled the trial work. Justice Rosenberg's calm demeanour and encyclopedic knowledge of the law made him a natural for the appellate side of law.
"He was never interested in having his name in the spotlight," said Supreme Court of Canada Justice Michael Moldaver, a long-time friend and colleague. "He lived and breathed criminal law and had a depth of knowledge that was second to none.
Justice Rosenberg anchored a bench that was renowned for the quality of its criminal law jurisprudence. In judgments involving legendary defendants such as Steven Truscott, Romeo Phillion and Robert Baltovich, the court identified causes of wrongful convictions and insisted on rigorous standards for expert testimony and forensic science.
Gentle and unfailingly polite, Justice Rosenberg was a favourite of lawyers who appeared before him. He was invariably abreast of cases and could coax counsel to tackle the weakest points of their arguments without causing embarrassment or unduly frayed nerves.
"He knew the case, knew the law, and was always polite and respectful to counsel," Mr. Leibovich said. "He could disagree with you without being disagreeable."
The one thing Justice Rosenberg could not countenance was lawyers who abused the rules of practice or attempted to mislead the court, Justice Moldaver said.
Outside the courtroom, he risked the ire of policy-makers by speaking out against what he perceived as abuses of the state and measures that he felt could imperil the delicate balance that guarantees the rights of the criminally accused.
In a speech to a legal conference in 2009, he warned that the justice system had fallen into a state of disrepair highlighted by punitive federal legislation, underfunded legal aid programs and accused criminals who languished behind bars because of failed bail provisions.
Justice Rosenberg was always in demand on the lecture circuit. Under the auspices of the National Judicial Institute, he guided hundreds of judges through programs aimed at sharpening their ability to assess testimony and produce incisive decisions.
A tribute sent to the national judiciary and jointly authored by several NJI stalwarts – George Thomson, Adele Kent, Don Chiasson and Kate Kehoe – described Justice Rosenberg as a tireless educator who worked on projects in at least 15 countries.
"He has also been one of the most popular faculty members in Canadian judicial education, speaking at an astonishing 120 programs over 15 years," they said.