An Unconventional Path to the Bench
Justice Rowe estimates that about 40% of his career was spent in non-legal roles. He started as a procedural advisor in Newfoundland’s House of Assembly — a role he humorously describes as “being one of the penguins in the middle with the best seat in the house.” He served as a Foreign Service Officer before entering private practice.

Nation-Building Before the Bench
Justice Rowe’s pre-judicial career placed him at the centre of major national issues:

• He was deeply involved in arbitrating the maritime boundary between Canada and the French islands of Saint-Pierre and Miquelon — a decision he describes as “very much in Canada’s favour”
• Under Fisheries Minister Brian Tobin, he “formulated the strategy for the Turbot War,” a high-stakes plan that blended international law with the dramatic arrest of a Spanish vessel on the high seas
• He played an instrumental role in changing Newfoundland’s constitution, coordinating the successful amendment to create a secular public school system

Practical Consequences of Judicial Decisions
“Judges should always be mindful of practical consequences. That’s part of our role,” Justice Rowe explains. His experience in government allows him to “draw a direct line between the kind of decisions that judges make and the consequences for all of those other actors and institutions in the political structure of the country.”

When asked if colleagues seek his practical insights, he quips: “I’m not sure they ask me so much as I tell them anyway.”

The Line Between Private Life and State Intervention
Justice Rowe articulates a fundamental principle of liberal democratic societies: “People making voluntary decisions, in cooperation with others, to order their own lives.” He invokes Pierre-Elliott Trudeau’s famous statement that “the state has no business in the bedrooms of the nation,” adding: “I don’t think the state has much of a role around the dinner tables of the nation either.”

This principle has particular significance for religious organizations: “The division between church and state is something which is absolutely fundamental to Western liberal democracies.” The Court unanimously applied this principle in Wall v. Jehovah’s Witnesses.

Stare Decisis: Standing by Previous Decisions
In R. v. Kirkpatrick, Justice Rowe authored concurring reasons exploring the doctrine of stare decisis. He explains three reasons why this principle is crucial:

1. Legal certainty and stability — “People knowing what the law is in order to order their affairs properly, to make autonomous decisions”
2. The rule of law — “A certain amount of predictability is a very good characteristic of any effective legal system”
3. Legitimate exercise of judicial authority — “Judges have to play by the rules. They can’t just make it up as they go along”

When Can the Court Depart from Precedent?
Justice Rowe identifies two key circumstances:

1. When a rule proves unworkable in practice — “It seemed like a good idea at the time, but it just isn’t working”
2. When underlying social conditions have fundamentally shifted — “Not a blip from one year to the next, but something of a more fundamental nature”

Rodriguez to Carter: Societal Change in Action
Justice Rowe discusses the evolution from Rodriguez (1993) to Carter (2015) on medical assistance in dying. Two factors justified departing from precedent:

1. International experience (particularly Switzerland) demonstrated that safeguards could prevent misuse
2. “The attitudes of Canadians had fundamentally changed… It is relevant to have regard to what Canadians feel is morally acceptable and morally proper”

The Persons Case and the Living Tree
How does the Court sense societal change? Justice Rowe points to the 1930 Persons case, where Lord Sankey overturned the Supreme Court’s ruling that women weren’t “persons” eligible for Senate appointment. “He said, look, this is 1930, get with it. Times have changed, it’s not 1867 anymore.”

“Judges, we’re supposed to be independent, we’re supposed to be impartial, but we have to be, in a sense, connected to the society to fulfill our responsibilities.”

The Anti-Inflation Reference: Two Visions of Federalism
Justice Rowe highlights this 1976 case as illustrating foundational tensions in Canadian federalism. Two judicial giants clashed:

• Chief Justice Bora Laskin — argued that federal institutions must have sufficient authority “or the country cannot succeed in times of great difficulty”
• Justice Jean Beetz — warned that too readily finding federal emergency powers would diminish provincial authority “to the point where the confederation bargain will be undone”

“The particular outcome was less significant than the classic statement of those two perspectives and the trade-offs that are involved.”

The Secession Reference: A Master Class
Justice Rowe identifies this as one of the most significant cases in Canadian history. It addressed “as profound a question as you can have” — the prospect of the nation no longer existing as a unified country.

The case brought together all elements of the Canadian Constitution:

• The Constitution Act, 1867
• The Constitution Act, 1982 (including the Charter)
• Constitutional conventions (unwritten rules like the role of the Prime Minister)
• Underlying constitutional principles: federalism, democracy, protection of minorities

“It was an exercise in statecraft as to the secession question, and it was also a master class in the Canadian Constitution in all of its manifestations.”

The Wisdom of Nine
Reflecting on collegiality, Justice Rowe traces his evolution from trial judge (sitting alone) to Court of Appeal (three judges) to the Supreme Court (nine). “What I found was three heads were better than one… When you have nine, there is increased wisdom.”

“A kind of collaboration, a bona fide collegiality, smooths out the particular preferences of individuals and helps to focus on the larger goals and principles.”

When asked if colleagues still have lunch together after reading his dissents: “Always.”