Shares her mes­sage with the world

The Canadian Jewish News (Montreal) - - News - — JEN­NIFER TZIVIA MA­CLEOD

From the heights of the Cana­dian le­gal pro­fes­sion, the Hon­ourable Ros­alie Sil­ber­man Abella is now spread­ing her wings and tak­ing her mes­sage in­ter­na­tion­ally. Af­ter a life­time of firsts – Canada’s first preg­nant judge in 1976; first Jewish fe­male Supreme Court Jus­tice in 2004 – last year, Abella be­came the first Cana­dian woman to re­ceive an hon­orary de­gree from Yale. And just this May, she de­liv­ered the com­mence­ment ad­dress at Bran­deis Univer­sity.

In her ad­dress, how­ever, Abella ad­mit­ted she was “deeply con­cerned about the state of jus­tice in the world.”

Born in 1946 in a dis­placed per­son’s camp, Abella has fought for hu­man rights through­out her ca­reer.

But now, as she told Bran­deis grads, “Here we are… watch­ing ‘never again’ turn into ‘again and again,’ and watch­ing that won­der­ful demo­cratic con­sen­sus frag­ment, shat­tered by nar­cis­sis­tic pop­ulism, an un­healthy tol­er­ance for in­tol­er­ance, a cav­a­lier in­dif­fer­ence to equal­ity, a de­lib­er­ate am­ne­sia about the in­stru­ments and val­ues of democ­racy, and a shock­ing dis­re­spect for the bor­ders be­tween power and its in­de­pen­dent ad­ju­di­ca­tors like the press and the courts.”

In many ways, Abella was born to the law. Her fa­ther, Ja­cob Sil­ber­man, re­ceived a mas­ter’s de­gree in law from Cra­cow’s renowned Jagiel­lonian Univer­sity, and af­ter the war, was ap­pointed by U.S. forces to over­see le­gal ser­vices for dis­placed per­sons in Ger­many.

In her Bran­deis talk, Abella called her own birth an act of “breath­tak­ing op­ti­mism,” af­ter her par­ents lost a two-yearold son dur­ing the war.

Af­ter the fam­ily came to Canada, how­ever, Sil­ber­man was barred from the law de­spite glow­ing cre­den­tials be­cause he was not a cit­i­zen. The mo­ment young Ros­alie heard that, at age four, she made up her mind.

In a 2014 con­ver­sa­tion on C-SPAN along­side Ruth Bader Ginsburg, as­so­ciate jus­tice of the U.S. Supreme Court, and Dorit Beinisch, former pres­i­dent of Is­rael’s Supreme Court, Abella said, “When peo­ple said, ‘What are you go­ing to be when you grow up?’, I said, ‘A lawyer.’ I knew no women who were lawyers. All I knew was he couldn’t be it, and he wanted to be it, and I would be it.”

At first, she had no idea of the strug­gle that would en­tail. “As an im­mi­grant, you have zero ex­pec­ta­tion of en­ti­tle­ment… It is all about work­ing re­ally hard to pay back the coun­try for let­ting you be a mem­ber, work­ing re­ally hard in school, so you are the top stu­dent in school.”

Ja­cob Sil­ber­man died in 1970, one month be­fore Abella grad­u­ated from law school.

Later, when she be­came preg­nant with her first son, Ja­cob, born in 1973, she knew no other moth­ers who were lawyers. But she per­se­vered, and in 1976, only 29 and preg­nant with her sec­ond son, Zachary, she was ap­pointed to On­tario’s Fam­ily Court, be­com­ing the first preg­nant judge in Cana­dian his­tory. Both sons have be­come lawyers.

Be­sides the fam­ily con­nec­tion to the law, Abella also brings the ex­quis­ite sen­si­tiv­ity of an out­sider’s point of view. “I was fe­male, Jewish, and an im­mi­grant, in a male pro­fes­sion… It can be a great ad­van­tage to un­der­stand that you’re dif­fer­ent, you’re never go­ing to be like ev­ery­body else, and that’s good. En­joy the fact that you’re dif­fer­ent.”

Through­out her ca­reer, Abella has cham­pi­oned women’s and mi­nor­ity rights. In 1984, she served as the sole com­mis­sioner of the fed­eral Royal Com­mis­sion on Equal­ity in Em­ploy­ment, defin­ing “em­ploy­ment eq­uity” and other terms which have set a prece­dent now adopted by other coun­tries as well.

Abella has writ­ten over 90 ar­ti­cles and writ­ten or co-edited four books, and is the sec­ond long­est-serv­ing judge on the Supreme Court bench, af­ter Chief Jus­tice Bev­er­ley Mclach­lin.

Her hus­band Irv­ing, a pro­fes­sor at York Univer­sity and former pres­i­dent of the Cana­dian Jewish Congress, is well known for chron­i­cling the his­tory of Canada’s Jews.

Abella’s ap­point­ment to the Supreme Court in 2004 by Prime Min­is­ter Paul Martin was met with alarm by con­ser­va­tives. At the time, An­drew Coyne of the Na­tional Post wrote that, “The ap­point­ment of a Supreme Court judge should not be an oc­ca­sion to score po­lit­i­cal points or to ram a con­tro­ver­sial choice down the op­po­si­tion’s throats.”

In 1998, with the On­tario Court of Ap­peal, Abella de­ter­mined that “spouse” in the In­come Tax Act in­cludes same-sex part­ners, lead­ing to changes in dozens of fed­eral statutes while op­po­nents ac­cused her of us­ing the ju­di­ciary to cre­ate law.

There has been some spec­u­la­tion about whether Abella is headed for the chief jus­tice seat af­ter Mclach­lin re­tires in De­cem­ber.

Tra­di­tion­ally, the long­est-serv­ing mem­ber usu­ally be­comes chief jus­tice, but an op­pos­ing tra­di­tion in­di­cates that ap­point­ments al­ter­nate be­tween Que­bec and non-que­bec jus­tices. To date, Prime Min­is­ter Justin Trudeau has been silent on the ques­tion.

Look­ing back, Abella said on C-SPAN, she en­tered the law at an ideal time. “To be a lawyer in an era when it was all about le­gal change, so­cial change, jus­tice change, when you had all these groups scream­ing for en­try into the main­stream… that was a priv­i­leged time to be a lawyer.

“Out of the ba­nal­ity of the ’50s,” she said, “you had the ’60s, which was an awak­en­ing of so­cial in­sti­tu­tions and ar­range­ments… the women’s move­ment, race. And then the ’70s came along, and we added abo­rig­i­nal is­sues, in­dige­nous is­sues, then sex­ual ori­en­ta­tion. We were a gen­er­a­tion in which change was all around us.”

To­day, de­spite her con­cern for jus­tice world­wide, Abella be­lieves change is still pos­si­ble through heed­ing the lessons of World War II.

It is time to re­mind our­selves why we de­vel­oped such a pas­sion­ate and, we thought, un­shake­able com­mit­ment to democ­racy and hu­man rights.

As she told Bran­deis grads, draw­ing on both per­sonal and le­gal ex­pe­ri­ence, “It is time to re­mind our­selves why we de­vel­oped such a pas­sion­ate and, we thought, un­shake­able com­mit­ment to democ­racy and hu­man rights, to re­mem­ber the three lessons we were sup­posed to have learned from the con­cen­tra­tion camps of Europe: in­dif­fer­ence is in­jus­tice’s in­cu­ba­tor; it’s not just what you stand for, it’s what you stand up for; and we can never for­get how the world looks to those who are vul­ner­a­ble.”

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