Ottawa Citizen

Bias deeper than one's skin colour

Justice Rosalie Abella's life a lesson in dealing with bias, writes

- Jon Khan. Jon Khan (@jon_ckhan) is a lawyer completing his Ph.D at Osgoode Hall Law School with a focus on judicial decision-making.

Last Friday, Canada's longest-serving Supreme Court judge, Justice Rosalie Abella, heard her last case. She must retire on July 1. Canadians increasing­ly hear that her successor must be “racialized.” Some say Canada's “allwhite” Supreme Court must remedy its embarrassi­ngly late historical first: Canada must finally appoint a racialized judge.

All countries need diverse judiciarie­s. But the idea that Canada's Supreme Court has never had a racialized judge is mistaken. Canada has already had five racialized Supreme Court judges. And significan­t racism permeated their Jewish lives. Justice Rosie Abella is one of them.

Despite her fair skin, the world has struggled to see her — a Jewish woman — as “white.” Mere months before her birth, Adolf Hitler was still ridding the world of Jews because of their alleged subhuman, inferiorit­y to “white” people.

Nazis didn't metaphoric­ally apply the term subhuman or “Untermensc­hen” to Abella's family. They used it literally. By the time Abella was born, Nazis had murdered most of her family, including her brother. Only her grandmothe­r and parents survived.

Abella didn't begin her life as a privileged “white” person. She began it as a racialized newborn in a displaced-persons camp because her parents had no home left to go to.

Camp conditions for displaced people were frequently deplorable: often unsanitary, overcrowde­d, and even housed on former concentrat­ion camp sites. Displaced people were grouped by nationalit­y. So survivors even had to live alongside the very people who'd collaborat­ed with Nazis to murder six million of their fellow Jews.

Abella didn't escape this systemic racism when she left Germany. Canada did accept her family as refugees. But it really didn't want their “Jewishness.” Canada was a deeply anti-Jewish country when Abella entered it. Of all states during the Holocaust, Canada maintains one of the worst Jewish refugee-receiving records. When asked how many Jewish Holocaust survivors Canada would accept, a senior Canadian official offered a response that many Canadians would have likely agreed with at the time: “None is too many.”

Justice Abella's public reflection­s on these origins reveal the profound impact they still have on her life: “no part despaired more, than the Jew in me. … Who I am, what I am, what I believe in, and what I hope for, all started with the Holocaust. … Nothing makes me prouder than to be the child of Holocaust survivors. … Those of us lucky enough to be alive and free have a particular duty to our children to do everything possible to make the world safer for them than it was for their grandparen­ts so that all children regardless of race, religion, or gender can wear their identities with pride, in dignity, and in peace.”

What Abella's origin story and the lives of her four racialized Jewish Supreme Court colleagues — Justices Bora Laskin, Morris Fish, Marshall Rothstein, and Michael Moldaver — show us is this: Skin colour isn't a requiremen­t for being racialized.

A racialized person is anyone society racializes and marginaliz­es — anyone who's falsely treated as racially inferior because of alleged biological, genetic or arbitrary phenotypic difference. Being racialized simply isn't a binary that only some skin tones experience. Anyone who has experience­d racism can be racialized, including fair-skinned Jews.

Calls for the appointmen­t of Canada's first racialized or “non-white” Supreme Court justice appear to endorse a different, more essentiali­st view of skin colour, race, and ethnicity. Skin colour is treated as both evidence of and a requiremen­t for being racialized even though race is a scientific­ally false construct. As Ta-Nehisi Coates, the prolific writer on race and racism, reminds us, “notions of race are the product of racism, not the other way around.”

Perhaps imagining Abella as a little racialized girl born into extreme racism, dehumaniza­tion, death and countries that didn't want her is difficult. But racializat­ion is her life and why she dedicated it to protecting and finding equality for all races, religions, genders, and identities — including for 17 years as Canada's first racialized female Supreme Court justice.

Her career showcases how that dedication profoundly affected Canada's legal system. That diversity of life experience and an earnest desire to serve humanity produce compassion­ate, empathetic, and progressiv­e judging. Justice Abella's judicial decisions showcase all three, especially for women, LGBTQ+, and marginaliz­ed people. She never shied away from advocating for outcomes that favoured racialized people or anyone society marginaliz­ed. When the law required a progressio­n to help people, she tried to find it. Her life's work was defying indifferen­ce and pursuing equality.

Whoever Justice Abella's successor is — whether you're brown, white, Black, Indigenous, mixed heritage or however you see yourself — I wish you well. You've huge shoes to fill, and I know you'll try. Canada is lucky to have you.

 ?? CAROLINE PHILLIPS FILES ?? Supreme Court of Canada Justice Rosalie Abella, left, with Sharon Johnston, wife of then-governor general David Johnston in 2016; Abella lost most of her family in the Nazi Holocaust.
CAROLINE PHILLIPS FILES Supreme Court of Canada Justice Rosalie Abella, left, with Sharon Johnston, wife of then-governor general David Johnston in 2016; Abella lost most of her family in the Nazi Holocaust.

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