Abella looks back at barrier-breaking career on top court,
Supreme Court of Canada Justice steps away 17 years after she joined the bench
OTTAWA—Supreme Court of Canada Justice Rosalie Silberman Abella is not about to throw off her black judicial robes and bare her soul.
On the eve of her retirement in a rare interview after hearing her final case at the top court, Abella is nothing if not judicious when the Star probed her views on several of the thorny questions about the post she vacates on July 1.
Is it time to name an Indigenous judge to the Supreme Court of Canada? Should sitting judges receive anti-bias training in sexual assault myths or how systemic racism operates? Should bilingualism be a job requirement for all judges on the country’s top court?
Abella, who spent much of her own 45-year judicial career breaking glass ceilings and advancing equality rights, steps carefully around the political divides on each issue.
But make no mistake: Abella believes judges need to reflect the country at large. And not just its gender makeup either.
“Justice is not the purview of two genders,” she said. “Justice belongs to the country, to people. And that means that the deliverers of justice, the lawyers, the professors, the public servants and the judges should, to the extent possible, be reflective of the public that they serve.”
Abella will soon leave Ottawa, having made a major impact on all areas of Canadian law, but especially equality law.
“Her departure will leave a huge hole and a massive legacy,” said constitutional law expert Bruce Ryder, professor at Osgoode Hall Law School at York University. He describes Abella as “the most prominent member of the Canadian court globally,” known for “her strong progressive role as a leader in human rights.”
She was the youngest and the first pregnant person to become a judge in Canada, and the first Jewish woman to sit on a Canadian court when she was named to the family law division of Ontario provincial court. That’s where she said she heard her toughest cases, made the hardest decisions, and learned what it was to seek to deliver justice and keep an open mind.
“I was a young mother of a baby, and a three-year-old. And I had to decide almost every day for seven years whether to take other people’s babies away,” she said. “Those were wrenching decisions for me.”
Abella says she will miss a wide circle of friends from the top court, and across government, academia, the diplomatic world and media. But she doesn’t feel free to fully speak her mind.
“I will never forget the fact that there will be people who see me and see anybody who retires — you’re a former judge but that doesn’t leave you completely free to abandon all of the inhibiting parts that say ‘be careful.’ I will always, I think, carry that with me because of the repercussions on the people who are still doing it.”
Abella was the first Jewish woman named to the Supreme Court of Canada, named by former prime minister Paul Martin and his justice minister Irwin Cotler. The appointments of her and Louise Charron in 2004 brought the number of female judges to a record high of four.
Abella points to “enormous progress” made by women at the highest judicial levels.
The Supreme Courts of Canada and the United States first saw women appointed to the top bench in 1981. Since then, Canada has had 10 women on its highest court, while the Americans had only five.
“We need to do that with other groups,” she said.
“People want to see themselves up there when we’re judging them. They want to see themselves reflected, not because we’re there as their representative. We’re not. We’re there as the public’s representative. But I think time, as it did by bringing more women into the profession and into the judiciary, will and should have more members of these formerly excluded groups represented in the judiciary at all levels.”
Abella won’t say if the law should guarantee Indigenous representation on the high court, or if time alone will suffice.
“I don’t want to say anything that’s going to be harmful to the prospect down the road. I really don’t know.”
And on the question of bilingualism, Abella — who is bilingual — likewise doesn’t want to offer her opinion whether all Supreme Court judges should be.
“I just really don’t want to get into a political debate about something like that,” she said.
The federal Liberals are proposing to change the Official Languages Act to impose such a job requirement.
It took four years for Parliament to agree to pass a law to require judicial training in sexual assault law, rape myths, racial, gender and other stereotypes, Abella says she has never understood how judicial training could be anything “but beneficial.”
“Of course, it’s a good idea,” she said. There have always been courses for new judges and for sitting judges about “the social environment” they’re going to be judging, she added.
“They are never courses that tell you what you’re supposed to think about a particular case, but they’re environmental; they are the social context in which judges will be making their decisions.”
Next fall, Abella will take up a threeyear teaching post at Harvard Law School. Why Harvard? Why outside Canada?
“For the same reason that I had done just about everything else in my professional life: they asked,” she quips, adding, “I was very honoured to be asked, I had no plans for my retirement.”
Abella said she’ll likely also be teaching at University of Toronto law school. The last time she taught was at McGill University from 1988-92 when she also juggled roles on Ontario’s labour relations board and law reform commission.
Abella said she wants to explore “what is left to think about in the justice world” and how it intersects with public policy.
“Can we figure out a way to develop a justice consensus globally, the way we had one after the Second World War? Can we get that back?”
On Friday, Chief Justice Richard Wagner addressed Abella at a socially-distanced “swearing-out” ceremony, 17 years after she joined the bench.
“You have served Canada and Canadians with a unique panache, and you are leaving the court with an honourable legacy,” Wagner said.
Abella became emotional, saying her career as a lawyer and a judge “have been incredibly intellectually fulfilling but my real life, the life of my heart rests on the love I feel for my family and the love they give back.”
She tearfully thanked her “unconditionally encouraging husband” historian Irving Abella, and wept as she remembered her parents, Jacob Silberman, a trained lawyer who never got to practise in Canada, and her mother Fanny Krongold.
They survived the Holocaust but lost their two-year-old son Julius, as well as both Silberman’s parents and his three younger brothers at the Treblinka death camp.
“They brought my sister and me to Canada in 1950 with the highest hopes for a happy life. They got it. And they gave it to me. I’ve been so lucky, and so on the eve of my 75th birthday on Canada Day I say to Canada on their behalf, thank you. Thank you for giving them the life they dreamed of, for giving me a life beyond their wildest dreams.”
“Justice belongs to the country, to people.”
ROSALIE SILBERMAN ABELLA SUPREME COURT OF CANADA JUSTICE