Rosalie Silberman never wanted to be a judge.
But the phone kept ringing.
Would she like to be a Family Court judge? She was 29 and pregnant but sure, why not. How about heading up the Royal Commission on Women’s Affirmative Action? Yes, but let’s expand the scope to include aboriginals, visible minorities and the disabled and create a definition of equality that will one day be endorsed by the Supreme Court of Canada. Would she like to teach Advanced Jurisprudence at McGill? Sure…um, what’s jurisprudence? Would she sit on the Ontario Court of Appeal? Yeah, why not? How about joining the Supreme Court of Canada? You bet!
Rosalie Silberman Abella
It’s been an incredible journey for a little Jewish girl born in a German Displaced Persons camp to parents who’d been sent to concentration camps and were reunited before finding their way to Canada.
Justice Abella (oh, let’s just call her Rosalie) rolled into Calgary like a rock star on the final leg of a world tour.
She was witty and entertaining, intelligent and thoughtful. She shared stories about her professional and personal life with such bubbly enthusiasm it was difficult to capture them all but here are some highlights:
The SCC “gig” (her word, not mine)
Rosalie is one of four women on at the Supreme Court of Canada (SCC). She dryly assures anyone who worries that having four women and five men on the bench will damage the Court’s credibility that all of the men got there on merit.
She says the women add a sense of collegiality and teamwork which is vitally important given that every decision a judge writes is critiqued by the other eight judges before it’s ready for publication. She likens it to having eight husbands and trying to agree on where to go for dinner.
Charter challenges
Rosalie expects to see more Charter challenges on issues like freedom of religion, the right to privacy and the need for transparency in our institutions, noting that these cases like the Niqab case, will test the boundary between Canadians’ tolerance for differences and their desire to uphold core values.
The politicization of judges
In Rosalie’s view a judge’s political leanings are irrelevant; it’s more important that he or she have an open mind.
This perspective is reflected in her decisions. In the Yukon Francophone School Board case she said a judge’s prior conceptions and opinions must not close his/her mind to the evidence and the issues—“judges should be encouraged to experience, learn and understand “life” — their own and those whose lives reflect different realities.”
We hang out with people like ourselves. We need to look outside to see the “different realities” of others.
Activist judges
Rosalie notes that accusations of judicial activism are creeping back into legal discourse. She says it’s a silly term which simply means someone doesn’t like a judge’s decision. She says it’s only used to denigrate judges who expand rights, but never against judges who curtail them.
This led Ms Soapbox to reflect on Antonin Scalia, the US Supreme Court judge who was so wedded to the doctrine of originalism—the US Constitution must be interpreted as it was understood at the time of its adoption—that he could hardly abide the decisions which legalized abortion and homosexuality, both of which were criminal acts for over 200 years.
Rosalie says the real test of a Court’s judgment is: was it the right decision for its time? This would drive Antonin Scalia bonkers given his devotion to a Constitution frozen in time–a time when slavery was legal and women didn’t have the vote.
Access to justice
Rosalie posed a question: if justice is the application of the law to life but some are denied access, then what’s the point?
Justice Abella
She had harsh words for the legal profession which, she says, is unwilling to change because the system works for them. She asked where but in the legal profession is the phrase “But we’ve always done it this way” an acceptable rebuttal?
The burden of changing the profession falls squarely on the shoulders of “the grownups”, seasoned lawyers, not law schools, law students or new grads.
Advice
Rosalie has two sons. She gave them lots of advice but stayed clear of three topics: (1) what profession they should enter, (2) who they should marry and (3) when and if they should have children.
Both her sons went to law school. When the youngest complained that law school was boring, she agreed (does anyone really care whether the Egg Marketing Board is a federal or provincial enterprise?) but she wouldn’t let him quit because she believed a legal education would teach him a way to think and solve problems, expose him to great role models and as Rosalie put it, a legal education “sets your brain on fire”.
Brain on fire
Justice Rosalie Abella set our brains on fire.
She blew us kisses when she entered the hall. She regaled us with witty and thought provoking stories and personal anecdotes. She graciously accepted her “thank you” present—a Justice Abella 2016 Prairie Tour T-shirt—and modeled it to thunderous applause before leaving the stage.
The audience filed out of the hall knowing that the future is bright for law students who believe in themselves and seek out the job that’s right for them. Those of us with law degrees (“the grownups”) decided to shake off the inertia that’s swamped our idealism and see what we could do to revitalize the profession.
I’m betting Rosalie Abella never wanted to be a rock star, but she’s proven herself to be one in every sense of the word.
Susan on the Soapbox 
Susan, it sounds like Justice Abella was an amazing and inspiring speaker. I enjoyed reading about her.
Joanna, what I loved about Justice Abella was that she wasn’t afraid to share her personal story with us. Her dad became a lawyer in 1938. He married her mom on Sept 3, 1939. They spent 4 years in separate concentrations camps. The Nazis killed their 2 year old son. Her mom rescued her dad by sneaking into where he was being held (I think this was after the war) as part of the garbage detail in the middle of a typhoid outbreak. Rosalie came from a holocaust family but she says her life wasn’t full of demons because they moved to Canada and it was a wonderful country.
Amazing woman. Amazing family.
Quite a fascinating person! I would have loved to have heard her speak too.
Linda, Justice Abella’s story is fascinating. When her father got to Canada he asked the Law Society what exams he had to write in order to practice law. They told him he couldn’t write anything because he wasn’t a Canadian citizen and only Canadian citizens could practice law. The process to become a citizen was 5 years long, he had to support his family so he became an insurance salesman. Later when Rosalie headed up the Royal Commission she developed a definition of equality that the SCC used in the Andrews v Law Society case. In that case the Law Society denied a a foreign trained lawyer the right to practice because he wasn’t a Canadian citizen. The SCC used Rosalie’s definition of equality to overturn the Law Society’s decision and Andrews was allowed to practice. Rosalie became teary when she told this story and we all knew why. The injustice that befell her father had been rectified, in part, by his daughter. It was a very moving moment.
That is touching. She sounds like she was quite motivated in her drive for equality.
Interesting profile. One of the ways in which I feel our Supreme Court is superior to the one south of the border, is that it is not so rigidly ideological. Left-leaning justices can make rulings in favour of property rights, and right-leaning justices can make rulings in favour of social justice, without either one suffering from whiplash. Our Court’s rulings seem to be based on the law, not on ideology, and so we have recently seen Conservative appointees make rulings against a Conservative government. It is also flexible, not completely beholden to past decisions; this is how we got from Rodriguez to Carter.
Of course, not being a lawyer myself, this comment is only based on a hopefully-educated layperson’s perspective, but then, the Court is not truly there for the lawyers but for all Canadians.
Jerry, I agree that a judge’s political leanings have less influence on his decisions here than in the US. Justice Abella said American lawyers have told her that when they’re before the US Court on what we’d think of as a “progressive” issue they’ll pitch their whole case to Anthony Kennedy, a judge who’s viewed as balanced, fair and not ideologically driven and who is the swing vote in many cases. Canadian appellants don’t pitch to one judge on the bench because it doesn’t matter as much who appointed them, they still make their decisions based on the law. Take for example Harper’s attempt to appoint Marc Nadon to the SCC. The SCC ruled against Harper in a 6-1 decision. Three of the six who refused to support Harper were Harper appointees. Talk about ultimate justice!
Anonymous I’ve got to admit I didn’t quite follow the connection between Lucinda and Rosalie Abella…what am I missing here?
Forgive me interrupting. I think the musical reference is to reasoned judgement . . . . or as Strunk and White might have put it, if only the law was clear, concise and complete. Or as clear as you and Rosalie Silberman see it.
I am struck you can . . . characterise her in your short comment so precisely. It seems to me both of you would be the kind of person it would be good to be able to call friend. B-]
“The silver high-school, the silver law-school, just couldn’t go no further.”
My mind interpreted this as a description of the limits of social philosophy. No bad feeling intended for either you or Rosalie.
Anonymous, no offense taken, I missed the silver law-school reference all together.
Jack: thanks for the Strunk and White reference…yesterday was one of my less clear days.
It’s a lovely song though, even when the listener (me) is in a fog.
Thanks guys!
Wow, that Randy Newman had a song for every eventuality. Thanks Anonymous. I enjoyed these clips.
Justice is an wonderful concept and I have great respect and admiration for Rosalie and others but just like most everything else in our lives it only seems to work for the elites and those that manage to have power in our society. The URL below is just one more example of how it works.
http://www.cbc.ca/news/business/canada-revenue-kpmg-secret-amnesty-1.3479594
Try not to pay your taxes and see if you get the same treatment?
Carlos, the KPMG link perfectly illustrates your point. I don’t think Justice Abella would look too kindly on the CRA, a government agency, allowing high net worth people who are in breach of the Income Tax Act to slip out of the noose by using the “voluntary disclosure” process because the process doesn’t seem to apply in this case. And while I understand why the CRA would choose to settle the case now rather than be in litigation for 3 years and settle it then, the message is clear–if you have the money to buy an expensive lawyer the government will bend over backwards to find a solution that works for you…and if you don’t you’re hooped.
Susan and CB,
I also find it disheartening that people with so much work so hard to give back so little to the nation that enriches, supports and protects them, but I’m not sure the CRA made a mistake going easy on the clients of KPMG in this case; after all, weren’t they assured by a prestigious, internationally accredited accounting firm (apparently with the ear of the PM of the time) that what was happening with their money was entirely safe, and legal? And shouldn’t that speak to ‘due diligence’? I understand that it stretches credibility to maintain that such high net worth people would be lacking savvy enough to see when a deal was too good to be true, but on the other hand I know very few people, even remarkably wealthy ones, who know the entirety of the Canadian tax code like the back of their own hand.
That said, the fact that KPMG itself is still allowed to operate in Canada without sanction after perpetrating such a scam is another kettle of fish, and one right where my, yours and Carlos B’s outrage converge.
ps
heheh, I know someone on the Egg Marketing Board who may have something to add to the comments section of this article ,)
GoinFawr and Carlos: to add fuel to the fire, I just learned that a very well known Alberta businessman is leaving the country because he can’t abide Notley’s tax increase for the wealthy. This person made out like a bandit under the PC regime and, to be fair, donated millions to the community as well, however he says the Notley tax increase is the last straw and he’s outta here. I think it’s an ideological move more than anything else, but hey, what do I know.
Sam: You’re right that no one, not even the wealthy, can keep up with all the changes to the tax code. I suspect one reason why KPMG worked so hard to settle this claim on behalf of its clients is that if they didn’t their clients would have sued them for everything they were out of pocket and then some. The monetary damages would have been huge and the hit to KPMG’s reputation and client base would have even more significant.
I feel more than an outrage. I feel that after witnessing this for at least 3 decades that we are all a bunch of clowns that cannot even change something as basic as this injustice and third world behaviour. Furthermore we have the courage to call ourselves a democracy – what an illusion and what a lack of self confidence and ignorance we all live in.
Sounded like a fun evening. A portrait of the legal profession as painted by a true artist. Wish I was there. With my luck the only legal lecture I’ll get to hear will be one put on by Ezra Levant.
Ronmac: That was a funny comment. I tried to imagine what an Ezra Levant lecture would be like…I came up with absolutely nothing. (I think my mind went on strike).
I was one of the law librarians working in the Judge’s Library that served the Ontario Court of Appeal for a few years when Madame Justice Abella had her office across the hall from the librarian. Her office (like Chief Justice R. McMurtury) was filled with original art. Her selection of art was happy, bright colours, bold and youthful. She had a effusive personality that sparkled naturally amongst more sober judges. (Justice McMurtry filled his office with his own oil paintings that he did on his trips. The framed canvasses glowed which is what oil paintings do with strong strokes.) Justice Michael Moldaver had his office beside or near hers….Justice Rosenburg down the hall..
It was a privilege to be of service the judges…just at the time we started the courts’ first ever website and the first time these same judges realized their decisions would be posted on the open Internet for free. This was mid-1990’s.
I digress…
sorry, across the hall from the library…
Jean, thank you for the additional insight into Justice Abella. Your description of her art as being happy, brightly coloured, bold and youthful fits with my impression that she is optimistic and filled with hope.
What an honour it must have been for you to be able to work with the best legal minds in the country!
You don’t understand I am actually obsessed with her. I think she is the best thing to happen to Canadian politics. In every Supreme Court case I look up she’s always on the right side (in my opinion of course) even when she doesn’t win the majority, like in the niqab case. I’ll be sad to see her retire when she turns 75 this year but she has had an amazing and inspiring career.