Social Policy in Ontario

Supreme Court’s Rosalie Abella prepares to retire as her legacy of defining equality seems built to last

Posted on March 7, 2021 in Equality Policy Context

— Authors: Tonda MacCharles

TheStar.com – News/Canada
March 7, 2021.   By Tonda MacCharles, Ottawa Bureau

OTTAWA—On a cold November evening at a live concert that revived long-lost Jewish klezmer music from 1930s Berlin, Justice Rosalie Abella’s eyes danced.

Onstage, players performed songs from a secret trove of scores and recordings that had been spirited into hiding on Nov. 9, 1938. Kristallnacht — the “Night of Broken Glass” when Nazis torched synagogues, vandalized Jewish homes, schools and businesses, and unleashed a murderous wave of violence throughout Germany that ended only seven years later.

On a wintry Ottawa night in 2017, the rescued music, discovered only decades later in Israel, came to life.

Next to the Supreme Court of Canada’s senior judge sat her husband Irving Abella, grinning from ear to ear. He says Jewish music is joy in a minor key.

The judge, daughter of two Holocaust survivors and an accomplished classical pianist, later whispered a confession: “I’m more Broadway and Itchie’s more klezmer.”

That’s her nickname for Irving Abella, the Canadian historian she chased to marry, who co-authored the definitive chronicle of Canada’s shameful indifference to the plight of Jews fleeing Nazi Germany.

No one could accuse Rosalie Silberman Abella of indifference.

Her life’s work has been about defying indifference — to inequality, to discrimination, and to injustice.

Now the first Jewish woman on the Supreme Court of Canada is on the verge of mandatory retirement when she turns 75 on July 1.

Her 17-year tenure at the top court has touched on all areas of law.

She is a constitutional law and human rights expert, and a fierce defender of the rights of women, people with disabilities, and religious minorities, a judge who frequently cites international law and comparative law in her rulings.

But Abella is not yet ready to take the measure of a judicial career that has spanned 45 years. She’s declined interviews until after the court’s last case in the late spring. She’ll continue to write on appeals she heard for up to six months afterwards. Even then, it’s unlikely Abella will put down her pen.

It’s just unclear where she’ll next make her mark.

Still, Abella’s biggest legal legacy, many experts believe, is her contribution to shaping Canada’s view of equality.

Abella literally defined it in a groundbreaking report in 1984 after leading a year-long solo royal commission of inquiry into workplace barriers faced by women, disabled people, visible minorities and Indigenous persons.

She had broken barriers herself. Only a few years earlier, in 1976, Abella was appointed to the Ontario Family Court. She was 29, the youngest, and the first pregnant, person to become a judge in Canada, also the first Jewish woman to sit on a court.

Abella juggled the job of raising sons Jacob and Zachary, now also lawyers, as she criss-crossed the country on a shoestring budget.

In her final report, Abella created the term “employment equity.” It was a “a distinctly Canadian concept” to address inequality, based on inclusion and accommodation of differences, said Carol Agocs, professor emeritus at University of Western Ontario.

Abella rejected the American view that equality means the same or identical treatment of individuals no matter what their differences. She rejected too the American legal framework for affirmative action — using quotas after a finding of discrimination, an approach Abella said was a fault-based remedy, rather than something to be practised proactively by all employers.

That notion — of equal rights, dignity and fairness — was seeded by her family’s harrowing personal story.

Abella was born in the shadow of the Holocaust.

When Germany invaded Poland in 1939, her father Jacob Silberman, a trained lawyer, and his wife Fanny Krongold were sent to different concentration camps after entrusting their two-year-old son Julius to a friend’s safekeeping. The boy ended up with his paternal grandparents as the Nazis were rounding up Jews. The couple lost their son in the Treblinka death camp, and Silberman lost both his parents and three younger brothers as well. After the war the couple was reunited, their daughters born in a displaced persons camp in Stuttgart: Rosalie in 1946, her sister Toni two years later.

The family came to Canada as refugees when Abella was four. She often tells audiences that when her father, not yet a Canadian citizen, was forbidden from working as a lawyer, she decided she would one day go into law.

She was one of only five women among 150 students in her University of Toronto law school class, but Abella says she did not face discrimination, and that her work on the royal commission was eye-opening.

Wayne MacKay, professor emeritus at Dalhousie University’s Schulich School of Law and a former director of the Nova Scotia human rights commission, says it was a pioneering report that was “hugely impactful for human rights commissions right across the country.”

Agocs says it influenced constitutional provisions or legislation later adopted in South Africa, Northern Ireland, New Zealand, Australia, Quebec and Ontario.

It prompted Brian Mulroney’s Progressive Conservative government and his employment minister Flora Macdonald to enact the federal Employment Equity Act.

And it quickly came to influence how the Supreme Court of Canada approached human rights and discrimination. In 1987, it relied on the Abella report in a human rights case, ruling CN Rail discriminated against women in unskilled blue-collar jobs.

The high court had not yet grappled with the Charter of Rights and Freedom’s section 15, known as the equality rights section. That section prohibits discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In its first judgment on equality rights, the 1989 Andrews case, the Supreme Court of Canada ruled it was discriminatory to bar non-Canadian citizens from practising law, and relied in part on Abella’s analysis of systemic barriers.

For Abella, whose father was denied that same right, it was life and law coming full circle.

Today, employment equity programs and the tools to measure progress are at the heart of NDP MP Matthew Green’s efforts to determine whether successive federal governments have used or ignored the leverage they have to eliminate workplace barriers, especially in the case of large corporations that do business with Ottawa, and particularly for Black Canadians.

Agocs says the goal of achieving employment equity for disadvantaged groups is “unfinished business,” but she said the Abella approach is still relevant.

“We need her work today more than ever to really come to grips with systemic discrimination and systemic racism which is front and centre on our agenda where it needs to be,” said Agocs.

In 2004, Abella was named along with Louise Charron to fill two Ontario vacancies on the Supreme Court of Canada, bringing the number of women on a nine-member bench to a historic high of four — a milestone hailed by then-chief justice Beverley McLachlin who hammered the point: “They. Are. Women.”

It was the eve of the federal reference case which asked if equality in law guaranteed same-sex marriage.

Coming from the Ontario Court of Appeal, Abella had already ruled in favour of pension rights and spousal support rights for same-sex couples.

At the top court, her analysis continued to shape Canadian jurisprudence.

In 2012, Abella wrote for the majority in favour of a school student with severe dyslexia against a school board that failed to accommodate his learning disability and provide meaningful access to education. The case, Moore v. British Columbia (Education) “is one of the leading cases on the meaning and definition of equality in a school context and is used by human rights commissions right across the country,” said Dalhousie’s Wayne MacKay.

Constitutional law expert Bruce Ryder, professor at Osgoode Hall Law School at York University, says Abella’s judicial work on equal rights for women culminated in a ruling last fall known as Fraser v. Canada, where Abella wrote for the majority and found an RCMP pension scheme discriminated against women who weren’t allowed to buy back pension credits after job-sharing to care for their children.

Ryder called the ruling “Justice Abella unleashed.” It summed up 40 years of her thinking on how laws should be analyzed along with the insights of generations of Canadian feminist scholars who followed in her footsteps, he said. “It is a striking opinion that will make a lasting contribution to the interpretation of equality rights.”

It also drew sharp criticism from her fellow judges Russell Brown and Malcolm Rowe, who have frequently, with Justice Suzanne Coté, dissented from decisions penned by Abella. Brown and Rowe wrote: “Substantive equality has become almost infinitely malleable, allowing judges to invoke it as rhetorical cover for their own policy preferences in deciding a given case.”

Through the years, Abella has been a lightning rod for small-c and large-C conservative legal critics in the Charter era. They slam her as an “activist” judge; criticize her for failing to respect boundaries between courts and legislatures; they say she doesn’t show deference to the choices of elected politicians, or to the text of the law; that she doesn’t apply proper legal reasoning to her analysis; and reaches too often for international comparisons to import.

Others disagree. Ryder says “some of those voices” are not representative of the consensus views in the profession, and notes that it’s been “well-established” that the Charter grows out of an international rights tradition and should be interpreted in line with Canada’s international obligations.

Ottawa lawyer Eugene Meehan who specializes in Supreme Court litigation says Abella has been “a driving force — indeed a juridical lighthouse — behind the development of Charter jurisprudence.” And in looking to international law, she’s made the court “less insular” than, say, the United States Supreme Court.

But Meehan says for all Abella’s embrace of international law, “the globalization of the court may not persist” after her departure. The majority in a recent case “called her out for the prominence she gave to international and comparative law in the Charter interpretation process.”

Former Ontario attorney general Roy McMurtry, who first appointed Abella to the Ontario family court, was one of the key players in the patriation of the Canadian Constitution and drafting the Charter. Now retired, he dismisses the critics. Abella, he said, has “played an important role” in breathing life into that charter, and is recognized around the world for it.

Abella could paper her office walls with her dozens of national and international awards and honorary degrees. Instead, those walls are mostly covered in exuberantly colourful paintings and prints.

One award, however, appears particularly meaningful.

Last June, Germany gave her the Knight Commander’s Cross of the Order of Merit — one of the nation’s highest honours, reserved for those just below head of state. It was awarded by the German President Frank-Walter Steinmeier in recognition of Abella’s personal story, and “her outstanding achievements for human rights, for rule of law, minority rights, women’s rights, and also for the development of good relations between Canada and our supreme court,” said Germany’s Ambassador to Canada, Sabine Sparwasser.

In an interview, Sparwasser admits she was uncertain when she approached Abella to ask if she would accept the recognition.

“I thought this woman has received every possible honour in the world … and I thought, OK, what’s the reaction going to be?”

“It was an amazing moment,” Sparwasser said. “She was very moved, actually … to have the country that has committed the Holocaust and caused so much desperation to her family but the country in which she was born, then to have honoured her in this way, for this achievement in human rights. I think it felt it felt like a circle closing. That’s what she said.”

Tonda MacCharles is an Ottawa-based reporter covering federal politics for the Star.

https://www.thestar.com/news/canada/2021/03/07/supreme-courts-rosalie-abella-prepares-to-retire-as-her-legacy-of-defining-equality-seems-built-to-last.html

Tags: crime prevention, disabilities, ideology, Indigenous, jurisdiction, rights, women

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