A6 MONDAY, AUGUST 26, 2019 S LATIMES.COM
nize — 5’9’’, blonde, and very
skinny.”
Let’s try this again: Meet Rosie
Silberman Abella, who measures
in at barely 5-foot-2, is not blonde
and probably once was very
skinny. She may speak truth to
power, but not in introducing
herself to a visiting reporter.
At any height, Rosie Abella is a
towering legal figure, quoted by
politicians, cited by scholars,
decried by critics and embraced
by minorities, gays and the dispos-
sessed who have relied on her as
their vigilant and visionary cham-
pion.
Martha Minow, onetime dean
of Harvard Law School, calls her
work “pathbreaking.” Robert
Post, former dean of the Yale Law
School, salutes Abella as “a jurist
who respects the rule of law and
yet who understands that the
purpose of the rule of law is to
facilitate human flourishing.”
In many ways, she is a meta-
phor — her distinctiveness defin-
ing the differences between the
American Supreme Court and its
(distant) Canadian cousin.
“The two courts may seem
similar, but the differences are
substantial,” says Bernard J.
Hibbitts, a former Canadian
Supreme Court clerk and a profes-
sor at the University of Pittsburgh
School of Law. “The American
court likes to think of itself as more
stately and more grand.”
The Canadian court, he adds,
“is more willing to take into con-
sideration international law than
the American court, which is more
insular.”
The American court can over-
turn laws, but in Canada parlia-
ments can exempt some legisla-
tion from judicial review for up to
five years. The Canadian court has
four female justices, the U.S. court
three. Justices are appointed by
the prime minister and not for life.
Unlike the U.S. court, it permits
proceedings to be broadcast.
A member of the court since
2004, Abella is both a creature of
the Canadian political and legal
system and a molder of it.
Daniel Urman, a Northeastern
University specialist on the U.S.
Supreme Court, says, “Abella is
Canada’s version of Sandra Day
O’Connor, Ruth Bader Ginsburg
and Thurgood Marshall: She was a
pathbreaking ‘first’ in many di-
mensions.”
Above all, she is an activist,
without the apologies American
activist jurists now make. That,
too, is a difference in the roles of
the two North American high
courts.
Until the 1980s, the Canadian
court was a relatively passive
participant in the constitutional
process, largely because its juris-
diction was principally confined to
the division of power between
Ottawa and the provinces.
But with the adoption of the
Charter of Rights and Freedoms
in 1982, Canada went from being a
parliamentary to constitutional
democracy, and the emphasis of
the court went from “being the
arbiters of legal federalism to
being the guarantors of human
rights,” said Irwin Cotler, a former
minister of justice. “This hap-
pened not because the court
sought that power,” he says, “but
because the Charter invested that
power in it.”
Since then, the Canadian
Supreme Court, which once fol-
lowed the U.S. Supreme Court,
has been quicker to embrace
change on core social issues, such
as abortion, gay marriage and
assisted suicide. The Canadian
court also seems to have little
trouble embracing cases and
precedents from foreign jurisdic-
tions.
“I just watch the rest of the
world,” Abella says. “The Canadi-
an Supreme Court has become the
leading constitutional court in the
world.”b
When I was in first year Arts at
[the University of Toronto] every-
one told me to take a philosophy
course with Professor Marcus
Long. In the very first class he
asked: “If a tree falls in the middle
of a forest and no one hears it, does
it still make a noise?” I turned to
my best friend Sharon and said,
“I’m outta here.”— Abella, 2002b
A chat with Abella is not so
much a tennis match — the talk
bouncing back and forth — as a
pool game, the cue ball of conver-
sation careening off the cushions,
sometimes colliding with other
balls. What starts with a story
about buying pantyhose in Belfast
dissolves into an aside about the
books she has read lately and then
into a digression on Lyndon John-
son. Before long the topic turns to
what exactly is the Canadian
character, and then to the vicissi-
tudes of Ontario cottage country
and then — how did we get across
the Atlantic again? — to the canals
of Venice.
Along the way, the conversa-
tion turns to her origins. Rosie
Silberman was born in Germany
on July 1 — a date now known as
Canada Day, commemorating the
1867 confederation of Canada into
a single entity in the British Em-
pire — in the year after World War
II ended. Her parents were living
in the Stuttgart displaced-persons
camp following a dramatic re-
union.
After the Buchenwald concen-
tration camp was liberated, her
mother, Fanny, learned her hus-
band was still at the Theresien-
stadt camp, which had been quar-
antined because of a typhus epi-
demic. She found him after sneak-
ing into the camp with a garbage
detail.
By 1950 the family landed in a
country so clean, so prosperousand so virtuous, at least compared
with the charnel house of Europe,
that in Auschwitz the lone quiet
corner of the camp had been called
“Canada.”
It was in the real, far more
prosaic Canada — a country
whose leadership, as F.R. Scott
put it in an acidic 1957 poem, was
satisfied to “Do nothing by halves/
Which can be done by quarters” —
that Abella flourished.
She was a pianist who prac-
ticed two hours a day, a student
who devoured books, school vale-
dictorian. Unlike her parents,
eager assimilationists like so many
of their Jewish peers, she knew
nothing of anti-Semitism, nor of
the more exotic, liberating creed of
feminism.
As a teenager, she became
determined to be a lawyer. Her role
model was her father, who was
about to take his exam to qualify
as a judge when the Germans
invaded Poland.
“He couldn’t practice in Cana-
da because he wasn’t a citizen and
ended up — happily and without
complaint — as an insurance
agent,” she says. “But Canada
more than made it up to us with its
extraordinary generosity.”
His daughter pressed on, cross-
ing or, rather, crumbling, barriers
that held back others. Until 1977,
she never knew another lawyer
who was a mother. But nor did she
know much of the world’s woes.
“Notwithstanding my back-
ground, I thought the world was a
piece of cake,” she says. “It was
through my clients that I learned
about sexism and racism.”
But then, pregnant with her
second son, she became a family-
court judge at 29, and acquired an
intimate window into the margins
of the culture that had shown her
so much promise and privilege.
“Here I was, deciding whether
other people’s babies should be
removed from their parents when I
had two of my own at home,” she
says. “This was the hardest job I
ever had, and where I learned how
to listen. Every job I’ve had since
started with my understanding of
the world through the eyes of
these people, who expected fair-
ness, courage, an open mind —
someone who listened and some-
one who was decisive.”
So it was no surprise when, in
1984, she produced a report on
employment equity that Lorna R.
Marsden, the retired president of
York University in Toronto, says,
“changed the nature of Canadian
workplaces” by requiring all or-
ganizations receiving federal
funding to file reports on theirlabor force by gender and the
presence of disabled workers,
visible minorities and indigenous
people.b
You cannot be born in the shad-
ow of the Holocaust to two Jews
who survived it, without an exag-
gerated commitment to the pur-
suit of justice. You cannot grow up
indifferent to the rule of law when
every adult you love experienced
the horror of its subversion. And
you cannot live a life without
idealism when the very fact of
your birth reflects a tenacious
belief by parents whose only son
had been one of the war’s 6 million
martyrs to injustice, that the
world would turn fairer.
— Abella, 2 019b
In the 1990s, while on the appel-
late court, Abella wrote a decision
striking down a tax-law provision
restricting Canadians to leaving
their pension benefits to a spouse
of the opposite sex. She in effect
inserted two words (“or same”)
between “opposite” and “sex.” As a
result, pension benefits in Canada
now can be left to a spouse of any
gender.
In Abella’s world, two words
can make a world of difference.
And for the world of her, she can-
not imagine why these sorts of
issues are so hard below the 49th
parallel.
“All of these issues remain an
open sore in the U.S., but Canada
moves on,” she says. “The Ameri-
can court and country seem to go
conservative, then liberal, every
few years, but Canada has been on
a slow and evolutionary trajectory
toward more inclusion, respect for
diversity and respect for identity.
“It’s a trajectory,” she goes on,
“but a consistently moderate
trajectory.”
Her critics complain there is
nothing moderate about it. “She
believes it’s a judge’s role to do
justice rather than to follow the
rule of law,” says Leonid Sirota, a
senior lecturer at Auckland Uni-
versity of Technology in New Zea-
land and one of Abella’s most
fervent critics. He adds, “In her
conception, the law dissolves into
what she thinks is right or wrong.”
Those same views have won her
salutes in more liberal judicial
circles worldwide. Listen in as she
explains it in her Ottawa judicial
chambers:
“The role of majorities is to
elect legislators to make laws that
are responsive to the majority. The
role of an independent judiciary is
to determine what the law is not-
withstanding the wishes of the
majority. We are not responsible to
public opinion. We are aware of it.
But that is the responsibility of the
legislature. The attacks on the
legitimacy of independent judici-
aries around the world are attacks
on their institutional responsibil-
ity — to take everything into con-
sideration but not to be guided by
the majority view.”
One of Abella’s animating ideas
is that there are elements of reli-
gious practice that need protec-
tion.
“She has taken a strong inter-
est in this area and has wanted to
recognize the more communal and
social dimensions of religion in a
way some of the other judges werenot sold on,” said Dwight New-
man, a constitutional law scholar
at the University of Saskatchewan.
“Eventually her views have won
out.”
This notion emerged in the
2009 Hutterite Brethren case,
involving a religious colony that
did not want its members photo-
graphed for Alberta driver’s li-
censes. The court ruled for the
province, but in her dissent, Abella
wrote that the ruling would be
devastating to the community
because, in its view, the license
photo meant showing allegiance
to the country and not to God.
Six years later, the court took
up the Loyola High School case,
involving a Jesuit school’s refusal
to adopt Quebec’s Ethics and
Religious Culture program. The
court found for the school, saying
Quebec infringed on its religious
freedom by not letting it teach the
program from a Catholic perspec-
tive.
In siding with Abella, Chief
Justice Beverley Marian McLach-
lin, who was on the other side from
Abella in the Hutterite case, basi-
cally conceded that the view of her
fellow jurist had merit.b
One of the psychological lega-
cies of having a Holocaust back-
ground like mine is that you take
nothing and none for granted.
There is no sense of entitlement,
only of grateful relief when luck
merges happily with fate.
— Abella, 2004b
In two years, under Canadian
law, Abella must retire at age 75.
She is filling the final portion of
her court career with speeches
and respites at her Ontario lake-
side retreat with her husband, a
prominent specialist in the Cana-
dian labor movement and in the
history of the Jews in Canada. And
she continues laboring, in long-
hand, over pressing legal cases. In
midsummer her credenza is full of
separate piles, one for each case.
“She is always well prepared,”
says former Justice Claire
L’Heureux-Dube. “She knows her
file by heart.” Her Supreme Court
colleagues say Abella — no Silent
Clarence Thomas of the North —
speaks up during arguments, but
only when she needs to. “She’s not
the kind to pull the carpet from
anyone and interrupt or impose
her own ideas during hearings,”
former Justice Marie Deschamps
says. “She has a way of indicating
what is on her mind — and some-
times not in the way lawyers would
like.”
That quality marked the begin-
ning of her career as a judge and
remains with her as she ap-
proaches the end of her career.
But she is not in decline, nor
even inclined to recline. More than
ever she is drawn to her work, both
vocation and avocation. She is a
lifelong admirer of George Gersh-
win, and so two lines that are a
pure distillation of American
optimism from his 1931 Broadway
show — “Of Thee I Sing” — might
well be Abella’s legacy across the
border:
Shining star and inspiration,
Worthy of a mighty nation.Shribman is a special
correspondent.“THE CANADIAN Supreme Court has become the leading constitutional court in the world,” says Rosalie Silberman Abella, seen at an American Bar Assn. event.
Noah BergerFor The TimesABELLAis held by her grandmother in a 1947 photo with
her parents, who survived German World War II camps.Rosalie Silberman Abella[Abella,from A1]
Justice revered even by ideological foes