Justice Rosalie Abella: The Matron of the Overlooked
The Supreme Court of Canada (SCC) has a liberal problem.
I feel confident in making this claim because there exists such a wonderful comparison in the Supreme Court of the United States of America (SCOTUS).
One of the first things we learn in 1L is that our constitution, Constitution Act 1982, is to be treated as a living tree. Each of its provisions is to be interpreted with respect to the framers, but ultimately, through the looking glass of the 21st century.
It may surprise you to learn that the same approach is not followed down in the good ole US of A. Instead, the more conservative members of the court utilize an originalist lens when confronted with complex legal issues. In the opinion of the late Justice Antonin Scalia:
“ Originalism is sort of subspecies of textualism. Textualism means you are governed by the text. That’s the only thing that is relevant to your decision, not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.”
The point of this wandering introduction is to give you context for my claim that the SCC has a liberal problem. You see, when SCOTUS finally legalized gay marriage, the roaring dissent came from the right. In contrast, when the SCC recently ruled to extradite a mother of three to Georgia, USA to face kidnapping charges, the dissent came in like a wrecking ball from the left:
 …the very charges the mother faces arose because she acted in what she saw as her children’s best interests. The evidence before the Minister unequivocally showed that the children fled from their father’s home because he was physically and mentally abusive…the evidence accepted throughout these proceedings is that the children ran away on their own without either the assistance or knowledge of the mother.
 The Minister appears to skate over both the harm to which the children were subject while living with the father and the fact that the mother’s apprehension of the children was clearly motivated by her desire to rescue them from harm. As such, he essentially penalized the children for escaping a situation of harm and reaching out to their mother for assistance. Yet it is difficult to see what choices they — or she — realistically had. He also penalized the mother for coming to the assistance of her children instead of ignoring their entreaties. This amounts to penalizing her for accepting her responsibility to protect the children from harm.
The voice behind this dissent?
The Matron of the Overlooked, Our Lady of Mercy: Justice Rosalie Abella.
Born Rosalie Silberman, Abella’s story is idealistically Canadian. The daughter of Holocaust survivors, she was born in a displaced persons camp in Stuttgart, Germany. The date of her birth was July 1, 1950. Although there is no evidence of an actual connection between that date and what was chosen to become Canada Day, I like to think the people on the committee considered it as a factor.
Abella spent the first four years of her childhood as a refugee while her father worked as general counsel for other members of the camp. The family immigrated to Canada in 1954. Their move was both a triumph and a disappointment. While the family was able to escape the chaos of European reconstruction, the Barristers and Solicitors Act barred the elder Silberman from becoming a practicing lawyer in Canada. Not only was this a great injustice, the Canadian legal community also deprived itself of a keen legal mind. If this were an article focused on exploring why Abella is the progressive champion that she is, I might postulate that it had to do with her father being prevented from practicing law, or her immigrant upbringing. But, that is not the purpose of this article, so I won’t.
Growing up in Toronto, Abella was a voracious reader and a talented pianist. This combination of curiosity and discipline lead her to the University of Toronto law school, where she was one of five women to graduate in 1970. Interestingly, she married her husband two days before her international law exam. Because of this commitment to not letting an impending exam get in the way of a good time, I like to think of her as the Justice that would enjoy being at Queen’s Law the most.
After being called to the bar in 1972, Abella was a private practitioner for four years. Then, in 1976, just six years out of law school and pregnant with her second child, Abella was called to the Bench. She was 29 years old and the youngest Judge in Canadian History. I don’t know what music was playing when she was sworn in, but I bet it was epic.
Abella served in the Ontario Family Courts until 1992, and then was appointed to the Ontario Court of Appeal. Besides dishing out judgements while wearing a slick robe, Abella found the time to be the chair of the Ontario Labour Relations Board, the Law Reform Commission and a member of the Ontario Human Rights Commission. She also found the time to casually teach at McGill Law and moderated the televised leaders debate in 1988.
In 2004, Louise Arbour left the Supreme Court of Canada to take on the worlds’ human rights challenges as United Nations High Commissioner for Human Rights. She left some very big shoes to fill on the Court.
Who else could Paul Martin’s government appoint to champion Canada’s human rights obligations other than Justice Rosalie Abella? In ascending to the court, Justice Abella also became the first Jewish woman to sit in judgement at the SCC. I like to think that if Justice Abella had to walk around with all her “firsts” as badges, she would tilt over.
For those such as us — so committed to the law — it is natural that we want the judiciary to reflect the best of us. For those who believe in the same values which Justice Abella champions, her position on the Court is a source of hope and solace. Especially in these uncertain times: when the spectre of fundamentalism has sparked a modern exodus; when a nominee to lead the Free World condemns his fellow citizens simply because of their creed and race; and when in the quiet hours it seems the abyss really may stare back. Amidst all this chaos, a stalwart such as Abella sitting on the bench is quiet reassurance that the tide will not sweep us away.
So the SCC has a liberal problem. All things considered, I’m pretty glad.
Justice Rosalie Abella will be visiting the Queen’s Faculty of Law on Friday, November 18, 2016 at 1pm in MacDonald Hall 201.
Max Xiao (3L) is a contributor for Juris Diction.