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Rosalie AbellaBy BERNIE BELLAN
I have to admit: Knowing Justice Rosalie Abella’s reputation as a staunch (small “l”) liberal, and someone who has long championed the judiciary’s expanding the notion of “rights” in Canadian society, I was hesitant to ask her a question in which I was going to quote from a recent article by Conrad Black, in which he directly challenged the notion that our courts should be advancing rights.

I could tell by the nature of the overflow audience (over 400) that had gathered at the Adas Yeshurun-Herzlia Synagogue on Wednesday, November 23 to hear Abella that, if I valued my life, I wouldn’t dare challenge the thesis that it is the judiciary’s role to expand the notion of “rights” in Canada. This was definitely a small “l” liberal crowd, here to cheer on one of their heroes. All that was needed in order to make the evening complete was a crew from CBC to record Justice Rosalie Abella for a segment of its consistently liberal radio program, “Ideas”.
In actual fact, I consider myself to be a wishy-washy sort of “small l”liberal as well, albeit a cynical one, who’s quite willing to challenge accepted liberal dogma. And, it would have been great fun to hear Abella  challenged when she spoke and hear how she would have parried questions that might have tried to poke holes in the notion that our judiciary has been expanding democracy in Canada - but I chickened out.
You see, Abella was not only extremely sharp and a fabulous speaker – both off the cuff and when she was reading from a lively speech that she delivered with panache, her sense of humour was good enough to qualify her as a stand-up comic. She could be self-deprecating, but incisive at the same time. I’m afraid I would have been carved up like a turkey (It was the eve of American Thanksgiving.) by someone as intellectually  intimidating as Mme. Abella.
So, what did she have to say? After being introduced by Justice Freda Steel of Manitoba’s Court of Appeal, who noted that both she and Rosalie Abella were the daughters of Holocaust survivors, Abella explained, in reference to being introduced by Freda Steel: “You’ve become the judge I like best because you make me feel tall.” (In case you need to have that explained, it’s a reference to both women being relatively short.)
Abella told the audience this version of how she happened to be in Winnipeg this particular evening: As it happened, she said, she was on the receiving end of a phone call from Winnipeg lawyer Mel Myers, who asked her whether he could have the cell number for her equally famous husband, Irving Abella.
When Rosalie Abella replied that Irving didn’t like to give out his cell phone number, Myers said that he was trying to get a hold of Irving to see whether he might be available to be the guest speaker for the Jewish Heritage Centre of Western Canada on November 23rd.

Rosalie said that they would both in Winnipeg that particular day as Irving would be attending a dinner of the Royal Society of Canada the next day. According to Rosalie Abella, Myers said: “That’s nice, but I’d still like to have Irving’s number” - apparently completely overlooking the fact that Rosalie herself would be available to speak.
(It’s a great story, but apparently totally untrue. We checked and found out that, in fact, it was Rosalie Abella herself that Mel Myers wanted to have as a guest speaker, not Irving Abella – and that she said she’d be glad to do that because the timing was perfect as she would be accompanying Irving to Winnipeg as his spouse to attend the Royal Society dinner. Still, her version of what happened is much funnier.)
Also, during Freda Steel’s introduction of Abella, she made mention of the many years Abella had been active in the Canadian Friends of the Hebrew University. In response, Abella noted that “I used to have such a wonderful time (in the CFHU) until they fired me from the board!”
“Maybe it was because Gail Asper and I were always asking, ‘Why don’t you have more women on the board?’ “ Abella wondered.
Launching into her talk, which was titled “The role of the judiciary in a democracy”, Abella proceed to give a penetrating overview of how the role of the judiciary has evolved in Canada – primarily since the issuing of the Charter of Rights and Freedoms in 1982. She wondered about “the extent to which we in Canada are going to be able to hold on to the democratic principles that unite us,” suggesting that “the real judge is time”.
Abella noted that she “was born in 1946”. (She paused at that point, looked at the audience, and said – as if she were waiting for audience members to say: “You don’t look it!”)
In her lifetime, she observed, there have been so many advances in the concept of individual rights, saying: “I am positively ebullient about what has happened in Canada…How Canada made moral choices that made justice and democracy grow and grow.”
“Legislatures across the country shone flashlights across the country, leading to a seismic change in what constitutes the Canadian majority – and who gets to join it.”
There have been four primary avenues through which Canadians’ understanding of what constitute rights have been expanded, Abella argued: human rights codes; indigenous rights; women’s rights; and the welcoming of immigrants.
“With the Charter of Rights 35 years ago,” Abella suggested, “a justice journey became a justice juggernaut.”
Referring to the criticism emanating from conservative circles (including the aforementioned Mr. Black) that “rights should be distributed by legislatures”, not the courts, Abella said, “What was odd for me was that, at its core, this was a complaint that the Charter created too many rights and too many freedoms…too much democracy...
“Democracy is enhanced, not created, by a strong judiciary – a mutually independent partnership between the legislature and the judiciary,” she added
Tracing the evolution of rights beginning with the Magna Carta, Abella noted the divergent paths that the interpretations of rights have taken in the United States and Canada. Certain key decisions by the U.S. Supreme Court have played a fundamental role in the expansion of individual rights in that country, she said, beginning with a decision known as “Marbury v. Madison”, in 1803, in which the U.S. Supreme Court ruled that “the judiciary has the right to invalidate legislative action.”
In subsequent years, however, the American judiciary proved to be primarily interested in “protecting the status quo”, which led to the repression, rather than the expansion of individual rights, as exemplified by the internment of Japanese citizens and McCarthyism.
Abella argued that critics of the courts who would accuse the judiciary of “activism” have been using that word as a “missile deployed against the judiciary today”.
The landmark decision by the U.S. Supreme Court in “Brown v. The Board of Education”, which outlawed segregation in the public school system, led to the “Western world revisiting the concept of rights”, Abella said. “What pours oxygen into democratic veins is the protection of rights.”
Yet, while some would say that “minorities seeking to reverse discrimination are called special interest groups” because the “rights of the majority are being trampled” and “courts are told not to ‘interpret’ law”, those taking that position are, in fact, “defying the tradition of common law,” Abella argued.
“Constitutionalized rights are the finest sign of a thriving democracy,” she said. Quoting from famed American playwright Lilian Hellman, Abella said “I will not cut my conscience to fit this year’s fashion.”
“We have enhanced our democratic values by having judges who insure that law and justice never leave each other’s sides as they patrol the Canadian landscape,” Abella said eloquently. “We have carved out our own magnetic and uniquely illuminating vision…Where for others treating everyone the same is the dominating principle” (as in the American concept of equality, she explained), “for us, respecting differences is the dominating principle.”
Canadians, Abella suggested, “are the most successful protectors of multiculturalism in the world.” While she conceded that there are “still many failures” within our system of justice in Canada, including “aboriginal rights, access to justice” and other areas… “the transformation of Canada from a country that excluded people who were different to one that embraced them is justice at its best….When we trumpet justice we trumpet our moral core,” she said.
In her concluding remarks, Abella said that “with knowledge comes wisdom; with wisdom comes understanding, and with understanding comes an appreciation of what it is to improve.”
Following her speech, Abella fielded a variety of questions on topics ranging from multiculturalism to sexual orientation to judges not relying upon polls when making their decisions.
With reference to that subject, Abella observed that “judges don’t take polls. We’re the institution that has independence until we’re 75.” Acknowledging that some of her decisions have not been popular, she did say (with a smile), “but I like it better when I’m popular.”
To this point I haven’t noted that I had asked Justice Abella before she began speaking whether she had any problem with me covering her speech (Out of courtesy to any speaker who holds a publicly sensitive post I like to let them know that I’m there to cover their remarks. Occasionally someone might ask me to keep either part of their remarks or, on rare occasions – all of them, off the record.)
At one point, during the question and answer session, in response to a question about her having presided over a conference in 1992, Abella began to answer the question, recalling that conference. She said though: “Let me see, that conference was 25 years ago – I think. I can’t do math – I’m a girl…Hello Julie Payette.” (That was a good-natured dig at herself for uttering a remark that would no doubt infuriate our current governor-general: scientist and former astronaut Julie Payette.)
After Abella had concluded her speech and was speaking with well-wishers who had gathered around her, I approached her to take her picture (with Justice Freda Steel) and said to her: “I hope you don’t mind if my story leads with: ‘Supreme Court Justice Rosalie Abella says “I can’t do math - I’m a girl.” (I think she was amused. Maybe not. Can a judge still clamp someone in irons?)