A supreme sense of justice

Meet first Jewish woman ever to be appointed to Canada's Supreme Court.

By RHONDA SPIVAK
April 15, 2009 22:42
A supreme sense of justice

abella 248.88. (photo credit: Philippe Landreville)

"Without democracy, there are no rights; without rights there is no tolerance; without tolerance there is no justice; and without justice, there is no hope." These are the inspirational words of Rosalie Silberman Abella, an internationally renowned jurist and scholar who in 2004 became the first Jewish woman ever to be appointed to the Supreme Court of Canada. Born in a displaced persons camp in Stuttgart, Germany, in 1946, Justice Abella is the first child of Holocaust survivors to sit on the highest court of any country in the world, outside of Israel. She had a brother Julius, whom she never knew because he was murdered in Treblinka at two and a half before she was born. "After the war, my father [Jacob Silberman], a lawyer who taught himself English, became the head of the Jewish community in Stuttgart and represented the displaced persons in their dealings with the Allies," she says. Abella says that "I have been very lucky all my life... Above all, I've been lucky in the most important thing of all - family. My parents taught me to cherish justice fearlessly and embrace life optimistically, and I've had the privilege of being married to Irving Abella for 40 years and raising two magnificent sons with him. "One of the psychological legacies of having a Holocaust background like mine, is that you take nothing and no one for granted." Her background has also taught her that "indifference is injustice's incubator," and that "it's not just what you stand for, it's what you stand up for." ABELLA BECAME the youngest and first pregnant judge in Canadian history when she was appointed to the Ontario Family Court in 1976 at 29. As her husband Irving, a Canadian historian, recalls, "Rosie's first commitment was always to family. When our two sons were little, she always came home for dinner and was with them until bedtime. Then she would go back to the office and come home at one or two in the morning." He says his wife's "pioneering judgments" were "gutsy" and "ahead of their times." Abella says in the 1970s Canada "gave persons with disabilities protected status in human rights codes, entered into serious dialogue with aboriginal people, welcomed waves of non-white immigrants, and abolished the matrimonial property regimes that for centuries had kept wives on an economic continuum that ranged from invisible to inconsolable." With the introduction of Canada's Charter of Rights and Freedoms in 1982, Abella says, "the public was introduced to a new, uniquely Canadian legal vision that rendered the status quo vulnerable to heightened expectations." ONE OF the most significant accomplishments of Abella's career is that the unique definition of equality she formulated as the sole commissioner of the 1984 Royal Commission on Equality in Employment was adopted by the Supreme Court of Canada in 1989 in the first equality case it decided under the Charter of Rights and Freedoms. Not only did her approach - acknowledging and accommodating differences rather than always treating people the same - become the basis for Canada's equality jurisprudence, but the strategies she recommended in the Royal Commission Report for addressing discrimination in the workplace for minorities and women (which she called "employment equity") became the basis for legislation in Canada, Northern Ireland, New Zealand and South Africa. As Prof. Ed Ratushny, of the University of Ottawa Law School, says, "Rosie has a real sensitivity to groups in society [women, visible minorities, people with disabilities, and aboriginal peoples] who often face systemic discrimination." As Abella, the recipient of 26 honorary degrees, says, "We must never forget how the world treats those who are vulnerable." Indeed, her sensitivity to protecting those in society who are vulnerable is a common thread that runs through many of her forward looking judgments. This thread is evident in the Supreme Court of Canada's 2007 landmark decision of Bruker v Marcovitz, which enhances the rights of Jewish women in Canada. In the case, Justice Abella, writing for the majority of the court, ordered Jason Marcovitz to pay damages to Stephanie Bruker for his 15-year refusal to honor a provision of a civil divorce contract in which he pledged to consent to give Bruker a get (a Jewish religious divorce). As Abella wrote: "The public interest in protecting equality rights, the dignity of Jewish women in their independent ability to divorce and remarry, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and values that outweigh Mr. Marcovitz's claim that enforcing para. 12 of the consent would interfere with his religious freedom." As Dr. Lisa Fishbayn, director of the Project on Gender, Culture, Religion and Law at the Hadassah-Brandeis Institute at Brandeis University, says, "Her decision recognizes that Mr. Marcovitz's agreement to appear before a beit din in order to deliver a get was part of a global settlement of finance, property and custody issues in the divorce. Ms. Bruker gave away things in the negotiation in order to win his agreement to go before the beit din, and performed all her obligations under the agreement." "I believe that it is not accidental that Madam Justice Abella, the first Jewish female judge appointed to the Supreme Court of Canada, had the sensitivity and courage to craft a legal remedy that affords an observant woman the freedom to rebuild her own life both as an equal citizen and as a member of the Jewish community," says Ayelet Shachar, professor of law at the University of Toronto. As a result of the Bruker decision, Canadian Jewish couples will now be able to include get provisions in their prenuptial agreements knowing they are enforceable by civil damage claims. ABELLA'S SENSITIVITY to disabled people is evident in a decision rendered in 2007 involving wheelchair access on Canada's national railway, Via Rail. She wrote the majority judgment that ordered the company to make at least one car per train accessible to persons using their own wheelchairs. The company took the position that instead of ordering it to make costly adjustments, its employees would transfer disabled passengers into on board wheelchairs, deliver meals and assist them with using washroom facilities. In finding Via Rail had to make the adjustments to its cars, Abella wrote, "The accommodation of personal wheelchairs enables persons with disabilities to retain their dignity and to access public services and facilities as independently and seamlessly as possible." Abella still writes her judgments "by hand," and has published over 90 articles and written or coedited four books on legal topics. In her office, she has hung her father's law diploma from the Jagiellonian University of Krakow where he graduated in 1934. He died a month before she finished law school, but as she has said in a speech, "He was so proud that I chose justice as a profession." Not surprisingly, Abella's sons, Jacob (named after her father) and Zachary, both became lawyers and each has a Master of Laws degree. "They are wonderful reflections of her love," says Irving Abella.


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