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May 22, 2009
A supreme sense of justice
Rosalie Silberman Abella has passed many unique judgments.
RHONDA SPIVAK
"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 words of Justice Rosalie Silberman Abella, an internationally renowned jurist and scholar who, in 2004, became the first Jewish woman to be appointed to the Supreme Court of Canada.
Born in a displaced persons camp in Stuttgart, Germany, in 1946, Abella is the first child of Holocaust survivors ever to sit on the highest court of any country in the world, outside of Israel. She had a brother, Julius, who she never knew because he was murdered at Treblinka at the age of two and a half, years before she was born. Following the war, her father, Jacob Silberman, became the head of the Jewish community in Stuttgart and, as a lawyer, represented the displaced persons in court and in their dealings with the Allies.
In a speech she made when sworn in as a justice of the Supreme Court of Canada, Abella referred to her "extraordinary parents" as having "taught me to cherish justice fearlessly and embrace life optimistically." She also said, "One of the psychological legacies of having a Holocaust background like mine is that you take nothing and no one for granted."
Abella became the youngest (and first pregnant) judge in Canadian history when she was appointed to the Ontario Family Court in 1976 at the age of 29. As her husband, Irving Abella, a Canadian historian and the author of None is Too Many, recalled: "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." The couple recently celebrated their 40th wedding anniversary.
Irving Abella also describes his wife, who was appointed to the Ontario Court of Appeal in 1992, as "gutsy" and not afraid to make "controversial" decisions. He said she issued "pioneering judgments, particularly in the area of family law, which were ahead of the times, but are now mainstream."
One of the most significant accomplishments of Justice 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 in the exact same way – become the basis for Canada's equality jurisprudence, 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, who teaches criminal, constitutional and administrative law at the University of Ottawa Law School, said, "Rosie has a real sensitivity to groups in society [women, minorities and people with disabilities] who often face systemic discrimination."
In a recent public appearance, Abella, who is the recipient of 27 honorary degrees, ended her remarks by saying, "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 judgments. This thread is evident in the Supreme Court of Canada's 2007 landmark decision of Bruker v. Marcovitz, a decision that enhances the rights of Jewish women in Canada. In the case, Abella, who wrote the judgment 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 (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."
In her decision, Abella ruled that Marcovitz could not refuse to perform the obligations he assumed willingly "without accepting the legal consequences in paying damages."
"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," said Dr. Ayelet Shachar, professor of law and Canada Research Chair in Citizenship and Multiculturalism in the University of Toronto faculty of law.
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.
In addition to writing her judgments, which she still does by hand, Abella has published more than 90 articles and written or co-edited four books on a variety of legal topics. "That's a tremendous amount, especially for someone who is not in academia," said Irving Abella, who added that his wife is a "consummate reader."
In her office, Abella 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, "He was so proud that I chose justice as a profession."
The Abellas' two sons, Jacob (who is named after her father) and Zachary, both became lawyers and each has a master of laws degree. "They are wonderful reflections of her love," said her husband.
Rhonda Spivak is a Winnipeg freelance writer and the editor of the Jewish Post and News.
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