Judicial Biography: Justice Rosalie Silberman Abella
Post 2/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019).
Judges in my country have until they are seventy-five [before they must step down from the bench]. We are independent and have tenure until then so that we can be impartial, risk being unpopular, and be able to do things that protect minorities. Judges are not in a popularity contest. We do what we think is the right thing, and time will tell whether it was right. (Justice Rosalie Silberman Abella, 2018)
Appointed to the Supreme Court of Canada in 2004, Justice Rosalie Silberman Abella is one of Canada’s leading jurists. Her career marks the achievement of innumerable “firsts” for female lawyers and judges: Justice Abella was the first pregnant woman (and the youngest person ever) to be appointed to the bench in Canada, the first woman in the British Commonwealth to head a law reform commission, and the first woman to chair the Ontario Labour Relations Board. In yet another record-setting accomplishment, Justice Abella is also now the longest-sitting justice on the Supreme Court. Having spent 45 years as a judge on the Ontario Family Court, Court of Appeal for Ontario and Supreme Court of Canada, Justice Abella’s influence on the Canadian legal system is undeniable, particularly with respect to her commitment to advancing human rights and equality law.
This post offers a biographical glimpse into Justice Abella’s remarkable legal career, and sheds some light on the back story of one of the nine judges on Canada’s highest court.
Born in a displaced persons camp in Stuttgart, Germany in 1946, Justice Abella and her family came to Canada in 1950 as refugees in the aftermath of the Second World War. In 1964, she graduated from the Royal Conservatory of Music with a diploma in classical piano and was one of the youngest graduates of the institution. She subsequently attended the University of Toronto, where she earned a B.A. in 1967 and an LL.B. in 1970.
Justice Abella was called to the Ontario Bar in 1972 and practiced civil and criminal litigation until 1976, when she was appointed to the Ontario Family Court at the age of 29. With this appointment, she became the youngest person, the first pregnant person, and the first Jewish person to be appointed to the Canadian judiciary. In 1992, she was appointed to the Court of Appeal for Ontario, and in 2004 was appointed to the Supreme Court (“SCC”).
Justice Abella’s accomplishments have made her one of the Canada’s most admired, respected and decorated female jurists and leaders. While still in her twenties, Justice Abella was appointed as a commissioner on the Ontario Human Rights Commission, a member of the Premier’s Advisory Committee on Confederation, a member of the Ontario Public Service Labour Relations Tribunal, and Co-Chair of the University of Toronto Academic Discipline Tribunal. She also chaired a groundbreaking study on Access to Legal Services by the Disabled.
Perhaps most notably, in 1984 Justice Abella was appointed as the sole Commissioner of the Royal Commission on Equality in Employment, a federal commission instituted to inquire into the most efficient, effective and equitable means of promoting employment opportunities for and eliminating systemic discrimination against women, Aboriginal peoples, disabled persons and visible minorities. In this role, she created the concept of “employment equity,” and the theories of “equality” and “discrimination” that she developed in her report were subsequently adopted by the Supreme Court of Canada in its first decision addressing equality rights under the Canadian Charter of Rights and Freedom (the “Charter”) in 1989. Recommendations included in her report were also implemented by the governments of Canada, New Zealand, Northern Ireland and South Africa.
After completing her work at the Commission on Equality in Employment, Justice Abella served as Chair of the Ontario Labour Relations Board (1984-1989) as the organization’s first female chair, and as Chair of the Ontario Law Reform Commission (1989-1992) as the first woman in the British Commonwealth to head a law reform commission. She also became the Boulton Visiting Professor of Law at McGill University for four years and a Distinguished Visiting Professor at the University of Toronto law school for three years.
Justice Abella is a prolific legal scholar, having authored over 90 articles and books and delivered hundreds of lectures all of Canada and the world. Justice Abella has been awarded thirty-nine honorary degrees, and was the first sitting judge elected to be a fellow of the Royal Society of Canada, a senior national council consisting of distinguished Canadian legal scholars, scientists and artists.
Since her appointment to the bench, Justice Abella has been actively involved in Canadian judicial education. She organized the first judicial seminar in which all levels of Canada’s judiciary participated, the first seminar in which persons outside the legal profession were invited to participate, the first national educational program for administrative tribunals and the first national conference for Canada’s female judges.
Justice Abella has received several awards and honours for her work in human rights law, equality law and social justice. Upon receiving the Honourable Walter S. Tarnopolsky Award for Human Rights by the Canadian Bar Association and the International Commission of Jurists, Her Honour was cited as a lawyer “whose entire life has revolved around the cause of human rights… She has shaped Canadian policy in equality rights and … has profound impact on human rights law and policy outside Canada. Her contributions to society as a lawyer, teacher, commissioner and judge have always been shaped by her profound humanity.”
Overview of Leading Decisions
Having spent over 45 years as a judge, and 15 on Canada’s highest court, Justice Abella has authored judgments on an impressively diverse spectrum of legal topics. Justice Abella is best known for her jurisprudence on human rights, equality and minority rights and social justice. This section canvasses two of Justice Abella’s leading human rights decisions.
In Hutterian Brethren, the SCC considered the religious rights of members of the Hutterian Brethren colonies in Alberta in light of the Government of Alberta’s new driver’s licensing regulations.
The Hutterites sincerely believed that the Second Commandment prohibited them from having their photographs willingly taken. Beginning in 1974, the Government of Alberta made an exception for the Hutterites and other religious objectors by issuing non-photo Condition Code G licenses to members of this community. In 2003 Alberta adopted a new regulation making the photo requirement universal, with an aim to minimize identity theft of driver’s licenses and ended the exception for religious objectors. The Hutterites challenged the regulation on the basis that the universal photo requirement infringed their section 2(a) right to freedom of religion under the Charter.
The Alberta Court of the Queen’s Bench and Court of Appeal of Alberta found in favour of the Hutterites, holding that the new regulation did infringe the Hutterites’ right to freedom of religion and was not justified under section 1 of the Charter. A majority of the SCC allowed the government’s appeal and held that the infringement was in fact justified under section 1.
Justice Abella, one of the dissenting judges, disagreed with the majority and held that the infringement was not justified under section 1. She recognized that the regulation’s objective to prevent identity theft was a pressing and substantial one, but disagreed that the regulation was minimally impairing or that the negative effects of the regulation were proportional to the positive effects that the regulation would have on society.
Justice Abella’s dissent hinged on three key points. First, there was no evidence to suggest that the non-photo Condition Code G licenses, which had been in place for 29 years, caused any harm to the integrity of the licensing system, or that the exception was no longer feasible or would so dramatically obstruct the government’s objective that it could not be reinstated. Second, there were over 700,000 Albertans without driver’s licenses, who were therefore not in the province’s facial recognition database. There was no evidence that in the context of 700,000 unphotographed Albertans, the photos of 250 Hutterites would have any discernable impact on the province’s ability to reduce identity theft. Third, the mandatory photo requirement dramatically harmed the religious rights of the Hutterites. Justice Abella found that losing the ability to drive would not only impact the Hutterites as individuals, but it would also severely compromise their autonomy and ability to maintain their communal way of life and religious community.
Justice Abella summarized the situation that faced the Hutterites at para. 170: “The mandatory photo requirement is a form of indirect coercion that places the Wilson Colony members in the untenable position of having to choose between compliance with their religious beliefs or giving up the self‑sufficiency of their community, a community that has historically preserved its religious autonomy through its communal independence.”
Justice Abella’s dissent in Hutterian Brethren is notable because it illuminates her disposition as a jurist, in particular her belief in the importance of preserving human rights and not limiting fundamental rights for “slight and largely hypothetical” benefits (para. 162).
In N.S., the SCC was tasked with balancing a witness’s religious rights against an accused’s right to a fair trial.
N.S., the complainant, alleged that she had been repeatedly sexually assaulted by her uncle and cousin when she was a child. During the preliminary inquiry N.S. wished to wear a niqab while testifying, stating that her religious belief required her to wear a niqab in public when men other than her close family members might see her. The accused sought an order requiring N.S. to remove her niqab while testifying, alleging that it would infringe his right to a fair trial. The judge concluded that N.S.’s religious belief was “not that strong” and ordered her to remove her niqab. N.S. appealed.
While the Ontario Superior Court of Justice quashed the judge’s order, the Court of Appeal for Ontario returned the matter to the preliminary inquiry judge to be dealt with in accordance to its directives. N.S. appealed to the SCC. The SCC split three ways on appeal, but unanimously agreed to return the case to the preliminary inquiry judge, albeit with different directions.
Chief Justice McLachlin (as she then was), writing on behalf of the majority, laid out a framework for courts to consider when determining whether a witness should be allowed to testify wearing a niqab. The proposed framework consisted of four questions that balanced the religious rights of the witness against the accused’s right to a fair trial.
Justices LeBel and Fish dissented and proposed a clear rule whereby a witness would never be allowed to testify wearing a niqab. Justice Abella also dissented, but she provided a direction to the trial judge to allow N.S. to wear the niqab through the preliminary inquiry and the trial, if any, that followed. In her dissent, Justice Abella balanced the religious rights of the witness against the right of an accused, similar to the majority, but took a much stronger stance on the complainant’s religious rights and the infallibility of demeanour evidence.
While the majority held that a clear rule to permit or prohibit a witness to wear a niqab could not be sustained, and that each situation should be addressed on a case-by-case basis going forward, Justice Abella took a stronger stance on the protection of a niqab-wearing witness’s religious rights. Justice Abella held that with very limited exceptions (e.g. where the accused can demonstrate that the witness’s face is directly relevant to the case, such as where the witness’s identity is in issue), the harm to the complainant incurred by requiring her to remove her niqab while testifying would outweigh any harm to trial fairness.
Justice Abella’s finding hinged on two key points. First, when a witness is prevented from wearing a niqab while testifying, that witness is prevented from acting in accordance with his or her religious beliefs. Second, prohibiting a witness from wearing a niqab has the effect of forcing the witness to choose between his or her religious beliefs and participating in the justice system. As Justice Abella observed at paras. 94-95:
[C]omplainants who sincerely believe that their religion requires them to wear the niqab in public may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial. It is worth pointing out as well that where the witness is the accused, she will be unable to give evidence in her own defence. To those affected, this is like hanging a sign over the courtroom door saying, “Religious minorities not welcome.”
The order requiring a witness to remove her niqab must also be understood in the context of a complainant alleging sexual assault. … Creating a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice undermines the public perception of fairness not only of the trial, but of the justice system itself.
Justice Abella also questioned the efficacy and accuracy of demeanor evidence in its ability to lead to the “truth.” While Justice Abella recognized that seeing more of a witness’s facial expressions while testifying is better than seeing less, she refused to concede that “seeing less is so impairing of a judge’s or an accused’s ability to assess the credibility of a witness that the complainant will have to choose between her religious rights and her ability to bear witness against an alleged aggressor:” para 82.
Justice Abella’s perspective here was grounded in two observations. First, she noted that the niqab only presented a partial obstacle to the assessment of demeanour, as a witness wearing a niqab could still express herself through her eyes, body language, gestures, tone and substance of speech. Second, Justice Abella recognized that courts have and continue to regularly accept testimony of witnesses whose demeanour can only be partially observed (e.g. witnesses who cannot hear, who do not understand or speak to the language used in the proceedings or who have medical limitations that affect and impair the manner of speaking). Yet none of these features disqualified witnesses from giving evidence on the grounds that an accused’s fair trial rights are impaired. There are even situations where courts will accept a witness’s evidence without being able to assess demeanour at all (e.g. witnesses who are unable to physically attend in court because of a disability, under the principled exception to the hearsay rule).
Justice Abella’s dissent in N.S., much like in Hutterian Brethren, stressed the importance of preserving individual human rights and not limiting human rights on the basis of hypothetical harms. Ever-cautious about analyzing human rights in a theoretical vacuum, Justice Abella is very much a jurist grounded in reality and focused on protecting the rights of the individual.
It is difficult to capture the breadth and depth of Justice Abella’s contribution to Canadian jurisprudence succinctly. Her vision and thinking have shaped many areas of Canadian law, not least human rights law, an area in which she has continually pushed the boundaries of existing jurisprudence. In a 2018 interview with Dean Matthew Diller at the Fordham University School of Law, Justice Abella provided a glimpse into the thought process behind her approach:
[J]udges in Canada think they have a responsibility to approach law, constitutional law in particular, in a way that tries at least to keep pace and occasionally lead. Courts are not majoritarian institutions, they are not there to cater to the majority. That is what legislatures do; they are responsive to the public, and if they do not do what the public wants, they can lose their jobs at the polls.
Judges in my country have until they are seventy-five [before they must step down from the bench]. We are independent and have tenure until then so that we can be impartial, risk being unpopular, and be able to do things that protect minorities. Judges are not in a popularity contest. We do what we think is the right thing, and time will tell whether it was right. If it turns out not to be, we have changed it, as we did with the law of assisted dying. Twenty-five years ago our Court said, “There’s nothing wrong with a criminal prohibition.” Two years ago, we said there was.
We did the same thing with the prostitution laws. Twenty-five years ago the Court said, “There is nothing wrong with criminalizing it.” Two years ago, we said, “There is a problem if it means prostitution is unsafe.”
It is not that we are indifferent to public opinion, we just don’t know who the “public” is. So we are not accountable to public opinion because I don’t even know what that means. Is it what the Washington Post says? Is it what the Wall Street Journal says? Is it what social media says? We are not unaware of what our reading tells us is happening, but we’re responsible to the public interest. And I think that gives us a responsibility to try to make the right decision notwithstanding what we think the public, the majority of the public—whatever that means—wants us to do.
For Justice Abella, the Canadian legal profession should be concerned about what the world looks and feels like to those who are vulnerable, and should acknowledge and respect individual differences. Justice is about the individual, if not more, than it is about the collective.