Jewish Woman Named to Canadian High Court

By Sheldon Gordon

Published September 10, 2004, issue of September 10, 2004.
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TORONTO — Rosalie Abella, a flamboyant legal trailblazer who at age 29 was appointed Canada’s first Jewish female judge, has now become the first Jewish female named to the Supreme Court of Canada.

Abella, who was promoted last month from the Ontario Court of Appeal, has “strong credentials,” said Lorraine Weinrib, a University of Toronto law professor. “Her deep understanding of protecting the rights of the disadvantaged would permeate her work, but it [won’t] shift the balance on the [high] court.”

Ed Morgan, president of the Canadian Jewish Congress and also a University of Toronto law professor, calls her “incredibly lively and interesting.”

If anything, that’s an understatement. Rosie, as her many fans call her, is known for her big red hair and her gregarious personality — and for wearing orange tights under her judicial robes in court. She has a high profile not only as a liberal jurist whose groundbreaking rulings have delighted gays and feminists, but also as a public intellectual who gives outspoken lectures on Canada’s Charter of Rights, antisemitism and other issues of concern to her.

Born Rosalie Silberman in 1946 to Holocaust survivors in a displaced persons camp in Germany, she and her parents came to Canada as refugees on an American troop ship when she was 4 years old. She is married to prominent Jewish historian Irving Abella, a former president of the Canadian Jewish Congress. In addition to her duties as a jurist, she sits on the International Board of Governors of the Hebrew University, and is a member of the United States Holocaust Memorial Museum’s Committee on Conscience.

Honored last December by the Canadian Council of Christians and Jews, Abella spoke forcefully about “Western Europe’s seeming indifference to, and the United Nation’s active collaboration in, the spread of antisemitism.”

“What we are witnessing today is the globalization of intolerance and antisemitism is the canary in the mine,” she said in her address. “Does it really matter why some people and countries are antisemitic? Isn’t it enough that they are? Why people hate Jews does not justify their prejudice. The root cause of prejudice is prejudice. The motive or explanation is irrelevant. To create an exculpatory link between Israel and antisemitism is offensive and cowardly.”

Abella was passed over for the high court in 1998, when her supporters and those of John Laskin — the son of Canada’s first Jewish Chief Justice, the late Bora Laskin — engaged in bitter and unseemly lobbying for the appointment. (Ultimately a dark-horse candidate was picked.) That was a mistake she was careful not to repeat in the months leading up to this selection. “The best way to campaign is to write leading judgments,” said Morgan. “Justice Abella has really shined in that area.”

Abella’s prospects were enhanced this time by the fact that Prime Minister Paul Martin had positioned himself as a defender of Canada’s Charter of Rights. In the July federal election, which gave Martin’s ruling Liberal Party a minority government, he warned that the opposition Conservative Party was an extremist force bent on reining in judicial activism and undermining the Charter.

Abella is a self-described “Charter fan,” and has publicly slammed opponents of judicial activism, describing them as the “new inhibitors” for trying to prevent the court from expanding minority rights in Canada. She has said the judiciary is accountable less to public opinion and more to the public interest — and that judges serve only justice.

While the Abella appointment pleased the small, left-wing parties whose support Martin’s Liberals will need in the minority Parliament, Weinrib cautioned: “She is respected for being a very good judge, not an ideologue.” But Real Women, a right-wing organization, disrespects her on its Web site as “a judge living in the rarefied atmosphere of pure feminist ideology, untainted by human experience or practical realities.”

Abella practiced civil and criminal law in the early 1970s, before being named to the Ontario Family Court, while pregnant, in 1976. At 29, she was the youngest judge ever appointed in Canada, as well as the country’s first Jewish woman on the bench. During her tenure, she also sat on the Ontario Human Rights Commission and led a one-person federal commission that created the concept of “employment equity,” Canada’s version of affirmative action, to advance the hiring of women, racial minorities, the disabled and native Canadians.

Promoted to the Ontario Court of Appeal in 1992, Abella has written several judgments that have had nationwide impact. In 1998, she held in the Rosenberg case that same-sex partners are entitled to survivor benefits equivalent to married heterosexual couples under the Income Tax Act — a ruling that spurred the federal government to change dozens of statutes. In 2001, she wrote the majority opinion in the Miglin appeal that allowed ex-wives who find themselves in financial difficulty while their former husbands prosper to go back to divorce court and seek increased support. (The Supreme Court later overturned that ruling.)

Abella’s elevation, and that of Judge Louise Charron, also from the Ontario Court of Appeal, will bring the nine-member Supreme Court up to full strength for a busy fall sitting that begins in October with a landmark hearing on same-sex marriage. For the first time, there will be two Jewish gavel jockeys wearing the high court robes. Justice Morris Fish, a Montrealer, was appointed a year ago.

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