By Donna Bailey Nurse
How does Supreme Court Justice Rosalie Abella find time to be an author and pianist and a judge? “Every day is a gift,” she says. “I do what I can to make the most of it”
Hanging in the chambers of Supreme Court of Canada Justice Rosalie Silberman Abella is an elegantly framed poster of Louis Armstrong and Billie Holiday. Lady Day is leaning in toward Armstrong and beaming like she’d never met the blues. “Look how joyous that is,” says Abella, noticing me admire the print. “How exuberant!” On the facing wall are several colourful artistic evocations of New York City. “I love colour and I love New York,” she says. “New York is alive and raw, and it’s got flair. It’s not afraid and it takes risks, and it’s over the top and is absolutely unabashedly what it is.”
Some have said much the same of Abella – the Supreme Court judge who everyone seems to know as “Rosie.”
The daughter of Holocaust survivors, Abella (BA 1967 UC) graduated from the University of Toronto Law School in 1970 and was called to the bar in 1972. She practised law for four years. In 1976, at the age of 29 and while pregnant with her second child, Abella became the youngest Canadian – and first Jewish woman – to be named to the bench. It was a groundbreaking achievement, but Abella describes it as mostly a case of good timing. “This was [Ontario Attorney General] Roy McMurtry deciding, in the wake of International Women’s Year, that there weren’t enough women judges,” she says. “I would like to be able to tell you that out of a field of a hundred thousand he chose me. But to be honest, there wasn’t a whole lot of choice.”
Abella soon became known among her colleagues for her ebullience and deep commitment to human rights. She sat for five years on the Ontario Human Rights Commission, participated in an inquiry into the conduct of the Nova Scotia judges involved in the wrongful murder conviction of Mi’kmaq youth Donald Marshall Jr., and chaired a provincial study on access to legal services by people with disabilities. “I had a chance to be part of the evolutionary changes in the law regarding women and minorities and persons with disabilities,” says Abella. “Did I consciously get involved with those things? Yes, I did. I believe that the law is related to justice.”
Abella’s passion for human rights stems from her family history. In her chambers, she calls my attention to a photo of the American troop ship SS General Stuart Heintzelman, which ferried her family from Bremerhaven, Germany, to Canada. Jacob and Fanny Silberman landed at Pier 21 in Halifax with their daughters, Rosalie and Toni, and Fanny’s mother, on May 30, 1950. Abella studies the image. “I remember being nauseous,” she says. Later, in Toronto: a new home and a new language. “What I really remember is being desperate to play with the kids. They wouldn’t play with me at first because I spoke German.”
She pulls a book down from a shelf and spreads open the pages before me: a little girl at the front of a train – a pigtailed pixie with a shy smile. Not quite four years old, she’s instantly recognizable as Abella. “We travelled by train from Stuttgart [Germany] to Bremerhaven,” she says, pointing out in the photo the metal badge attached to her clothes. “That was my tag. It was so we wouldn’t get lost. We were packed in like baggage.”
Hanging on the wall is also a framed certificate – her father’s law degree, worn and yellowed beneath the glass. Jacob Silberman won a scholarship to study law at Jagiellonian University in Krakow, Poland; he was one of only four Jews permitted entry under quotas. He had been born in 1910 in the Polish shtetl of Sienno to a bookseller and his wife. In Krakow, he earned money tutoring. In the mid-1930s, while visiting the city of Ostrowiecz, he met Fanny Krongold. Fanny was the daughter of a wealthy factory owner. She had a good head for business and was running her father’s operations while still in her early 20s. The two soon fell in love. “My mother felt like she had found the Holy Grail,” Abella says.
Jacob and Fanny married on September 3, 1939, shortly after Jacob graduated from law school but not before Nazi Germany invaded Poland. They were separated for most of the war, and shunted off to labour and concentration camps. Their son, Julius, died at Treblinka; he was just two and a half. The couple lost parents and siblings. Later, at a displaced persons camp in Stuttgart, they began rebuilding their lives. Abella was born at the camp on July 1, 1946. Her sister, Toni, arrived two years later. Abella remembers her childhood as happy, and says she’s amazed by her parents’ and grandmother’s resilience and optimism. “With everyone and everything they lost – and they lost so much – they still came out of that experience so nurturing, so determined that my sister and I would feel no fear,” says Abella.
American officials in Stuttgart asked Jacob to participate in establishing legal services for displaced persons. He was heartened “by just how wonderful it was to be able to discover that justice was possible after what he had been through,” says Abella. Until his death, just one month before her graduation from law school, Jacob and Abella shared a unique bond. “I always felt there was a man who encouraged me to believe there was nothing I couldn’t do. And who loved his children so profoundly that it created a kind of protective shield against the world.
“He started treating me as an equal from the time I was 12 or 13,” Abella says. “It wasn’t conscious on either of our parts, I think. But I always knew that somebody I admired was both loving and respectful. For your intellectual confidence there’s nothing better.” The familial shield was fortified by her mother, says Abella, whom she credits for teaching her about generosity and courage. “To this day, my mother has never complained or asked for anything,” says Abella. “It was all about giving.”
During their first few months in Canada, the Silberman family lived on the third floor of a house on Oxford Street in Toronto’s Kensington Market. Prohibited by citizenship restrictions from practising law, Jacob was desperate to find work. He landed a factory job, but found the work difficult. A few weeks later, on a whim, he approached the Continental Life Insurance Company, located in the Tip Top Tailors building at Spadina and College. That day Jacob became an insurance salesman. The family moved into a house at Oakwood and St. Clair, and Fanny worked in the home office. The couple never looked back.
Abella describes her life at home with her parents as blissful, but structured. The television remained off from Monday to Friday. Weekdays consisted of school, homework and two hours of piano practice. The girls competed at the Kiwanis Festival every February and took their Conservatory exams every June. Accomplished pianists, they performed both together and separately, and even played Massey Hall. Abella earned the designation of Associate of the Royal Conservatory of Toronto and still enjoys playing George Gershwin, Irving Berlin and Cole Porter songs, particularly when she’s stressed. “The more pressure I feel I’m under, the more I find myself playing love songs from that era,” she says.
Reading was Abella’s indulgence. Every Friday after school, the sisters visited the public library at Dufferin and St. Clair, where Abella returned the three books she had borrowed the week before and checked out three more. “Every. Single. Friday,” she says. “It was a ritual.” At the age of nine, Abella read a novel that she says changed her life: Victor Hugo’s Les Miserables. “It’s all about a man and the most extraordinary injustice – the price he has to pay for stealing a loaf of bread. I can’t tell you why, but the book shook me to the core,” she says. “Reading Les Mis was the moment when being a lawyer wasn’t something I wanted to do because my parents thought it was a good thing. It turned into something I wanted to do so that people would be protected from those kinds of injustices.”
Abella attended Oakwood Collegiate in Grade 9 and Bathurst Heights Secondary School from Grade 10 to 13. She recalls having plenty of friends and says they didn’t care about clothes or hairstyles. “I didn’t know how to dress properly. I didn’t know what to wear.” She rarely dated.
However, she identified her future husband the first time she laid eyes on him. It was in her second year at U of T, in the basement of University College. She was helping organize an international teach-in. Rosie was in charge of hospitality; Irving Abella, a PhD candidate in Canadian history, was co-ordinating the seminars. Six years older than Rosie, Irving had just returned from working on his master’s degree in history at the University of California, Berkeley. “I thought he was so smart and so funny and so different from people I knew my own age. I was mesmerized by him,” she says. “But he was utterly disinterested in me.”
Abella went straight home and told her parents that she had met the man she wanted to marry. She didn’t speak to Irving again for three months. When she did, she asked him where he studied, and he told her the B storey of the stacks at Sigmund Samuel Library – so that’s where she studied for the next two years, in the carrel behind his. She repeatedly asked him out. He repeatedly declined until finally, she says, he ran out of excuses. “I was entirely driven by the fact that I thought he was incredible,” Abella says. They were married in Toronto on December 8, 1968, just two days before she was scheduled to write an exam in international law.
A hard-working student all through elementary and high school, Abella says that her years at U of T were when the “rest of me caught up – the social me.” It was during this time that Abella became aware of her full potential. “Even though there were only five women at the U of T Law School, I never felt for a moment that this was something I should not be doing. That says a lot about U of T. I came out of there thinking that there was nothing I couldn’t do.” Abella is the first female U of T graduate to have been appointed to the Supreme Court of Canada.
In the mid-1970s, Irving and Rosie had two sons, Jacob and Zachary. The demands of home and work were challenging, but Irving arranged his academic life so he could be home when the boys returned from school. As a lawyer and a judge, Abella had a gruelling schedule, but she came home for dinner every evening and together she and Irving would tuck their children into bed, before she headed back downtown to the office.
For several years, Irving’s salary as a history professor paid for a housekeeper. “That was a luxury,” says Abella. “In those days, journalists always wanted to do stories about how I was able to balance being a judge and being a wife and being a mother. But I would always say, ‘You are going after the wrong woman. I can afford help. Go after the women who are really struggling and still raising wonderful children.'” Today, Abella’s sons are both successful lawyers. Jacob (LLB 1998), 32, works in the Privy Council Office in Ottawa, and Zachary, 29, worked for the past three years on the Toronto computer leasing inquiry.
Early in her career, Abella began seeing how important the law is to helping people get justice. “I saw how I could use it in an active way to help my clients. It was the needs of my clients I was responding to,” Abella says. “I saw the way the law treated women. I saw the way the world treated women, and it took my breath away. That was when I developed the perception that there was much about the world that had been operating unfairly, because I hadn’t experienced unfairness myself.”
Abella is probably best known for her role as the sole commissioner on the Royal Commission on Equality in Employment. The federal government created the commission in 1983 to seek remedies for workplace discrimination against women, aboriginal peoples, people with disabilities and visible minorities. In her report to Ottawa the following year, Abella coined the concept and the term “employment equity,” which is sometimes described as the Canadian alternative to affirmative action. “Equality in the American context and everywhere else in the world had always been an Aristotelian concept: You treat likes alike,” she explains. “In the royal commission report was a notion of equality that acknowledges differences, and requires people to take them into account.” In other words, Abella recognized that the identical treatment of individuals may result in inequality. “Treating everyone alike means that the person in a wheelchair has the same right to work, but you’re not required to do anything to get him or her into the building,” she says. “If you don’t acknowledge differences you can’t create equality.”
Abella later played an important role in another equality issue – the rights of gay couples. In 1998, while serving on the Ontario Court of Appeal, she wrote a landmark ruling that extended survivor benefits to same-sex partners. The case involved two members of the Canadian Union of Public Employees. The women asked the union to extend the definition of “spouse” under its pension plan. The union agreed, but Revenue Canada refused to accept the extension for the federal Income Tax Act. In her decision, Abella wrote that the definition of “spouse” in the act violated the equality provision of the charter. “Bold and inspired,” is how U of T law professor Carol Rogerson describes Abella’s ruling. “It predicted the future course of the law.”
Abella has strong views on a range of issues, but says her role as a judge requires her to put the law above personal considerations. “The judicial function is a public trust,” she says. “You have to make sure that, as a judge, you take into account the evidence you are hearing, the public interest, the history of the issue and the principle at stake, and weigh all of this with a result that has integrity. You have to be open to the possibility that your preconceptions may be wrong or, at the least, that they can be changed by the evidence in front of you.”
Despite her long track record as a jurist, the case that Abella holds dearest is one in which she was not directly involved. In 1989, the Supreme Court of Canada overturned a statute that prohibited non-citizens from practising law. It was the same kind of law that had prevented Abella’s father from practising law in Ontario almost four decades earlier. In their reasoning, the Supreme Court judges drew on Abella’s definition of equality. It was the court’s first decision under the equality section of the Canadian Charter of Rights and Freedoms. “At that moment,” says Abella, “I could have ended my career very happily.”