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For the rule of justice and law

Justice Abella leaves the highest court with many admirers and a few critics. No one would dispute her life's work was her deep investment in equality.

Illustration of Justice Rosalie Abella

"She was a champion of equality rights, and she will be recognized as such." No one would disagree with the assessment of the Chief Justice of Canada's about his retiring colleague Justice Rosalie Silberman Abella.

On July 1st, the Supreme Court of Canada's senior puisne justice and its longest-serving current member, reaches the mandatory retirement age of 75.

"Someone who will give to the justice system [45] years of her life deserves great respect," Chief Justice Richard Wagner said in an interview, noting that Abella was first appointed to the Family Court in Ontario at age 29. "If only for the life and the time that she gave to become a judge, and to serve the justice system and everything that means – impact on her family, friends, a social life. We should have a lot of respect for that contribution."

Justice Abella certainly had more fans than critics. Former prime minister Kim Campbell appointed her to the Ontario Court of Appeal when Campbell was Minister of Justice in 1992. "At which time I thought she could well go to the highest court if she had a chance to get some serious judicial experience," Campbell wrote in an emailed response. "I was right!"

In the legal community, praise about Justice Abella veers towards the effusive.

"Justice Abella has made an indelible contribution to how equality is viewed and defined in Canada," says Audrey Boctor, partner at IMK LLP in Montreal. "The jurisprudence under s. 15 of the Charter would not be where it is without her."

Perhaps most striking, Abella's ability to walk in the shoes of the claimants reflects a predisposition that sets her apart from other judges. "She does seem to have a great deal of empathy for the claimants when she describes their claims and describes the inequalities that they have faced; it's always done with a lot of humanity and sensitivity, says Jennifer Koshan, a law professor at the University of Calgary, whose work focuses on Section 15 equality rights. "She's also very strong on the law, and has really made a big mark on the development of both human rights law and equality rights law."

Cheryl Milne, director of the Asper Centre for Constitutional Rights at the University of Toronto, points to Abella's writing in Fraser v. Canada (Attorney General), which affirmed substantive equality for women RCMP employees prevented from buying back pension credits after participating in job-sharing arrangements due to their child-rearing responsibilities. "You pay attention because she pays attention, and she gets it," says Milne. "All of those cases, whether at the Court of Appeal or at the Supreme Court of Canada, have really developed the law in Canada in a way that promotes equality, promotes substantive equality, and comes from a place of wanting to develop equity and a more just society."

Koshan also mentions the Fraser decision as emblematic of her approach. "A lot of people see that judgment as her swan song – a real attempt at try to clean the area up so that future judges, including lower court judges, would have more clarity when seeking to apply the law," says Koshan.

Abella's empathy extended to those who plead before her. She was inclined to help counsel with questions if they seem to be struggling, says Milne, who appeared before her at the Court of Appeal and many times at the Supreme Court. "I find that she's been always searching with her questions, always clearly wanting to probe the issues, but has always done it with a sense of collegiality and support for the counsel that is before the court," she says. "She's elevated the bench in that way, and with a sense of humour."

Among her critics is Mark Mancini, currently a Ph.D. student at the Allard School of Law in Vancouver, and until recently, the national director of the Runnymede Society. "My opinion is a minority one," he acknowledges. "But in assessing the legacy of any Supreme Court judge, because they wield so much power in today's current constitutional order, it's fair to point out where perhaps the exercise of that power went wrong, or where her approach leaves something to be desired."

A recent Maclean's interview illustrates a troubling blind spot in that approach, says Mancini. When asked about the accusations of judges being "politicians in robes," Justice Abella replied, "who's to say what my role is? Is there a tripwire I'm not seeing? An invisible line?"

"To many of us, there is a very visible tripwire, and that is the constitution itself, its text and its context, and the way it's been interpreted by courts since 1867," says Mancini. "Justice Abella, out of all of the judges on the Supreme Court, was pretty singularly surprising in her frank willingness to question the limits on her judicial role. That's something you won't see a Justice [Russell] Brown doing, or a Justice [Malcolm] Rowe doing."

Mancini cites the decision in Quebec (Attorney General) v. 9147-0732 Qu├ębec inc., in which the court ruled that the protections under Section 12 of the Charter against cruel and unusual treatment or punishment did not extend to corporations. "The majority said the most important restraint on interpretation is the text of the thing that's being interpreted itself," Mancini said. "Justice Abella, in her Maclean's interview, didn't seem to acknowledge that very important restraint."

Mancini is also concerned by Abella's dismissal of "textualism" in her reasons. It's a problem, he says, because without judicial restraints that come from the text or context of what is being interpreted, judging lapses into vindication of a judge's particular preferences in a given case.

"Without the pretense of actually interpreting something, and being limited in the judicial role, there's a real risk that respect for the law and respect for the court itself will be diminished, because the decision will just be regarded as a product of somebody's political desires," says Mancini. "I fear when Justice Abella says 'who's to say what my role is?' that's inviting that kind of judging."

Abella's critics tend to pile on her majority decision in Saskatchewan Federation of Labour v. Saskatchewan as emblematic of this legacy. In that decision, the court recognized a right to strike within the text of Section 2(d), freedom of association.

"That's an immensely controversial decision because, as she says, she's very much about the 'rule of justice' instead of the rule of law," says Mancini. "In that case, it meant that the constitution should evolve with the times to recognize this right to strike because of certain economic considerations when that case was decided."

Mancini took particular issue with this passage from Abella's ruling: "[t]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction."

"This was attacked by Justice [Marshall] Rothstein and Justice [Richard] Wagner in a separate opinion, and rightly so," says Mancini. "The court doesn't grant benediction to new rights as they see it from time to time. The court is supposed to interpret the law and determine what rights are embedded within the law."

Still, Mancini praises Abella's work in developing the term "employment equity" before her appointment to the SCC when she headed the Royal Commission on Equality and Employment.

Abella, who once chaired the Ontario Labour Relations Board and served as a commissioner on the Ontario Human Rights Commission, also left her mark in administrative law.

"She certainly has her own distinctive voice on the court, and there is a long series of cases where she has been very much a supporter of the expertise of administrative tribunals," says Milne noting that Abella had strong confidence in what administrative tribunals do, something she was clear about both on and outside the court. 

"I haven't always agreed with that approach because administrative tribunals need more checks and balances when you look at the politics and appointments of members of the tribunals," says Milne. "So I think sometimes her confidence in them was misplaced, but it comes from her own experience."

Mancini, doctrinally opposed to Abella's advocacy of deference to administrative tribunals, nevertheless praises her for shining a light on the legitimacy of the administrative state and its importance in the modern era.

"We do need an administrative state – there are too many governmental functions for everything to be centrally managed out of a parliament; and she was part of a generation that shone a light on that very fact," Mancini says. "While I disagree with her on the edges of what roles courts should have on acting against that administrative state, it's important that she worked with others of her generation to build some legitimacy of that project."

Less recognized, says Koshan, is Abella's reliance on international human rights law in her judgments. "We've seen a lot of that in the freedom of association cases under Section 2(d) of the Charter and in that 9147 case. She tried to articulate an approach for using international law, and it was a very broad approach – one that I think is very forward-looking in terms of the court looking to the best practices of other jurisdictions and borrowing where it can," says Koshan.

Abella wrote a concurring opinion in 9147. "It's consistent with how she's approached her decisions over time, but it was nice to see her articulate that as an approach and explain it that helps us look back on her previous decisions and make some sense of what she was trying to do there," says Koshan.

Koshan is more critical of Abella's tendency at times to muddy the waters, particularly on the test for equality rights violations under section 15 of the Charter by occasionally employing the term "arbitrary discrimination" or "disadvantage." This had the unfortunate effect of putting government considerations into play at the Section 15 stage of analysis rather than leaving those concerns to Section 1.

"She finally did correct that in Fraser, and said that there's no requirement on the part of a Section 15 Charter claimant to prove that the government's actions were arbitrary as part of their claim," says Koshan. "It's up to the government to deal with the rationality of their actions under Section 1, and I'm very glad that she finally cleared that up."

Koshan says she wondered if this related to Abella's personal life circumstances and family history. Born to Holocaust survivors, Abella's origins undoubtedly framed her career in law and her time on the bench. As her father was not a Canadian citizen, he could not practice law in Canada when he moved here.

"That was arbitrary – it wasn't based on his merit but on his citizenship," says Koshan. "I can see where her idea of arbitrary discrimination possibly came from, but at the same time, she has now recognized that it created an unnecessary hurdle for Charter claimants under Section 15."

And that's the last thing Rosalie Abella would have wanted.