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Justice Abella: Voice of the vulnerable | Lawrence David

Wednesday, June 30, 2021 @ 4:11 PM | By Lawrence David

Last Updated: Wednesday, July 21, 2021 @ 8:55 AM


Lawrence David %>
Lawrence David
When Justice Rosalie Silberman Abella retires from the Supreme Court of Canada on July 1, she will leave the court as one of the most impactful judges in its history and as the longest serving judge in the Canadian judicial system.

The first Jewish woman to serve on the Supreme Court and the daughter of Holocaust survivors, Justice Abella’s judicial career was devoted to the advancement of justice, equity and human dignity. In a 2010 lecture reflecting on the evolution of human rights following the Second World War, Justice Abella set out three principles that would come to define her jurisprudence. First, indifference is injustice’s incubator. Second, it’s not just what you stand for, it’s what you stand up for. And third, we must never forget how the world looks to those who are disadvantaged.

Through her steadfast commitment to these principles in law and in life, Justice Abella effectively became the judicial voice of the vulnerable. This was particularly the case throughout her 17-year tenure at the Supreme Court of Canada. Time and time again, Justice Abella refused to be indifferent and courageously took a stand for many disadvantaged groups in Canadian society. These include vulnerable workers, children, women, refugees, Indigenous peoples and the disabled.

In Saskatchewan Federation of Labour v. Saskatchewan [2015] S.C.J. No. 4, Justice Abella broke constitutional ground by holding that freedom of association protects a right to strike for unionized workers. This flowed from the importance of work to human dignity and from the need to address power imbalances between employers and employees. In Wilson v. Atomic Energy of Canada [2016] S.C.J. No. 29, Justice Abella strengthened the protection enjoyed by workers in federal undertakings by insisting on a just cause standard for dismissal under the Canadian Labour Code.

In Schrenk v. British Columbia [2017] S.C.J. No. 62, Justice Abella held that human rights codes protect against discrimination practised in the workplace not only by employers but also by fellow co-workers. In Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron [2018] S.C.J. No. 3, Justice Abella held that the duty to provide reasonable accommodation enshrined in the Quebec Charter of Human Rights and Freedoms applies whenever an employee is injured in the workplace. Justice Abella’s labour and employment jurisprudence has bolstered the protections enjoyed by vulnerable workers across Canada. This is on top of her groundbreaking Royal Commission Report on Equality in Employment.

Justice Abella used the law to alleviate the hardships faced by the ailing and disabled. In Council of Canadians with Disabilities v. VIA Rail Canada [2007] S.C.J. No. 15, Justice Abella held that VIA Rail would not face an undue hardship in providing reasonable accommodation to disabled passengers by requiring it to retrofit some cars to make them wheelchair accessible. In Moore v. British Columbia (Education) [2012] S.C.J. No. 61, Justice Abella drew on her human rights expertise to clarify the obligations of school authorities in providing meaningful access to education for students with learning disabilities.

Following the government of Canada’s failure to enact remedial legislation responding to the Supreme Court’s decision in Carter v. Canada (Attorney General) [2015] S.C.J. No. 5, Justice Abella played a central role in crafting an interim mechanism allowing superior courts to authorize individual applications for medical assistance in dying until the legislation was put into place (Carter v. Canada (Attorney General) [2016] S.C.J. No. 4).

Justice Abella’s jurisprudence also improved the fate of women in Canadian society. In Fraser v. Canada (Attorney General) [2020] S.C.J. No. 28, Justice Abella held that the Royal Canadian Mounted Police’s pension scheme adversely impacted and systematically discriminated against women. Her reasons for judgment further elaborated upon her groundbreaking jurisprudence on the Charter right to equality.

In Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux [2018] S.C.J. No. 17, Justice Abella held that legislation enacted by Quebec to address systemic wage discrimination against women perpetuated the very discrimination it was meant to alleviate by continuing the undervaluation of women’s work. In Bruker v. Marcovitz [2007] S.C.J. No. 54, Justice Abella held that religious freedom did not discharge a husband from fulfilling his contractual obligation to provide his wife with a Jewish religious divorce following civil divorce proceedings. In Dionne v. Commission scolaire des Patriotes [2014] S.C.J. No. 33, she bolstered the legal protections of pregnant women in the workplace under Quebec’s Act respecting occupational health and safety.

Justice Abella also authored powerful dissents defending the rights of women. In Quebec (Attorney General) v. A [2013] S.C.J. No. 5, her impassioned reasons would have found that provisions of the Civil Code of Québec addressing family residence, family patrimony, compensatory allowance, partnership of acquests and obligations of spousal support were discriminatory in being limited to private legal relationships between married spouses and civil union spouses and excluding so-called common law spouses.

In R. v. N.S. [2012] S.C.J. No. 72, Justice Abella’s reasons held that a Muslim woman’s religious beliefs would be interfered with by not being allowed to testify in a sexual assault case while wearing a niqab, and that she should not be required to remove it unless her face was directly relevant to the case. In M.M. v. United States of America [2015] S.C.J. No. 62, Justice Abella objected to the extradition of a woman from Canada to the United States facing Kafkaesque criminal charges flowing from her decision to rescue her young children from an abusive household.

Justice Abella’s empathy and sense of justice never wavered, whether writing for the majority or in her powerful dissents.

Bolstering the rights of children was another leitmotif of Justice Abella’s jurisprudential corpus. In R. v. D.B. [2008] S.C.J. No. 25, Justice Abella held that reverse onus provisions in the Youth Criminal Justice Act requiring young persons convicted of certain offences to justify why an adult sentence should not be imposed and why a publication ban should apply to protect their identity was contrary to the principles of fundamental justice under s. 7 of the Charter.

In M.M. v. United States of America, Justice Abella’s dissenting reasons insisted that the minister of justice’s discretion to extradite must be informed by the best interests of children, and that those interests would be undermined by extraditing their mother for rescuing them from an abusive household.

In A.B. v. Bragg Communications [2012] S.C.J. No. 46, Justice Abella admirably reconciled the importance of the open court principle and press freedom with the heightened vulnerability of children and the need to protect them from the harms of cyberbullying. Justice Abella also defended the rights of refugee children in Kanthasamy v. Canada (Citizenship and Immigration) [2015] S.C.J. No. 61, holding that the exercise of humanitarian and compassionate discretion under s. 25(1) of the Immigration and Refugee Protection Act must always consider the best interests of any children involved.

In the recent case of R. v. C.P. [2021] S.C.J. No. 19, Justice Abella also held that provisions of the Youth Criminal Justice Act denying an automatic right of appeal to youth offenders despite the presence of a dissent on a question of law in a provincial court of appeal amounted to unconstitutional age-based discrimination.

In all, Justice Abella paid special solicitude to the unique interests and vulnerability of children.

Justice Abella also contributed to the noble cause of reconciliation between Canada and its Indigenous populations. In 2016, Justice Abella authored the seminal judgment in Daniels v. Canada (Indian Affairs and Northern Development) [2016] S.C.J. No. 12. Daniels held that Canada’s Métis population, identified as Aboriginal peoples of Canada under s. 35(1) of the Constitution Act, 1982 also qualified as “Indians” under s. 91(24) of the Constitution Act, 1867. This confirmed that the Métis fall under the federal government’s jurisdiction and has since dramatically transformed the relationship between Canada and the Métis.

The culmination of a 20-year legal battle, Daniels drew upon important documents including the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission’s Final Report.

Along with former Chief Justice Beverley McLachlin, Justice Abella also co-authored the reasons in R. v. Kapp [2008] S.C.J. No. 42, which held that a special fishing licence program benefiting Aboriginal peoples in Ontario was an ameliorative program under s. 15(2) of the Charter and thus did not constitute reverse discrimination against non-Indigenous fishers. This decision cements the authority and legitimacy of Canadian governments from coast-to-coast to create ameliorative programs specifically targeting Indigenous peoples.

Finally, in Mikisew Cree First Nation v. Canada (Governor General in Council) [2018] S.C.J. No. 40, Justice Abella’s dissenting reasons reconciled parliamentary sovereignty and the honour of the Crown by extending the Crown’s duty to consult Indigenous peoples to the legislative development phase of the law-making process for any law that may adversely affect Indigenous rights.

This overview of Justice Abella’s jurisprudence protecting and advancing the rights of vulnerable populations is by no means exhaustive. It is but a glimpse into an illustrious judicial career animated by the reconciliation of legal excellence with a dedication to equity, justice and dignity for all. Justice Abella’s jurisprudence will continue to inspire and breathe life into Canada’s most treasured values. Her service to the country will never be forgotten.

Editors note: This article has been updated to reflect the fact that Justice Abella gave dissenting reasons in Mikisew Cree First Nation v. Canada (Governor General in Council).

Lawrence David is legal counsel with the Department of Justice Canada and served as judicial law clerk to Justice Abella in 2015-16. The opinions expressed in this article do not necessarily represent the views of the government of Canada generally, or of the Department of Justice Canada, specifically.

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