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Rosalie Silberman Abella, former Supreme Court of Canada justice.

Former Supreme Court justice Abella talks lack of international law, upheaval in U.S

Thursday, May 19, 2022 @ 11:23 AM | By Terry Davidson


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Retired Supreme Court of Canada justice Rosalie Abella feels Canada is in a “really wonderful place,” but is alarmed about a seemingly lawless world and a “totally unmoored” United States.   

These remarks came at the tail end of Justice Rosalie Abella: A Life of Firsts, a two-day tribute of the iconic judge’s career, legacy and life put on at the National Gallery on May 12 and 13. The event, organized by the Canadian Institute for the Administration of Justice, featured more than 65 speakers from Canada and abroad.

The program focused on Abella’s esteemed road to the Supreme Court, from which she retired in July 2021, as well as her personal history of having parents who survived the Nazi concentration camps and being born in a displaced persons camp in Germany before her family came to Canada as refugees in 1950.

Former Supreme Court justice Rosalie Silberman Abella

Former Supreme Court justice Rosalie Silberman Abella

During a fireside chat with political journalist Paul Wells, Abella touched on the mark she feels she left on Canadian law, as well as the current state of affairs both inside and outside Canada.

Abella said the event turned her thoughts to how Canada has progressed in social justice.

“I look around now, [and] I think Canada is in a really wonderful place,” she said. “Whatever people say about its deficiencies and the things we have to fix — and of course there are things — we are in an amazing place. What we’ve done for and on behalf of justice in Canada probably doesn’t have an equal anywhere in the world. We’ve done an extraordinary job in how we pick judges; in how we educate lawyers; in the academics that we train.”

But Abella was unable to say the same about other places in the world.

“There is a whole piece that’s missing for me, and that’s the global piece. And although I was really very proud to hear how people were talking about international law and the way it needs to have stronger legs and more pulse in the arteries and we have to give it more tenacity as part of the legal system and having contributed to that was really wonderful to hear, the big picture is a disaster.”

Abella pointed to high profile forms of global injustice: Russia’s ongoing illegal invasion of Ukraine; China’s persecution of its minority Uyghur population; and the Syrian government’s use of chemical weapons in 2013 as part of its civil war with Arab Spring insurgents.  

“We’ve lost the big picture, the world has lost the big picture,” Abella said. “Ukraine is only the most recent example. The Uyghurs in China; what happened in Syria, the red line that we allowed them to cross. So, we can’t talk about the rule of law. It doesn’t exist globally. So, we’ve lost the global legal order. And I thought about that in contrast to how stunning our successes have been in Canada, that around us the world is falling apart. There is no integrity to law in the international environment.”

Abella was asked if the United States is in any position to help fix the world’s legal ills.

Currently, the U.S.’s legal landscape continues to be rocked by the recent leaking of a draft opinion from the conservative-dominated Supreme Court that would reverse long-standing abortion rights born out of the landmark 1973 ruling in Roe v. Wade (1973), 410 U.S. 113.

To Wells’s question, Abella said looking stateside is not the answer.

“It’s totally unmoored, and it’s so discouraging to see what is happening,” she said. “Inappropriately, I will tell you, because it is frankly bad protocol to comment, but watching the possibility, as somebody who has lived in a country where rights have been increasingly expanding with each generation of lawyers, judges and academics and legislatures in Canada, the idea that … [there is] the possibility that you can cavalierly take away rights. Like, when we think about changing precedent in Canada, most of the time what we’re talking about is a time to include more — assisted dying, the prostitution reference. All of the changes that we have made, where we’ve adjusted precedent have been to include more — to expand rights. The possibility of taking a collection of settled rights that have been in place for … years, and then withdrawing them, is an approach to stare decisis that is really quite scary.”

Abella then noted the paramount 1954 U.S. Supreme Court case of Brown v. Board of Education, in which it was ruled that racial segregation of children in public schools was unconstitutional.  

“Think about it. It’s women, this one precedent they are playing with. Can you imagine if they had done that to Brown, just because they can? Because the numbers are there? … If they could say, we think Brown vs. Board of Education was always badly decided, and so we think segregation should come back. Conceptually, the idea of overturning precedent in a way that removes settled rights is something I’ve never seen from a court [in a democracy]. … So, do we look to the Americans for … guidance? We haven’t for a long, long time. … Canada has taken over as the world leader in how to deal with constitutionally protected rights. But to have a neighbour so close dealing with so many critical issues — dealing with polarization; dealing with a lack of respect; dealing with a lack of civility — scares me a bit because … these are borders that don’t have walls. We’re subject to what we hear and we may be influenced by it.”

On another note, Abella was asked if she had learned anything about her career and legacy from the two-day tribute.

“I didn’t really have a sense of the arc of what I was doing until the last couple of days, because I was just doing it. … To be able to get to a point where there is a two-day conference about your thinking, just by being who you are, and to know that that has, in its own way, created something people are prepared to think about, talk about. … But all along, probably like everybody else, I was just being me. And that is a gift, these two days of being able to hear that being me has led to other people thinking about me in a way that was constructive; that the footprints I laid down by doing the things that I cared about and that felt right to me were, in fact, useful to other people as well.”

If you have any information, story ideas or news tips for The Lawyer’s Daily, please contact Terry Davidson at t.davidson@lexisnexis.ca or call 905-415-5899.