Front Burner - Meet Justice Abella, the judge called Canada's Ruth Bader Ginsburg

Episode Date: September 2, 2019

Supreme Court Justice Rosalie Silberman Abella was the first Jewish woman to serve on Canada’s Supreme Court, has an internationally-recognized legal legacy, and is the longest-serving judge on the bench. So why don’t more Canadian’s know who she is? Pulitzer prize-winning journalist David Shribman got a rare interview with the judge, as her time on the top bench winds down. Today on Front Burner, David tells us about the judge who’s been called Canada's Ruth Bader Ginsburg.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hello, I'm Jamie Poisson. It's not just what the profession stands for. It's what it stands up for. And in these frenetically fluid, intellectually sclerotic, economically narcissistic, ideologically polarized, and rhetorically tempestuous times, a world that too often feels like it's spinning out of control,

we need a legal profession that worries about what the world looks and feels like to those who are vulnerable. So that is Supreme Court Justice Rosalie Silberman Abella addressing Yale Law School graduates and collecting yet another honorary degree. She has 39 now. My father went to the Jagiellonian Law School in 1930 because there was a quota on the number of Jews. He was one of very few admitted.

Justice Abella was the first Jewish woman to serve on Canada's Supreme Court. She has an internationally recognized legal legacy and she's the longest serving judge currently on the bench. As her time as a judge on the top bench winds down, David Shribman had the good fortune to sit down with Justice Abella, which is a very rare thing. He's a Pulitzer Prize winning journalist who teaches at the Max Bell School of Public Policy at McGill University. David's here with me now from Montreal to discuss Justice Abella's legacy

and explain why she's often called Canada's Ruth Bader Ginsburg. That's today on FrontBurner. Hi, David. Thank you so much for joining us today. No, it's my pleasure. I'm delighted to be here. People have called Justice Abella Canada's Ruth Bader Ginsburg. How come? Well, maybe the people call Ruth Bader Ginsburg America's Rosie Abella. Touché. What kind of similarities do they have? Well, first of all, when I contacted Justice Abella to do this, she was quite reluctant.

She says she had never sat for an interview for a personality profile. But when I also contacted Justice Ginsburg, she responded immediately, and she had this wonderful line that they were sisters-in-law. When you contacted Justice Ginsburg about Justice Abella. That's correct, yes. And why do you think she said that, that they were sisters-in-law? Well, I think she said that for two reasons. One, she's very, very smart and very, very agile with the English language.

And second of all, I think she's a soul sister with Justice Abella. They both have very strong feelings about the role of women in society and on the bench. They have very strong feelings about the rights of minorities in both of our countries. I'm a dual citizen, so I can claim both. And I think they're both not exactly the youngest justices, jurors on their respective benches. I know that you got to meet Justice Abella, and what's she like in person? Well, she told me that we were going to meet in Ottawa, and she said to look for somebody who was 5'10", very slender and blonde,

and she's about 5'2", dark hair, and maybe once was slender. So she's got a good sense of humor then. She has a great sense of humor, yes. How did you find her when you were sitting with her? Well, first of all, the question was how did I find her after her own description. But she was the most animated person in the hotel lobby, so it wasn't hard to find her. And I found her very congenial, very, very warm, astonishingly open, and very, very, very wary of a profile of hers. And this came out in another way later. This profile was in the Los Angeles Times, where I do occasional work now. And the editors of the Los Angeles Times

called her up and said, we'd like to take a formal portrait of you for this piece. And she basically went nuts, saying that we don't do this sort of thing. It's un-Canadian. It's unseemly. And you would have no problem doing that for Ruth Bader Ginsburg, who was in the subject of at least two movies and all sorts of other kinds of things, gives public speeches a lot more often than Justice Bella. And so maybe that's very Canadian.

Can we get into her life and upbringing a little bit? Justice Sabella was born in a displaced persons camp in Germany. Her parents were Holocaust survivors. And what has she shared about her family's experience? Well, first of all, her parents were separated during the Holocaust, each in different camps. And her mother snuck into her father's camp in a garbage truck, which at this distance sounds very romantic, but at that distance was probably very, very risky. But the difference, of course, between risk and romance has always been very, very small. She found him at the back of the camp. has always been very, very small.

She found him at the back of the camp. She knew, you know, there was like an underground, people knew where people were, where they had been. But she found out that he was in Theresienstadt. Found him, she said, at the back of the camp, listening to the radio because they were announcing who the survivors were. In any case, they finally found their way to Canada. I don't know how many Canadians know that the word Canada has special meaning in concentration camps. In Auschwitz, at least, the very best

duty that an inmate, a prisoner in Auschwitz could get was to be working in a place that was called, because it was less owners, it was called Canada. Wow. And so people who are accustomed, who lived in that milieu, had a special romance and a special appreciation for the values and virtues and openness of Canada, even the Canada of Mackenzie King. And so their parents, her parents, came to what was then basically the promised land. Hadn't been promised, of course, by Hitler, but promised in another providential way. And so they

made their way to Canada, where her father never did, or never was able to pursue the legal career he undertook. When we arrived in Canada as refugees in 1950, he applied to the Law Society to become a member of the Bar. He was refused because he wasn't a Canadian citizen. I don't think he consciously passed that on to his daughter, but she assumed it one way or the other. And it wasn't ordinary for a young woman, particularly a young Jewish woman, in a family that was desperate to assimilate, to have aspirations of that sort. And so she wanted to be a lawyer. But she also cautioned, and I'm sorry if I'm going on too long here, but she also cautioned that her life as a young woman, young Canadian woman, was not exactly coddled, but it was comfortable. And she knew only at a distance the rigors and difficulties of life.

Right. but she hadn't witnessed it until she became a family court justice, judge with children of her own and saw other people desperate to be able to care for their children and unable to do so and there were no women lawyers that we knew at the time and in fact when I had our first son

I didn't know any lawyers who were mothers. Can you tell me about her time as a family court judge? So I know that she graduated law school in 1970. As you mentioned, she followed in the footsteps of her father, who was a lawyer in Poland, but unable to practice law here. of her father, who was a lawyer in Poland, but unable to practice law here. She was, I understand, one of just a handful of women in her University of Toronto law school class. I can't imagine what that must have been like. But by 1976, she was appointed to the Ontario Family Court. She was only 29 at the time. And what did she learn at this point in her career? Well, first of all, we can say that even though she was only 29, very, very young, she did not peak early. She peaked later. But she learned about the difficulties of life, even in Canada, the trials and travails of people who did not have complete families the way she did,

didn't come from loving environments, or who had stumbled along the way, one way or the other. And she learned that the work of a judge was not to go to cocktail parties and to sit at high tables, but was to deal with the gritty underside of life. She deals with that less so now because the questions that come before her are sometimes esoteric and often amid the greatest legal debates. But at that period of her life, she was exposed to how life is lived, not how the other half lived, but how the other one-eighth lived.

All the people who came before her and family. Yes, right. I know in part from reading your profile that there are some other incredible watershed moments in her career. So in 1983, the federal government created this commission to address workplace inequities for women, indigenous people, people with disabilities. this commission to address workplace inequities for women, indigenous people, people with disabilities. And out of this commission, Justice Abella wrote a report in which she coined the term employment equity. The way I understand it, it's sort of like affirmative action. The idea here being that it's not enough to say a person in a wheelchair should be able to work the same as everyone else. You also have to make sure that they can get into the building. And this was adopted by the Supreme equality of success. But she wants the playing field to be, and she's uniquely unsuited to talk about playing fields, by the way,

but she wants the playing field to be equal so that the opportunity to succeed is there for all and that the various disabilities that some people may have or their minority status does not impede their way toward that goal in any way. Not to assure success, but to assure equal chance. And then I understand another big part of her legacy comes in the 1990s, another important equality issue. At this time, she was on the appellate court in Alberta, and she writes this landmark ruling that essentially extends survivor pension benefits to same-sex couples. Because of this ruling, a person in a same-sex relationship can leave their pension benefits to their partner when they die. Well, that's fundamental, really, in Rosie's view and many, many others, of course,

really, in Rosie's view and many, many others, of course, to what equality means. It's fundamental to allow the passage of the accumulation of wealth or achievement to a loved one of your choice and not to allow that right or privilege right now, of course, to be constrained only to heterosexual couples of what was once believed to be conventional arrangements. So that is a fundamental right and a fundamental element of equality that I think Justice Abella not only defined, but defended. So these big watershed legal moments that we've been talking about, how have people reacted to them? Well, some people have reacted with unvarnished trustility, people who don't believe in these concepts or who believe separately,

and this is not an illegitimate view, separately, and this is not an illegitimate view, that Justice Abella doesn't find legal basis for her inclinations, and she creates legal basis for them. Now this is what her opponents say. Obviously her ardent supporters feel that that's rubbish, but she does have critics. They believe that she's not a strict constructionist, certainly. They believe that she has a broad view of the law and of the prerogatives of the court.

The court has not resisted that, nor have the Canadian people. So it seems to me that she's won a big battle and that she, in some ways, is one of the most significant characters in modern Canadian life. Can you talk to me a little bit more about this concept of being a constructionist, a strict constructionist? When you say that, and when her critics say that she's not a strict constructionist, what do they mean? Well, a strict constructionist, generally speaking, is somebody who looks at the letter of the law is generally speaking is somebody who looks at the letter of the law and interprets it the way each word in a strict way with no leeway for interpretation and without the notion that those words in the law are living concepts and that can change with the times a someone with a broad construction looks at the law and says this law may have its antecedents in 1763

when there were, for example, no automobiles or wireless. And I'm making all this up, of course, but it's an extreme example. And that in a world with automobiles or even self-driving cars, we need to adapt the precepts that underline this law and to modern times. So I think Justice Abella is of the latter category. She's not a horse and buggy justice. And because this is not a horse and buggy country anymore. I've seen her say that essentially the role of majority is to elect lawmakers, but it's not her role as a judge to be guided by a majority view. What do you think she means when she says that? Well, having lived a life that was made possible

by survival from the most depraved moment in contemporary history. My justice journey, in fact, my life's journey, started with the injustices revealed at Nuremberg. Who I am, what I am, what I believe in, and what I hope for all started with the Holocaust. 200,000 European Jews survived the Holocaust. Three of them were my parents and grandmother. I am proud of many things in my life, but nothing makes me prouder than to be the child of Holocaust survivors. She is open to, congenial to, and favors any element that offers justice, offers fairness to oppressed minorities. And I don't think that's anything that she would object to my saying. And I think that she would go on to say that those who survived the Holocaust

or who are related to those who survived or are issue of those who survived, she believes they have a special obligation to assure a fair and just society, particularly since they and their relatives were denied some. There's an incredible quote from her, just this year actually. You cannot be born in the shadow of the Holocaust to two Jews who survived it without an exaggerated commitment to the pursuit of justice. Justice Abella is 73 years old now. The age that you must retire from the Canadian Supreme Court is 75.

Does she seem like she's slowing down to you? Well, I mean, I think she has enough energy to light a small city, maybe not Hamilton, Ontario, uh surely some other small cities she uh she's um she has a gift for friendship because everywhere i go in this country and in others oh we know we know uh rosie um so she's sustained both by her energy her and her passion but i also think for a gift for friendship I've run into about 12 people who told me that they are her best friend. Oh, that's really interesting.

Maybe you are. Maybe you are. I would love to be Justice DiFello's best friend. Before I let you go today, you write that she loves George Gershwin, which sounds kind of perfect. She's a classically trained pianist too, right? That's right, but George Gershwin wasn't a Canadian, but I thought that she personified a line in a Gershwin play.

It's a song, and it ends this way, shining light and inspiration worthy of a mighty nation. And it's a wonderful song. It's from the song, from the play Of Thee I Sing. It goes, Of Thee I Sing, baby, which kind of takes some of the solemnity out of it. But she's a shining light and inspiration and worthy of a mighty nation. Thank you so much, David. We really, really appreciate you taking the time to chat with us today. Thank you so much, David. We really, really appreciate you taking the time to chat with us today. Thank you. That's all for today.

Thanks so much for listening and see you tomorrow. and see you tomorrow. Shining star and inspiration Worthy of a mighty nation Of The I C