The Paikin Podcast - Justice Rosalie Abella: From a Displaced Persons Camp to the Supreme Court of Canada

Episode Date: November 15, 2025

Steve goes back to school. In this case to a Canadian Studies class at Harvard where he interviewed Justice Rosalie Abella about her early life, being born in a displaced persons camp in post-WWII Europe in 1946, how she knew at a very young age she wanted to be a lawyer, the difference between the Supreme Courts in Canada and the United States, originalism versus a “living tree” interpretation of constitutions, and how we should understand just what exactly is happening in the US Supreme Court in 2025. Follow The Paikin Podcast: YOUTUBE: https://www.youtube.com/@ThePaikinPodcastX: x.com/ThePaikinPodINSTAGRAM: instagram.com/thepaikinpodcastBLUESKY: bsky.app/profile/thepaikinpodcast.bsky.socialEmail us at: [e-mail]

Hi, everybody. Steve Paken here with a bit of a different episode of the Paken podcast for your consideration today. A few weeks ago, I got invited to go to Cambridge, Massachusetts to participate in something kind of cool at Harvard University. The former Supreme Court of Canada Justice Rosalie Abella was invited to speak to a Canadian Studies class at Harvard's Weatherhead Center for International Affairs. But Justice Abella thought, rather than just doing a speech, might it be a nice change to have Steve Pagan come to campus and interview me in the class instead? So that's just what I did. Justice Abella was not a typical Supreme Court judge, and we were reminded of that almost instantly. As Ayelet Shachar, the William Lyon McKenzie King

visiting professor in the Canada program, was introducing Abela, her cell phone began to ring. And wouldn't you know it, her ringtone, was the free. first few bars of one of Frank Sinatra's greatest hits, New York, New York. So that's where our conversation started, and it continued with a look at her impossibly unlikely journey, from her birth in a DP camp in post-World War II Europe, to the highest court in Canada, and everything in between. Madam Justice, Rosalie, Silberman, Abela, and yours truly on the Paken podcast. Oh, my God, that is hilarious. Hi, Zachie.

Oh, that is perfect. Anyway, Johnny, I love you. Can I call you later? I would like to spend a little bit of time talking about you, since we're talking about you, and then broaden out and talk about some of the issues that I know continue to dominate your thinking. So let's start with this. On the 79th anniversary of the creation of Canada, July 1st, 1946, what other thing happened on that date? This is a skill testing question. and if you don't know the answer

you will still pass because why in the world would you know the answer so I was born in Germany on July the 1st, 1946, go figure and everybody here says wow July the 1st and I say to them it was no big deal in Germany

on July the 1st. What citizenship did you have when you were born? Stateless. I had no citizenship. For how long? Until my parents became citizen. citizens in 1955. So we came to Canada in

1950. All of my memories are happy in Canada and in Germany. And here's the interesting thing. It wasn't in the movie. But what amazed me, they spent

four years, almost four years in concentration camps. They got married on September the 3rd, 1939, the day the war, officially started. They found each other after the war, how that happened. I don't, the miracle of the two of them surviving. And my mother rode the rails from Poland, where she went back to the factory that they owned, to Regnstadt, where she found out that he was and snuck him out of the camp because there was a typhoid epidemic and they weren't allowed out. Anyway, in Germany, the mother tongue,

what they spoke to me was German. And when I reflect on that now that they should go through concentration camp, they were Polish. They spoke all their secrets in Polish, which is why I learned Polish. And my grandmother never learned English. She spoke Yiddish, so I spoke Yiddish to her.

But when I came to Canada, when I was four, when they finally let us in, and they were not letting in Jewish refugees. Those of you who know my husband's book, none as too many know that Canada's foreign policy was to keep Jewish refugees out. So when we finally came to Canada in 1950, I spoke German to the kids on the street, and they wouldn't play with me because their fathers had been in the war fighting Germans. Why did your parents pick Canada?

I had asked that question many times. Why aren't we on Broadway in New York? What are we doing in Canada? Yeah. My father worked with the, as was a lawyer, and worked, taught himself English and worked with the American judges and lawyers in the Allied zone in Stuttgart. And he found the pace, he loved them. They really, they were wonderful to him. They really restored him and gave him back his belief in the possibility of justice, which he had understandably lost. It never had a chance to practice law. But he wanted to go to some place that was peaceful. And he found the energy of the Americans a little much, he said.

But he had a cousin in Canada, and that's how we ended up coming in. But the first thing he did was go down to the Law Society to find out what tests he had to write to practice law. because the Americans had given him tests, and that's how he ended up practicing for the Americans in Germany and helped them set up the system of displaced persons' legal services. So he came to Canada and went immediately to the Law Society to see what he had to write to become a lawyer. And they said, you can't because you have to be a citizen.

So what did he do? Became an insurance agent because being a citizen in Canada in those days would have taken five years and he had my mother, my grandmother, and my sister and I to support. And he never complained. But it was the moment that I decided I was going to be a lawyer. If he couldn't, I was going to be. Four years old, not a clue what being a lawyer was. And all my life, when I was in public school, high school, people said, what are you going to be when you grow up? And they in those days asked girls what they were going to be expecting the answer, Mary didn't have children.

That was the career. That's what one did. And I wanted to do that too because I was Jewish. And so I had no choice. If you're Jewish, you have to get married and have children. But I said, I want to be a lawyer. And they would pinch my cheeks and say, that's so adorable. No, really, what do you want to be?

So I just kept going because I was revealed. revenge focused on his not being able to do it. And then it clicked when I read Les Mzre when I was 13 years old about this huge injustice of somebody who was in jail for 19 years because he stole a loaf of red. And that's the moment when my childhood, unrealistic dream, clicked in with something that made sense and then I just never let go.

How angry was your father about having his previous career taken away from him in Canada? I never saw or heard bitterness from my parents, anger, resentment, even regret. It was the happiest home, as I told Barry in the documentary,

of any of my friend's homes. Now, we were in a neighborhood in which there were no Jewish kids except my sister and me and maybe two or three. other families. They had all moved up north by 1950. But I can tell you, there was joy in my house. My grandmother and my father and mother were so loving and so supportive and so encouraging, but also you have to pay back Canada for letting us in. We got the very clear message.

They never had to say, I want you to stand first in the class, but I knew. that I had to do everything I could to let Canada know they didn't make a mistake in letting us in. What year did you become a lawyer? I finished law school in 1970, which was really the beginning of a revolution in Canada in law. Until then, it was pretty stodgy. We followed the British. I looked at the Americans with envy because their Supreme Court was so

aggressively protective of rights and visionary and just expanding borders of the status quo. Used to look at it with envy? No, we'll get to that later. Hold off on that. No, we won't. Was your father a ram where you became a lawyer?

He died a month before I finished law school. So I didn't go to my graduation. I think the first law graduation I went to was when my son, they both graduated from law school, different ones. I couldn't bring myself to go with. But he knew you became a lawyer. He knew, and that was because of the professors at the University of Toronto Law School. So law school, which had been my dream, there were three adults in my house, my mother, her mother, and my father. First year law school, I was all keen sitting in the front row and I was such a brown nose. I had my hand up for every, I just, I had studied, I was, I was ready to answer any question. I was so obnoxious. And then about a month in, my grandmother got cancer and died just before my Christmas exams in first year. When I phoned home, as I did after I got married,

One of the calls just before my second year exams was my father telling me that he had cancer and he died right before I finished law school. So I didn't want to get an articling job. I didn't want to finish. There was no point to being a lawyer if he wasn't there. And the profs at the law school said it would be important to him to know that you're carrying on. So they arranged for me to find an article. job because I tried. But, you know, I dressed wrong. It was 1970 and I was wearing the short skirts

that everybody wore and I had dangling earrings and I had long hair and I was married and I was cute and bubbly and so not like a lawyer was supposed to be. So nobody would hire me. So these profs arranged for me to get an articling job with a very nice law firm. And I don't think I would have been able to do it otherwise. And they were right. I brought home a letter when the law firm hired me saying, we will accept you as an articling student. And I showed it to my father who was in bed. He couldn't get out of bed for a couple of months. Stayed home. My mother never let him go to the hospital. She took care of him the whole time. So he saw that I was going to be a lawyer. But the graduation was just something I couldn't do. But I'm sorry, I'm sorry that he wasn't there

to see what happened, but he is. And my mother was there for the next 40 years. And he at least met my husband. He was there at the wedding. He died a year after the wedding. So he knew that I was going to be with somebody who cared about making sure that I could be what I wanted to be. This is a bit of a familiar theme in your broader family's life, that you have these moments of really quite magnificent triumph, but they are almost always punctuated by these moments of tragedy, which even, you know, all these decades later obviously still affects you. Yeah, it's amazing, isn't it?

I don't know why it still remains so fresh. It's not a wound. it's just I'm I'm wistful about I'm so grateful for how lucky I've been and I have I was lucky to have the parents I had I was so lucky to have the husband that I had and so I keep thinking about how lucky I was but there's an undercurrent of maybe it's the family story I don't know but it feels to me it feels transcendently happy with that underlay

which is remember Isaiah Berlin's line there's no pearl without some irritation in the oyster there is a constant understanding that you take nothing for granted you take no one for granted

it's not about a sense of entitlement which most of my fellow law students had and lawyers had of course it'll be this way it was like this for my father father, it'll be like this for me. For me, it was all, wow, really? I get to do this. So that never has

left me, that sense of wonder at what I'd been able to do in Canada by virtue of Canada's generosity. And now, Harvard's, I was going to say the United States is generosity. We'll see how my quarter-crossing scope. But there were four women in your class, right? When you graduated. Five or six. Yeah, which is just imagine that. Out of how many?

Out of 150. Out of 150. But I was the, I had the easiest time. They all married fellow law students. And I was already madly in love with Irving Habella, who was madly in love with somebody who wasn't me. But I, so I wasn't part of the soul. social set. All the other women in the class were, I mean, it was kind of wonderful because they got great, they married lawyers. And they were great lawyers and they were happy. And I had this history professor I was crazy about. I have to tell you, I don't know why I kept trying to wear him down, but I did. The summer he said he was going to Europe with his best friend. I said, what a coincidence.

And there I was 19 years old, he's 25, he's getting his PhD, I'm a pain in the neck, and I follow him to Europe where he said he would leave for me a message at the American Express in Paris. I went every day for six days, no message. And when I look back, I think, why would he want to hang out with me when he's driving around Europe, meeting grown-up people but I never gave up on him I never never gave up on him and that again luck how do you know when you're young and you decide this is the person you want to spend your life with that it will in fact be a person you can happily spend your life with so isn't that lucky. I'm really sad that he's not here. But I had him for 54 years. That was pretty great.

That's a good run. Yeah, it was. How old were you when you got appointed to the bench? 29. 29. Was there a part of you that questioned whether you were old enough to be a judge? No. Why not? I never questioned opportunities. I mean, I didn't pick up a phone and say, you know, I'm 29 and I'm seven months pregnant with my second job. I think I'd like to be a judge. I never did that in my life, but I never said no to the phone calls. Do you remember Sammy Kahn, the songwriter, was once asked Mr. Kahn, what came first the words of the music? And he said the phone call, which is my career.

The phone rang. Are any of you law students here? No, one law student. But you're young. I have to tell you that what my career is the result of the following. I had no goal except to be a lawyer. I just wanted to be a really, really good lawyer. And so whenever somebody phoned and said,

do you want to be this? Do you want to run a labor board even though you don't know any labor law? Do you want to run the Law Reform Commission, even though we're thinking of shutting it down? Do you want to do a report on equality and employment, even though everybody wants nothing to do with affirmative action? Controversy risk, controversy risk. I didn't care because there was no ultimate goal that I was risking for going. So the lesson is to say yes. the lesson is have a good time

and you'll end up on the Supreme Court of Canada but that isn't the way it works now I think the programming is have a goal and then do everything you can to meet that goal be very careful keep your head down. It's more strategic today yes I think it really is and for my fellow classmates it wasn't a matter

of strategy it was we're going to a big law firm we're going to do very well in a big law firm and we're going to stay at a big law firm until one day after 30 years we may get to be judges. I didn't even know any judges when I became a judge. So did I think I was too young?

Look, I wasn't like any other lawyer I knew. So I knew I was different, but I never felt I didn't belong. And that's my parents. That's my parents. That's their just because I knew how they, much confidence they had in me. I was not insecure about this, because it wasn't mine. It was, they gave it to me. I want to push back on that a bit because you had every reason

to feel insecure. You were not a man. Your life didn't start in Canada. There were plenty of obstacles to your being, what you ultimately became. So what... And, and I lost the Miss Bathurst Hight's Prong Queen Contest. I mean, does it get worse than that? So embarrassing. To a beautiful girl. What is that about beauty contest? They are about you.

But I wasn't insecure about who I was. So other people were nervous about who I was, maybe. My teachers were very supportive because school is a meritocracy. If you do well, you get the marks. So I got the marks because I worked harder than anyone in the class. I asked for extra homework. What a brown nose. I just, and I played piano two hours every day.

So on top of everything else, it was important to my parents that I, that I have a musical background. So I finished my diploma. You still play? At the conservative, the minute I, well, two hours a day, I wasn't a natural the way my sister is. So when I finished, I told my father I was going to go out with voice because I didn't want to spend two hours a day playing piano anymore. But then I discovered Irving Berlin, Cole Porter, George Gershwin, and I started to play not the classical grown-up stuff, the other stuff. But what I realize now, they said, and I was in the Kiwanis Festival every February,

the conservatory exams every June plus the school exams, what they were doing was training me for hard work. I never in my life felt I've got too much to do. As you make your way up the judicial food chain, you get a call, again, it starts with a phone call. Who called you from the Prime Minister's office to say, we want you to be on the Supreme Court of Canada? Can I go back just to tell you about the one thing I am secure about and was always insecure about? So professionally, I never had any insecurities only because I knew that I was never afraid to ask people questions. I never felt I had to show that I knew everything, even though I didn't know anything.

So I was genuinely modest about my lack of knowledge because I had it, a lack of knowledge. I was insecure about whether this experiment of being a mother who was a lawyer was going to work. In what respect? Well, I knew that if you worked hard at law, you could do it. Like there were books, there were cases, there were people you could have. task, it's a profession. You could figure out how to be a good lawyer or judge. There were no books on how to be a good parent who was a mother, who was a lawyer and a judge. And I wanted to be a mother. And I wanted my kids to be happy people. And so, whereas professionally, I never worried

that I wasn't going to put in the time and the effort and ask the people how to do this job right. This was the way I raised my kids. Fingers crossed. Fingers crossed. I really hope this works. There was no role model. There was only an incredible husband and father. They used to tell people they had two mothers.

One of them had a beard. And he did carpool. he was there every day at 4.30 when they came home. I came home every day at 6 and then went back down every night after I put the kids to bed. And he usually came with me because we had a housekeeper. And then it got to be 9 o'clock and then at 10 o'clock, I would say, you know, I think you don't need me to put you to bed anymore. You're 17 years old and 20 years old. And so I would go late. But it was always putting them first. and just hoping it worked out. You just don't know with kids. So at what point did you realize, you know, I got this right, too. It worked out. Yesterday.

I'm guessing before yesterday. Yeah, that's right. As long as they keep phoning me, it's, anyway, what was your question? The call from the prime minister's office. Who called? First, the attorney general called. Erwin Kotler called. It was a very interesting time, as you may remember.

There were two vacancies in 2004. The press, you wouldn't remember this, Jacob, but the press was very committed to my not getting one of those two spots. I was very controversial. I'm just going to say, as sort of the, member of the press here. I'm not sure that's completely accurate. The printed press was very clear in, I'll give you an example. There was an article after the Kentucky Derby. There were two vacancies on the Supreme Court of Canada that occurred in February. No one expected them.

They were both resignations before age 75 by people who were very good judges and had every expectation we thought that they would be there for a very long time. So nobody expected any vacancies, let alone two of them. So this article is just one said it was the justice reporter who later became a friend. After the Kentucky Derby, he, what is it called when you, when you guess who's going to win and who? There's a sports term, isn't there? For, when you guess which horse is going to win? Yeah, it's betting, but... Joccing?

They say the odds are, when they give the odds. Oh, okay. So the odds were that a woman named Louise Chiron was going to get it. Those were the top odds. She was an excellent judge. And at the bottom, least likely to get it was me. But you should say why. I mean, those articles you're referring to, which I can see,

you're over now. Those articles... They were so mean to me. They were so mean to me. They asked the question, they asked the question whether somebody as obviously high profile as you

who enjoyed being out and about and having a good time. And you were not one of these judges who was a shrinking violent and refused to be seen in public. You were seen in public. You enjoyed people. You enjoyed going to things.

Whether that was consistent with being the kind of judge Canadians expected. I think it was, even deeper. It was probably that too. I mean, the one thing, you have to tell me whether that's changed. You could be an exuberant male intellectual, and people are very comfortable. In fact, they like you better because you've got the brain stuff, but you're also fun. Girls, I mean, really, are you, can you be an intellectual and still love going out, love meeting people,

He's love, and I was one of those Gershwin people. I love Rhapsody and Blue, but I also like Embraceable You. So I wasn't consistently the image, if you're going to be a female intellectual, you've got to be a serious intellectual. So there was that. But the more important thing was I kept pushing legal status quo boundaries. So I wrote the first gay rights appellate decision. The Royal Commission on Equality and Employment recommending that there be affirmative measures, I didn't call it affirmative action, I called it employment equity,

to make sure that indigenous people, persons with disabilities, people who were not white, women got into the workforce because they had not been included in the workforce. That was hugely controversial. What else did I do? rights, labor, labor rights. So I was writing all of these decisions that were saying, come on, we're in the 20th century, then we're on the 21st century, pushing borders. And when you push the status quo borders, you're messing with somebody's sense of entitlement. Not two prime ministers, apparently, both of whom gave you big promotions and from different parties. And this was,

so Brian Mulroney put me on the court of appeal. Conservative. Conservative. Paul Martin, put me on the Supreme Court. Liberal. When you say that to an American audience, they're just blown away. But it used to be the case here, too, in the United States, that you would have Republican nominations that were supported by Democratic nominations.

But that was, that was again because there were two vacancies on the Court of Appeal and on the Supreme Court. And one of them was the woman who was handy, handicap, that's the word, as being the best person to go on the court. And she was an outstanding jurist. They were right to put her on. So I was scary to a whole lot of people who weren't sure about how much change was a good idea and whether, if there was going to be change, was it up to the judiciary to make the changes, or was it something the Parliament should do? So that's a

classic debate about the relationship between majority opinion and whether democracy is about reflecting the wishes of the majority, or whether, as in my view, democracy is checks and balances. Legislatures respond to public opinion because if they don't, they don't get re-elected, but there's got to be one independent body that isn't worried about public opinion and can do the controversial thing if they think it's the right thing to do, overseen by the media, an independent media, which holds the mirror up to tell us whether we're the fairest of them all. But we also have this clause in our constitution in our charter, which says if you've made a decision that we think is nuts, we can set it aside. So there is that,

you want to call it a safety valve or what do you want to call it? I don't want to call it anything because for the Supreme Court of Canada at the moment. It is, actually, yes. It's notwithstanding clause of our Constitution, notwithstanding. So I was very controversial both times. And women's rights, my goodness, all of the women. But again, it never occurred to me not to do any of those things, make any of those decisions, because they felt like the right thing to do.

And the composition of the court changed. I mean, do I have to tell you that? the unspoken story is it's all about who the judges are so the first six months first six years that I was on the Court of Appeal I was in dissent a lot of the time this is the Ontario Court of Appeal

the composition of the court changed many of the older judges were replaced by younger judges and suddenly I was in the majority or unanimous most of the time the Supreme Court the nine of us I would say I was in within either supporting or writing for the majority most of the time in dissent a fair

bit but it was by no means predictable it's a very good Supreme Court can we let's follow up on that because you obviously were inside the inner makings of the Supreme Court of Canada you know how that works you watch the Supreme Court of the United States and you have a very close friend in Sonia Sotomayor, so I presume you to compare notes from time to time, and you have some sense about how it works down here. Do you want to compare and contrast? Sotomayor.

Oh, yeah. Yeah. She is a friend of yours, right? Yeah, I like the judges that I know on that court. I think it's very hard for them. I'm not telling you anything confidential. I just see if I were in dissent on me, issues most of my time on the court I would find it difficult I never knew

whether I was going to be in the majority or in the dissent on the Supreme Court of Canada because there was nobody it wasn't ideologically fixed the judges weren't on the whole predictable as being hard line on this or hard line on that so I would often in the in the morning say to my husband I I don't know how this case is going to go. Do you remember what you said at the public screening of your documentary? No. I'm going to remind you because it was at a theater.

They played the movie. After the movie was over, Sonia Sotomoyer was there. She had come up to watch the screening and to do a Q&A afterwards. And I don't think you knew the mics were on at this moment. It might have been a kind of a hot mic moment that you didn't realize. And you leaned over her and said, so what is with your court anyway? I knew the mics were on. Oh, you did know.

Oh, absolutely. And you said it anyway. I did because it was a screening and who cares. And she was really wonderful to come and she, I mean, she's a grown-up. So what is it with the court down here anyway? I don't know. You have to ask Glenn. Glenn, what's with your court here?

It's a very, it is a very interesting thing to watch. First of all, there are so many differences in the way. Our nine judges think about what the rule of law is, and this group of nine judges seems to think the law is. Did you all like each other in Canada? Yeah, pretty well. I would say we did. Yep.

Good collegial relations, mutual respect. Yeah, I don't know, but we got along. Okay. Does that appear to be the case down here? I don't know what's going on down here, except that, except this. The fundamental difference, as I see it at the moment, between how the two courts approach the Constitution, because that's the main, that's the rubicon that divides our two approaches. I think you can find torts judgments, contract judgments, copyright judgments, where we would decide pretty well the same way, no longer criminal law judgments. But the constitutional differences are profound now.

they probably always were but I never noticed it we are now the Supreme Court of Canada became when we got a Charter of Rights and Freedoms much like the Warren Court was in the United States in the 60s and into the 70s I would say even while Warren Berger was the Chief Justice but then not so much after Rehnquist

what is the difference believe it or not it was a British judge who gave the Canadian judiciary direction on how to interpret the Constitution. There was a case called the person's case where five women in Alberta, which is one of our ten provinces,

the United States is our 11th, wanted to be appointed to the Senate. This is 100 years ago. 100 years ago, 1928. 27 first and then 1928. And they went to court in order to have the right to go to the Senate. And the phrase in the Constitution was, persons can be appointed to the Senate. The Prime Minister can, or the Governor General, can appoint persons to the Senate.

And they refused to appoint women. And so the women went to court to argue for the fact that in the Constitution, and our Constitution until 1982 was federalism. What does the federal government do? What does the provincial government do? That's all it did, the vision of powers. So who gets to appoint, who gets appointed to the Senate? The Supreme Court of Canada said the word persons,

you have to look at what the intention was at the time of the Constitution. Persons did not include women. Hold that thought. It goes to the Privy Council where our appeals from the Supreme Court went in those days until 1949 when Canada, when the Supreme Court became the last decision-making court in the country. We cut our ties to the Privy Council. The Privy Council, the new Chief Justice, Lord Sankey, said, that's ridiculous. You can't look at constitutions as written in stone.

Constitution's are, and this is the phrase, a living tree, and they have to change and evolve with the times and with changing realities. And so persons, whatever the original intent was, are you catching this, is irrelevant? It's a question of now, and in modern times, persons includes women. So our mantra for constitutional interpretation, by the time we got a charter of rights and freedoms, which constitutionally protected rights in Canada, we built on what the American Constitution had. Every modern post-World War II democracy built on what the American Constitution did, but it got adjustments based on World War II, the Universal Declaration of Human Rights, the civil and political rights, all of those things came into First Germany's modern, postmodern

constitution, and then Canada's Human Rights Charter in 1982. And so out of the gate, I wasn't on the court, but I loved watching it. We had a Chief Justice, Brian Dixon, and our first woman, Bertha Wilson, the same time as America, same year as America got Sandra Day O'Connor. 1981. You've now had, I think, five women in the United States on the Supreme Court. Is that right? Are there five? We've had 12. We just kept doing it because we thought it was the right thing to do. But anyway, our charter, which built on your civil libertarian theories, and that's an important thing to remember, your American notion of rights, which comes from the desire

to get away from George III and from government, which was felt to be unreasonable, is an individualist-focused civil liberties right to be free from an unreasonable state. Canada and most post-World War II constitutions also believe in that. But they also learned the lesson of World War II, which is about you can be hurt because you're an individual who's a member of a group. And so we have group rights. Your right is an individual because of your identity in a group. That's called human rights.

So we have civil liberties and human rights helped by the fact that our constitutional framework, even under division of powers, was that there were two groups at the constitutional table, the French and the English. The indigenous people weren't at the constitutional table, even though they were the first citizens. of Canada. And so we just have in our DNA the idea that you could be different because your group is different, but still be equal. So our whole approach is constitutional evolution with the underpinning of civil liberties and human rights. The idea that ideas evolve, concepts evolved, I think the first case that was decided, I told you about 1929, forget about

originalism, the first case that was decided under our Charter of Rights and Freedoms, where the government argued in 1985 about whether our provision on life, liberty, and security, the person was meant to be procedurally protective or substantively protective. the argument the government made, the deputy minister, he brought the notes from the constitutional discussions where the government said, we intend this to be procedural. It's not meant to be a substantive doctrine. And the Supreme Court of Canada unanimously said, that's nice.

That was then, we're not going there. We think it's procedural and substantive. And that was the end of originalism in Canada. We just, so we don't have. that theory, but neither did the United States until 1982 have originalism. And we don't have textualism. We're not tied to the words. We're respectful of the words, but we're not tied to them. So we're not tethered to the same anchors that American constitutional law at the moment appears to be tethered to. And neither is any other constitutional democracy in the

Western world, not the German Constitutional Court, and Ayelet knows all about this, not South Africa, England doesn't have a constitution, but the countries that have constitutions, post-World War II constitutions, don't have any of those theories, or levels of scrutiny. Ask your friends what the difference is between strictly looking at something, moderately looking at something, rationally looking at something, rationally looking at at something. And I'd always remind people that Korematsu, the decision about whether it was constitutionally permissible to intern Japanese Americans, when the court said it was permissible, it was done under strict scrutiny, which means you have to look really hard at whether this is

okay. So all of those tools that exist here don't exist anywhere else, and it feels to me like it's becoming increasingly sclerotic of rights, which is sad because this is the country we learned about democratic rights from. Did you ever meet Justice Scalia? I saw him. I met him, but he was very socially, extremely charming, appealing. He was charismatic. But you never had it out with him on this.

Oh, God, no. That would have been fun. Oh, he would have won. He was so good on his feet, and he made his arguments very seductively. And clearly, I mean, he became the, his ideas, originalism, textualism, his approach to the charter, to the Constitution as being strictly construed, which I think they would argue is a new. approach. They don't see this as a constitution being required to protect and expand rights. That isn't their mission. Very influential, I think that. I think you would have to say that that is the operative intellectual interpretive framework for the Supreme Court's approach.

Can I get one more question then? We'll get everybody else in here. Absolutely. You, when you got appointed to the Supreme Court of Canada, I don't think had to go through appearing before a parliamentary committee and getting roasted and all of that stuff. They do that down here, obviously. It's a completely different system. You've seen how they do it. You've seen how we do it. Discuss. I actually don't know what we do anymore, but I don't do anything. Good. We had, we had for a short while. We had a, we had, gentle committee hearings. We had an appetizer. We didn't actually do it. I remember your profession.

loved the hearings. In the states? In the states. They were great theaters. They were really, but they were not, they were done, they were introduced in the 50s with the candidate because the Dixiecrats, the southern members of the Senate were not keen to get any more judges who would decide things like Brown versus Board of Education. So now they wanted scrutiny.

They never used to require them to come to the hearing. Even Brandeis, whose hearing went for months, didn't, or weeks, didn't have to actually testify, give evidence. So it became a show. And everybody who appeared knew to say, I don't have an opinion on that. And it'll depend and strikes and balls. I'll just call them as I see them and all of that, because nobody's going to give themselves away. And then sometimes they would get into trouble for saying the most obviously, intelligent things like, of course, my identity matters.

And that becomes controversial if you're a wise Latina woman. Who said that? What was her name of that? So to my art. Right. So we watched in horror as the press was clamoring, and it was the press, clamoring for what they said were open. It was good theater and it's good for the press.

What I never saw the press do in our country in all of the years that I was watching with great interest who the judges were is go through a CV. It was, he said, she said, it wasn't really serious scrutiny. They could have, they could have taken the time to go through all of our writings.

You don't get to go to the Supreme Court of Canada unless you've got a body of work. It wasn't done like that. It was kind of a popularity content. So the government, I think, was persuaded that they should try something to appease the press. And so for our appointments, Louis Chorons and my appointment, the Minister of Justice Erwin Kotler came up with a system where there was a committee that vetted our qualifications without us there. So it wasn't a cross-examination. of us. It was a cross-examination of the Minister of Justice, who had thick binders with

our decisions, explain why these two women should be appointed. That didn't satisfy the press. So they came out with, let's do it as a full hearing. And they picked a really nice judge who was kind of an Andy Griffith, Oshucksie kind of guy. Marshal, Marshall Rothstein. Very, very nice guy. And he talked about his wife, the doctor, and he always does what his wife says. And that went over really well. And they said, you see, it works. Like everybody was behaving really well. And then it didn't because then it got to be pretty aggressive and a little more forceful. And so the government backed off. And frankly, I don't see any utility to that process other than letting people see the faces. It's why there's celebrities in this country. When I

down the street in Canada with Steve Breyer, they say, who's that with Steve Breyer? They had no idea who we are. I like that. That's better. So there are personalities here, which is great, but it's because of the, but ask the public what their opinions were. I'm not sure that they would know. Maybe now they know about the judges. So I just, I wish there were more studied interest in who the candidates are, what they're bad. backgrounds are, what decisions they've written, what articles. The public has a right to know who the nine people are in Canada or in the United States. And I don't think they know from the process that the Americans have. And I'm afraid they don't know much even in Canada.

But we have a good court. Thank you.