Canadian Supreme Court Justice Finds Equality in Difference


“Equality means accommodating and acknowledging people’s differences so they can be treated as equals,” said the Honorable Rosalie Silberman Abella of the Canadian Supreme Court, describing her definition of the term in her 1984 federal Royal Commission on Equality in Employment. On Feb. 22, Justice Abella visited Fordham Law to discuss the judiciary system of Canada, the philosophies that comprise nations, the global need to reimagine democracy, and, above all, the premise that people’s differences demand understanding and that every individual deserves respect.

“Her career has been distinguished by an unflagging commitment to human rights equality and justice,” said Dean Matthew Diller, who made introductory remarks and posed questions to Justice Abella during the event, which was part of the Robert L. Levine Distinguished Lecture Series and presented in partnership with the Fordham Law Review.

Before she became the first Jewish woman appointed to the Canadian Supreme Court, Justice Abella was a refugee. Born in a displaced person’s camp in Stuttgart, Germany in 1946 to parents who survived concentration camps, she moved with her family to Canada in 1950. Growing up in the shadow of Nazi Germany, she became wary of the phrase “rule of law.”

“We had segregation, apartheid, and genocidal regimes under the rule of law,” she said, stating that she prefers the term democracy—which includes due process, freedom of the press, freedom of dissent, and protection for minorities—or the just rule of law or rule of justice.

Justice Abella noted that her family found safety in their new country. Her lawyer father, however, was not able to practice law because he wasn’t a citizen. Witnessing this disappointment, a young Abella, at the age of four, decided she would pursue a legal career.

In 1976, at the age of 29, Justice Abella became the youngest person and first pregnant woman appointed to the Canadian judiciary. For the next seven years, she would serve on the Ontario Family Court. Herself a mother to two boys, she spent these years deciding, as she described it, whether or not to take other people’s babies away. According to Justice Abella, the heart-wrenching cases taught her how to listen—the essence of being a good judge—and to apply empathy rather than condescension. “Looking at the law and justice from their eyes taught me to be a judge,” said Justice Abella.

Matthew Diller and Justice Rosalie Silberman Abella

Matthew Diller and Justice Rosalie Silberman Abella

Justice Abella stressed the importance of dialogue between the Supreme Courts of various nations, emphasizing that shared values but differing perspectives can lead to productive conversations. She spent time describing some national differences in approaches to constitutional law.

“We are all affected by our political origins,” said Justice Abella, observing that the Canadian approach to equality stems from a constitutional bargain between the English and the French and emphasizes that you can be different and still be equal, whereas the American approach is that every individual should be treated the same. Canada stresses integration; the Americans assimilation.

Justice Abella also discussed how Canadian judges, granted tenure until age 75, do not cater to the majority. That, she said, is the job of legislators. “We can be impartial and unpopular and do things that protect minorities as well,” said Abella.

One such example of an initially unpopular but unequivocally just endeavor came in Justice Abella’s 1984 federal Royal Commission on Equality in Employment, in which she spent 18 pages redefining equality as an accommodation of people’s differences—an idea inspired by the 1971 race-based U.S. Supreme Court case Griggs v. Duke Power Co. Newspapers joined in disagreement with her ideas. “I united the country in disapproval of my recommendations when my Royal Commission came out,” she joked.

Justice Abella’s definition, however, would go on to change the world. The report has been implemented by the governments of Canada, New Zealand, Northern Ireland, and South Africa. Additionally, the report influenced the rulings in her nation’s Supreme Court. In 1989, using her definition of “equality,” the court ruled that a British man could practice law in Canada without being a citizen—a ruling that Justice Abella wishes her father, who died before she finished law school, could have witnessed.

“They used my words and my definition of equality to strike down what had kept my father out of the practice of law,” she said tearfully, observing how the achievement circled back to her family history. “Life is quite amazing, isn’t it?”

Justice Abella concluded the conversation with praise of Fordham Law’s commitment to teaching its students justice.

“Young people are hope,” she said, turning to address the students. “You will understand what justice means from this school, so you are the hope.”

Photos by Michael Dames.


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