Transcript
Transcript: Reflections by Rosalie Silberman Abella
[00:00:00 Montage of a series of images. Text on screen: Leadership; Policy; Governance; Innovation.]
Narrator: Public servants, thought leaders, and experts from across Canada are reflecting on the ideas shaping public service, leadership, policy, governance, innovation, and beyond.
[00:00:16 Text on screen: Review and Reflection; Produced by the Canada School of Public Service.]
Narrator: This is the Review and Reflection Series produced by the Canada School of Public Service.
[00:00:26 Rosalie Abella appears full screen and is seen from different camera angles throughout the video.]
Taki Sarantakis: Welcome to the Canada School of Public Service. My name is Taki Sarantakis, and today we are providing you with the last installment of our Review and Reflection series. And I can't think of a better, more consequential Canadian to end with than the Honourable Rosie Abella. Welcome, Justice Abella.
[00:00:51 Text on screen: Rosalie Silberman Abella, Former Justice, Supreme Court of Canada.]
Rosalie Abella: Thank you, Taki, it's an honour to be here.
Taki Sarantakis: Now, we usually start with an icebreaker, and it's kind of a throwaway question. But in your case, it's not a throwaway question. It's the opposite of that. Justice Abella, where were you born?
[00:01:21 Overlaid aerial image of Stuttgart, Germany.]
Rosalie Abella: Ah. That is not a throwaway question. I was born in Stuttgart, Germany on July 1st, 1946, in a displaced persons camp.
[00:01:29 Overlaid archival image of a group of women and children in a German "displaced persons" camp.]
Rosalie Abella: My parents had survived the Holocaust in concentration camp.
[00:01:37 Overlaid photos of Justice Abella's parents.]
Rosalie Abella: They got married on September 3rd, 1939. How they survived is a miracle. But they did. And then they went to Germany where my father, who had been a lawyer in Poland, taught himself English and worked for the Americans, as a lawyer, helping set up the system of displaced persons.
So, I grew up, my early years were in Stuttgart. My mother tongue was German. That's something I think about now that I'm an adult with some amazement and gratitude that my parents wanted me to feel I belonged in this country of the people who had been responsible for their being in concentration camp. That's one of those osmotic lessons you learn that you have to transcend in order to be able to survive psychologically.
Then we came to Canada in 1950, when they finally allowed Jews to come to Canada.
Taki Sarantakis: How old were you when you left Germany?
Rosalie Abella: 4. Almost 4.
Taki Sarantakis: Do you have any memories?
Rosalie Abella: I've seen pictures and my father took moving pictures. I am not sure what I actually remember. I remember the ride over on the troop ship.
[00:03:05 Overlaid archival image of the USS Heintzelman.]
Rosalie Abella: We came over on the USS Heintzelman, from Germany to Canada. I remember landing at Pier 21.
[00:03:18 Overlaid archival image of Pier 21, Halifax, Nova Scotia.]
Rosalie Abella: And I remember that we got on a train to Toronto right afterwards. But my real memories, I have to say, started in Toronto.
[00:03:28 Overlaid archival image of Toronto, Ontario.]
Taki Sarantakis: What was Toronto like, from your first impressions?
Rosalie Abella: Well, my whole childhood was blissful. I have no unhappy memories. That was the home my parents created, that it was a place of joy and promise and hope. So, even though my mother and grandmother, who lived with us, were struggling with having to learn a new language, I never had a sense of struggling.
It was all, aren't we lucky? Isn't this amazing? We survived. We're in Germany. We have 2 healthy children. We have the chance now to go to Canada which, as we know from Irving Abella's book, was not easy to do. And so, it was just a question of starting all over again with a sense of promise and hope and never a feeling of despair or anxiety that I experienced.
Taki Sarantakis: Now, most of us know you from the law, and we'll get to the law in due course, I'm told you were pretty good at the piano.
Rosalie Abella: Oh my goodness, of course. Every immigrant learns how to play an instrument, I think. So, I was not unusual among the kids that I knew who had come to Canada to play the piano. I think the difference was, it was a serious enterprise in our home.
My father came home – he was an insurance agent in Canada – he came home every day at lunchtime when we came home from school and sat with us at the piano with my younger sister and me to make sure that we practiced. Then he would come home when we came home from school at 4:30 and sat with us when we practiced. My childhood was 2 hours a day of piano.
Taki Sarantakis: And not only did you play the piano, you went to the Royal Conservatory. Tell us a little bit about that.
[00:05:25 Overlaid image of the Royal Conservatory of Music, Toronto, Ontario.]
Rosalie Abella: The Royal Conservatory of Music had exams every year, and I finished. I got the ARCT, the diploma, when I was 17, and then said to my father, "I'm really happy that I know how to play the piano. But it was 2 hours a day, plus, of course, the expectation of being a good student. I'm going out with boys. I'm going to start having a good time."
So, I just abandoned the piano. I didn't abandon music. I still cannot be in a room without music. But I didn't have the natural talent that my younger sister had. So, I had to practice.
Taki Sarantakis: Now, before we get to boys, and one boy in particular, who is your favourite composer? What pieces did you particularly like or touched you?
Rosalie Abella: When I was playing piano, my favourite composer was Chopin. My least favourite composer was Bach because I found— I know it's heretical, isn't it? – because he was, to me, mathematical and I liked the Romantics. I started to enjoy, I would say Beethoven, the later Brahms, Schubert. But it was Chopin.
And the way my piano teacher got me to play Bach, because she knew I didn't like it, was she bribed me and said, "If you play this Bach Partita, I will teach you 2 Chopin Études." But when I finished, when I actually stopped, I never stopped enjoying classical music.
Taki Sarantakis: So, I think we're less than 5 minutes into this and you've already hurt me deeply.
Rosalie Abella: But wait, wait a minute. I want to tell you, before we languish on this ethereal and celestial level of the romantic composers, what turned out to be my favourite music was the American Songbook. And George Gershwin is my favourite composer now. So, I graduated from the really important music to really enjoying.
Taki Sarantakis: So, I imagine later in life when you had a little bit of money and a little bit of freedom that you found your way once or twice to Broadway?
Rosalie Abella: Only once a year, 4 musicals in 3 days. No food, just a lot of musicals.
Taki Sarantakis: Yes. Now, you met a boy. You married that boy. I've seen you talk about that boy over the years in interviews and documentaries. It sounded like you and Professor Abella were 2 lucky people.
[00:08:16 Overlaid images of Rosalie Abella and her husband, Professor Irving Abella.]
Rosalie Abella: He eventually felt lucky. I felt lucky right at the beginning.
He was 6 years older than I was and getting his PhD in history. And I was just starting second year. And I just flipped when I met him in the basement of University College getting ready for the international teach-ins. I was in charge of hospitality, and he was in charge of seminars. And I thought he was so smart. And he thought I was so young. And so, I spent 3 years just pursuing him until I wore him down and he finally agreed to marry me.
But it turned out to be so serendipitously wonderful because he was the best thing in the world for me and for our children. He was an amazing parent and son-in-law and son. And a brilliant historian. So, you're right. It was really lucky because you just don't know when you get married, if you get married, whether this is going to turn out to be a person, down the road, that you want to spend your life with and develop your life with.
Taki Sarantakis: How old were you guys when you got married?
Rosalie Abella: I was 22 and he was 28.
Taki Sarantakis: And I have seen you – again, in interviews, when you talk about your husband and your life and your children – just light up like a newlywed.
Rosalie Abella: I was really always madly in love and very grateful for the strength he brought the whole family and me. There weren't a lot of women doing what I was doing. I think we knew one other person whose wife was in the paid workforce. And I became pretty high profile very quickly. And he was 100% supportive and encouraging. I didn't know they weren't supposed to be until people said, "That's really lucky."
Taki Sarantakis: Now we'll come back to the boy in a little bit, but we'll fast forward a little bit to 29. You were 29 years old. You were a practicing lawyer. You get a phone call. Tell us about that phone call.
[00:10:48 Overlaid image of a UN poster commemorating International Women's Year, depicting male and female figures side by side with an = sign between them, surrounded by a laurel wreath.]
Rosalie Abella: 1976 was one year after International Women's Year, and there were real movements of women asserting rights, including the right to participate in public areas and public institutions. And one of them was the judiciary. But there were no women lawyers who were in the courts.
[00:11:13 Overlaid archival image of a courtroom]
Rosalie Abella: I never saw another woman in the courtroom.
And so, when they decided it was time they really had to find women for the court, they called me. I was 29, 7 months pregnant with our younger son, and asked me if I wanted to be a judge. And I didn't even hesitate. I phoned my husband. We had a quick discussion about whether it – he said it didn't make sense financially. We both decided it didn't matter because it was such a great opportunity.
My friends in the legal profession said, "Don't do this. This is the lowest court in the country, and one day you could be federally appointed judge." And I was just so amazed that they wanted me to be a judge.
Taki Sarantakis: So, I don't know if you've kept track, but has there ever been anybody else in their 20s, that you know of, who's been appointed as a judge?
Rosalie Abella: There was one other person who was 29, on the West Coast, a provincial court judge. But that's the only one I know.
Taki Sarantakis: Absolutely stunning. So, here you are now. You're a young woman. You have a couple of children. You have a professional husband. You're a judge. I imagine your world was pretty male, in terms of your professional life.
Rosalie Abella: It was almost exclusively male. But the profession was wonderful. The lawyers that I was dealing with in downtown Toronto were extraordinary. They were warm, generous, helpful. I think it was because I was such an oddity. There were no other women in the profession that they knew, certainly in the litigation world.
And I was also, at that time, becoming higher profile because I was doing speeches on family law, women's rights, human rights, which was getting to be a more public conversation in the '70s. Remember, we had come through the '60s when all institutions were under scrutiny. Certainly the winds from the United States encouraged that here.
And we had just had, in 1970, Florence Bird's Royal Commission on the role of women. And that introduced a whole new set of conversations. So, I rode that wave as it turned out. I had no idea what I was heading into. I just wanted to be a lawyer the way my father had been.
Taki Sarantakis: Now, before you became a judge – I think this is fair to say – in addition to being a lawyer, you were a lawyer in the best sense of the word – I'm not sure if it's French or Latin – you were an advocate. You were somebody that had opinions. You were somebody that had a sense of what you thought you wanted; what you thought was right, what was wrong. Was there a mindset challenge that you had to flip to when you put on the robes and became a judge?
Rosalie Abella: Of course. I didn't stop being that other person. And I learned a lot from clients about what the law was really about for most people. Because, when you're in law school, you learn the rules, you learn what the cases say. When you're a lawyer and you have people sitting across the desk from you, you learn what their lives are really all about.
When you're a judge, you don't stop the listening, but the advocacy part, as you point out, instead of being the representative of the person across the table from you in a negotiation or a court case to plead their case, you are now listening to both sides. And you are trying to decide, given those 2 sides, what is the fairest outcome in the circumstances. That is a big switch.
Taki Sarantakis: Now, I have heard you also say something I think, in some ways, is controversial or unorthodox for a lawyer and a judge. You have made a distinction between the law and fairness, and you're pretty famous for that distinction. Tell us a little bit about that distinction.
Rosalie Abella: The law and fairness do not have to be antonyms, but the law alone is meaningless unless it creates justice. The law is the bones, and justice is the flesh that you put on it. So, the law gives you the rules, and those are important, but they're meaningless unless they connect to an outcome that is fair. And that fair outcome is what justice is.
And again, that comes to me from my background. From understanding that in Nazi Germany, there were laws and there were judges and there were lawyers, who were implementing those laws, which were antisemitic and genocidal. But they were implementing the law. They were following the rule of law.
So, I never use the term rule of law. I'm not even sure the public understands what it means. I think to lawyers it has a particular meaning. To me, unless it's a just rule of law or a rule of justice, those rules by themselves are really unhelpful. They're in isolation.
Taki Sarantakis: Now let's go back to the boy, because I think in and around this time he published a very important book, a groundbreaking book.
[00:17:20 Overlaid image a book titled, "None is Too Many: Canada and the Jews of Europe, 1933-1948", by Irving Abella and Harold Troper.]
Taki Sarantakis: I read it when I was an undergrad at York University way back when. And, for me and for some of my fellow classmates, it shook the notion of what we thought Canada was. Tell us a little bit about that book.
Rosalie Abella: I think that's a very good perception, Taki. That was the feeling that we heard expressed by people. This does not feel like Canada because it's the story of an immigration policy that from 1933 to 1948 was antisemitic; excluded Jews. My family knew there was a problem because we wanted to come to Canada, and we couldn't get in until 1950. But it was an academic – for us, it was just something that was a barrier. But we had no idea that there was an historical grounding and a genuine government policy.
Taki Sarantakis: Now, Professor Abella spent a lot of time in archives and a lot of time looking through documents. What were some of the things he found that surprised me and others who read this book?
Rosalie Abella: Well, I think the surprising thing was, as you said, we saw ourselves in Canada as a kinder, gentler, more tolerant country. And I think we were. [We] had certainly become that and continue to be that, I think better than any country in the world at the moment, as far as I'm concerned.
At the time though, it shook people's confidence that our roots were similarly tolerant and that we would never have had a policy that deliberately excluded a religious group, particularly a religious group that had endured the Holocaust.
So, it was a breathtakingly powerful story. It was beautifully written, thoroughly researched, and irrefutably made the case that Canada had an antisemitic policy. It was a kind of growing up moment, I think, for Canada. And allowed us then to say, "Okay, if that's the case, then we really have to be willing to look at what else we've done that needs to be addressed."
Taki Sarantakis: Was there a backlash to the, let's call it, looking in the mirror moment? Was there people that were saying, it can't be true, this is wrong. Or, even if people believed it, it was like, "Well, yes, we believe it, but don't talk about it."
Rosalie Abella: I think there were a number of public servants who were really concerned about the fact that their heroes had turned out not to be as heroic as they had imagined. I'm sure there was a backlash, but I think if anything, what it did was make most people feel we can never do that again. That it should not be the defining story of Canada. And so, we became far more interested in making sure that the immigration policies were fairer, and that we were open. And did, in fact, become open.
So, there's always resistance. Nobody likes hearing that they behaved badly as a country, as a public service, as politicians. Those disclosures – this is what historians do – can be shattering for people's belief in what their national identity is. But I think it had a really positive effect on Canada and on its maturity and its willingness to accept that what it had done in the earlier days was untenable and could not be continued. And should not be.
Taki Sarantakis: Now, before we go to the next block of time where we're going to be talking about the Charter, about the Supreme Court, your time on the Supreme Court, I can't leave the pre-Supreme Court times without talking about your role in Employment Equity. And in fact, I am quoting a phrase that easily comes off of all of our tongues, that you were actually the author of that phrase. Tell us a little bit about that.
Rosalie Abella: Well, government policy was sometimes deferred to Royal Commissions to deal with issues that might be trickier to deal with around a cabinet table without evidence, without supporting documentation. There was the B&B Commission. There was the Commission on the Status of Women.
[00:22:49 Overlaid image of former Prime Minister Pierre Trudeau.]
Rosalie Abella: This was the Trudeau government deciding to look into whether there should be Affirmative Action in Canada because the –
Taki Sarantakis: Let's pause. What's Affirmative Action? Because that's something we're less aware of.
Rosalie Abella: So, Affirmative Action was the American system designed by the Equal Employment Commission in the United States to make sure that there were more women in the system, and Blacks. It was a quota system. It was 1 of these, 2 of these, 4 of these. Or, it was a system where they said, you need to increase the participation of this group by 50%. But it could stay at the bottom. There was never any suggestion of moving through the ladders of an organization.
[00:23:40 Overlaid image of a letter titled "Commission of Inquiry on Equality in Employment", by Judge Rosalie S. Abella.]
Rosalie Abella: When the government asked me to do this Royal Commission on Equality in Employment, I had to do 2 things, I thought.
The first was to understand what equality means because we had not, in Canada, had a definition of equality. And the second was to try to understand what the methodology could be to be suggested to government about how to rectify whatever barriers to equality there were for women, Indigenous people, persons with disabilities, and visible minorities.
So, I traveled across the country, spent 2 hours with each of the 4 groups, plus 2 hours with business, 2 hours with labour, to get their sense of whether we should have Affirmative Action in Canada. The first hour of every 2 and every one of the meetings was, what the heck does Affirmative Action mean? They were debates about what it means. No one knew.
So, the first thing I decided was, as I was listening to this confusion, there's no point rallying a policy initiative around something that is so ambiguous that nobody knows what it means. And besides, it's American. Besides, it's not us. And besides, it's quotas, and I don't like quotas. Quotas kept Jews out. So, I'm not a fan of quotas, and I believe in change over time.
So, I thought, I've got to change the name so that at least people will listen, because you know that sometimes terminology can be the barrier to the conversation because your brain just kind of shuts down. So, as a lawyer, I thought, this is about equity. This is about fairness in employment. So, I called it Employment Equity.
[00:25:25 Overlaid image of "Equality in Employment: A Royal Commission Report", by Judge Rosalie Silberman Abella, Commissioner.]
Rosalie Abella: That is the origin in order to get away from this magnet that attracted controversy into the possibility of a conversation.
The second part though was figuring out what the strategy should be. And there, it was really trying to figure out how to have the mechanism that would allow this to happen without the bureaucracy, because that gets in the way, and without the mechanics of what the Americans were doing. I did not want reports going in all the time. I did not want a numbers game. I just wanted to know what the outcome was over time.
So, it was Employment Equity. It was making sure that there was more inclusion. And it was trying to create fairness in the workforce in a way that would work.
Taki Sarantakis: Now, I've heard you say that when you issued your report, you united the country.
[00:26:35 Overlaid text: "Yet for all their differences, the one issue about which there was general agreement among the groups was the need for strong government measures to ensure equality in employment."]
Rosalie Abella: I did. I did.
Taki Sarantakis: Tell us about that.
[00:26:43 Overlaid image of a motion from Flora MacDonald, Minister of Employment and Immigration, regarding: Allocation of time to consider Second Reading Stage of Bill C-62, with highlighted text: "The people of this country want and need employment equity. And we want to give it to them."]
Rosalie Abella: Hard to do. Well, because the day after the report came out, every single newspaper in the country said, "This is terrible. You can't tell employers whom to hire."
And I remember being so stunned by the reaction because, up until then, I had not experienced negative press. I'd been this adorable judge, mother of 2, husband a distinguished history professor. And suddenly I was the virago of the Western world trying to tell businesses how to do what they should do to make sure that more women were in the workplace and persons with disabilities, Indigenous people. That took me a while to get used to.
And I did eventually figure out that if I liked who my critics were and understood why they were critics, and I was happy with who was on my side, then I was comfortable because I liked to think that I had earned both. Eventually, the government – this was a Royal Commission that was initiated by Lloyd Axworthy and Pierre Elliott Trudeau.
[00:27:54 Overlaid images of Lloyd Axworthy and Pierre Trudeau; Brian Mulroney and Flora MacDonald.]
Rosalie Abella: By the time it came out a year later, the government was Brian Mulroney and Flora MacDonald. And it was the Conservative government that decided to implement the Royal Commission report – former controversy – and created the Employment Equity Act. And it was implemented literally 3 years almost to the week that the Commission had been set up. So, it showed me that controversy can sometimes be a very healthy teaching exercise.
Taki Sarantakis: Now, in the interim of those years, something else happened in Canada that was very monumental. The patriation of the Constitution; a Charter of Rights and Freedoms. Talk to us for a moment about pre-Charter Canada. Who decided things? How were they decided? What kind of rights did Canadians have? And tell us a little bit about what '82 meant to us, at least conceptually.
Rosalie Abella: I think that's a great question. So, before we had the Charter of Rights and Freedoms, we did have a constitution.
[00:29:10 Overlaid image of the cover of the British North America Act, dated 1867.]
Rosalie Abella: It was the BNA Act, and it was essentially a federalism document. There were protections for Catholic schools; French language rights. But it was Section 91 dealing with federal government responsibilities, Section 92 dealing with provincial government responsibilities. It was not a rights-granting constitution otherwise. And what we had instead, for protecting rights, were human rights commissions across the country.
[00:29:43 Overlaid image of the Canadian Charter of Rights and Freedoms.]
Rosalie Abella: When the Charter came in, there was a lot of skepticism on the part of people who were in fact progressive, because they worried about the ability of the Canadian courts to be implementers of constitutional rights because they had not been, shall we say, they had not been award-winning human rights granting bodies. They were very Diceyan; old school. It's not the job of the judges to create rights. It's up to the legislatures to do that. We'll just call the strikes and balls, right? The umpire.
The Charter completely changed the way people thought about who gets to give rights; who gets to monitor rights; who gets to change rights. And what it did was introduce the possibility of constitutional rights protection by the courts, the very courts the progressives were worried about, who had ignored really any sense of responsibility for rights.
And suddenly we had the Supreme Court deciding rights under this brand new Charter. And they were fantastic and muscular. And Brian Dickson and Bertha Wilson, the first woman on the Supreme Court, and their colleagues in that first decade just boldly went into the waves of constitutional rights. Instead of just being a little hesitant, very Canadian, let's try this, let's try that, they just said, we are striking down this. This is a barrier. This can't be done.
And helping the government, in a way, because, for instance, on reproductive rights, legislatures are very nervous about entering into waters that are turbulent with the public. Courts have nothing to lose. It's their job as independent judges to risk controversy.
So, I think they transformed what Canada was, and they turned Canada into the leading purveyor of constitutional rights around the world. All the courts followed us.
Taki Sarantakis: Now we're sitting here in 2026, and it's very easy to take a lot of things for granted. But, this is the 1980s. Let's take like the first decade of the Charter. As you said, the court took this document and ran with it. Reproductive rights; sexual orientation; rights of the legislature; rights of citizens; group rights, this is a revolution.
Rosalie Abella: So, what they did was that they showed that the Constitution represented not just laws, this goes back to our earlier discussion about the rule of law, but values. And the secession reference, which is to me one of the finest judgments the Supreme Court's done, I say that as someone who had nothing to do with it but was in awe at the architecture and the values that it explained were part of Canada.
So, it talked about the values that were in the Constitution. They said those values include democracy. They did say rule of law; rights of minorities. The fact that they actually articulated the idea that it isn't just the rule, it's the underlying moral architecture of what it was trying to do, the aspirational nature of the Constitution that really gave it its inspirational quality to constitutional courts around the world.
At the same time that the American court was shrinking in its approach to rights and going from although seriously civil libertarian in the early days, not terribly human rights, but civil liberties oriented, Canada took over because Canada had the bicoastal concepts of civil liberties protection and human rights protection. Civil liberties: freedom of the individual from the state being unreasonable; Human rights: the right of the individual as a member of a group to be treated fairly by the state.
So, we had both. We were far more true to the traditions that had become revealed by the Second World War, which was that there are limits to thinking of rights as only being the rights of the individual.
Taki Sarantakis: Yes. Again, it's hard for people who have been living with the Charter for almost half a century to think back. There was a time prior to the Charter, essentially the most fundamental question in law in Canada was which order of government can do this to you?
Can the federal government do this to you, or can the provincial government do this to you? It was not a question of, "Should anybody be able to do this to you?"
Now, you are one of the 9 people that gets to interpret the Charter, that gets to call the balls and strikes. How did you think of yourself as one of those 9 people? What was your mindset?
Rosalie Abella: I thought of myself as one of 9. That I was a participant. That every judge learns that it's not about you, it's about the people in front of you. That it was a privilege to be able to sit with those other 8 people and they changed over time. And that my brain had a chance to think about the most complicated and, as you would say, consequential decisions. But not just of the Constitution. Private law; torts; contracts; copyright law; criminal law; every area of law reached the Supreme Court of Canada.
[00:36:14 Overlaid image of the Supreme Court of Canada.]
Rosalie Abella: We're different from the Americans. They have limited jurisdiction. We don't. Family law. So, to be able as a lawyer who cares about law, because every lawyer does, and have the chance to think about not just what it is, or what it was, but this is the place you get to think about what it should be.
And especially when you're doing it with 8 smart people, many of whom know more than you do about any particular area, all of whom are ready to kick it around with you and think about how to make it better. That's just lucky. The whole journey is lucky, but ending up there is a miracle.
Taki Sarantakis: I'm going to ask you a hard question. Tell me about the dissent that you authored that you still lament that the case went the other way.
Rosalie Abella: All of them. I mean, I wouldn't dissent if I didn't think the case should go another way. Are there any that I feel the country would've been better off if they'd followed my dissent? No, because the majority decision was written by people I respect, and we just had a difference of opinion about what should happen. So, I wish they had gone my way, but I'm sure everybody who dissents from my decisions wishes that I had gone their way.
But you don't think that way. This is not winner-loser. This is institutional. What every one of those 9 people does, what every judge in the country does, is make the decisions they think are the best decisions for those facts, those parties, these times, that government, history. I mean, to me, my judge is history. How will history judge me? How will time decide I have answered a particular question?
So, I regret none of my dissents. I regret none of the people who dissented from me. Actually, I don't regret anything. When I think about it, isn't this embarrassing? I don't regret any of my decisions. That's really embarrassing. I should, but I don't. Because none of them was made without a lot of thought and a lot of research and a lot of writing. I used to write – as you know, I write everything by hand – often 20, 30, 40 drafts of every decision. So, it didn't see the light of day until I was really sure this is what I wanted to leave to time.
Taki Sarantakis: Now, I have heard you say that the more time you have spent as a judge, the less judgmental you became. That might sound paradoxical to some of us. Tell us about that sentence.
Rosalie Abella: I think it should be true for most people because when you're young, when you're 19, 20, 21, the world is clear. There are right answers and there are wrong answers, based on what you know. And we know so little at that stage of our lives that it's not that difficult to say, "This is good, this is bad." And sometimes that was right. Sometimes I made the right judgment calls.
What I found over time, the more I knew, the more people I knew, the more experiences I had, it's not always clear what the right answer is. And sometimes there are grey areas, and sometimes other people are right and you're wrong. And that is a great lesson in humility, that you have to be open to the possibility that what you think isn't necessarily the right answer.
So, the things that I judged when I was younger, because I thought no right person would do that, no good person would do that, the more I got to understand people and human natures, the more complicated I realized life was, the less willing I was to say that's really wrong. I mean, there are things we all know are obviously wrong, but I'm talking about being willing to maybe compromise – not on core value issues, not on integrity – but on the margins, I learned to say, "This is none of my business."
Taki Sarantakis: I'm going to ask you to play philosophical dictionary for a moment. And I'm going to throw some big words at you, big heavy words. What does power mean?
Rosalie Abella: I thought about that a lot because when I first became a judge, so many people said, "Wow, the power." And it made me very uncomfortable because I don't think of judges as having power, but of course they do. I mean, the right to take someone's liberty away, someone's child away, someone's financial security away. I always thought my role – I preferred to see myself as someone who had influence, rather than power. And I cannot tell you why. Again, it may be because of what I've come from and the way I saw power exercised so brutally and inhumanely that I didn't want to be associated with the word. But I can see why people who don't have it think people who are influential have power. And in a way, we do. But it's not the same as what a politician has, which is power.
Taki Sarantakis: What does fairness mean?
Rosalie Abella: I have to accept that one person's fairness can be another person's tyranny. Or another person's unfairness. That no longer troubles me. The fact that you can have many versions of fairness to different people, depending on where you're sitting, doesn't take away, for me, from the fact that there are things that are unfair and things that are fairer. Keeping people out of possibilities in life arbitrarily is unfair. Trying to give people every opportunity to exercise their potential is fairness.
So, I can't give you an absolute definition of fairness. Is this awful? I know it when I see it. It is one of those things that sometimes feels intuitive but can change when you get more facts. You can never ignore facts. My vision of fairness, coming from my perspective, has always been subject to learning from someone else that I have a limited vision. And that I need to know more before I decide whether my vision is fair.
But I do know that restricting people's access, that depriving them of opportunities, that stereotyping, that disadvantage, those are all unfairnesses that are correctable and that we have a duty to address.
Taki Sarantakis: The last big definition, and it might be informed by the previous definition. What's justice?
Rosalie Abella: Well, I call my law and literature course "The Application". I say, "Justice is the application of law to life." Justice is fairness. And if that makes it something that is malleable in the minds of the public, I think most people have the same idea of what fairness is. But some people are indifferent to whether or not other people experience fairness.
I think everybody has an obligation to think about whether we have the fairness in our communities; in our societies; in our countries that make us the best. People who think that life is fair give back. People who are disadvantaged, have no sense of ownership in the system, they don't want to give back.
So, I can't tell you what this amorphous term means to everybody. But I can tell you what it means to me. It was like Potter Stewart talking about art, "Obscenity, I know it when I see it." And that may not be good enough, but it has to do because we have built up, in this country, a long enough history of what we consider to be fair that I think most Canadians share a vision of fairness that was shaped by the Charter, partly shaped by our history, what we've learned we did badly, what we've learned to fix, and of the kind of country we want to be.
So, justice, to me, is the aspirational quality that defines the kind of country we want to be that is as fair as possible to everyone.
Taki Sarantakis: One last question. You were born in Germany on Canada Day in a displaced persons camp, having lost relatives you never knew to one of the horrific atrocities in the history of mankind. You went back to Germany, and you received the highest civilian award that the German state offers. Tell us about that.
Rosalie Abella: It's very hard. It closed the circle on 2 countries for me. It closed the circle on Germany, where it started, and it closed the circle on Canada where that journey ended. And it was a gift from both of those countries. It was Germany saying, "We're sorry and thank you." And it was Canada that put me in the position where I could get that from Germany all those years later.
So, I'm grateful to both for the origins, and for the conclusions. And for the future that will be there, I hope, for my family whose grandparents' nightmare turned into their mother's fairy tale.
Taki Sarantakis: The Honourable Rosie Abella, one of the most consequential Canadians in history. Thank you.
Rosalie Abella: Thank you.
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