The appointment of Rosalie Abella to Canada’s Supreme Court in 2004 shattered two records. In one fell swoop, she became the first Jewish woman and the first immigrant to land that coveted position.
“People like me were not exactly being appointed to the Supreme Court in droves,” she says in a droll understatement at the beginning of Barry Avrich’s glowing documentary, Without Precedent: The Supreme Life of Rosalie Abella, which was premiered at the Hot Docs film festival on May 1. Additional screenings will take place on May 2 and May 5. The film will be screened online from May 5-9.
Abella was certainly a different Supreme Court judge.
The daughter of Polish Holocaust survivors Jacob and Fanny Silberman, she was born in a displaced person’s camp in the German city of Stuttgart in 1946 and arrived in Canada with her parents in 1950.
A liberal, if not a progressive, Abella was known as an advocate of women, the disabled and visible minorities when she joined the high court. As the movie gets under way, a quotation attributed to her flashes across the screen: “I will never cater to the majority. I am prepared to be impartial and unpopular and do things that protect minorities.”
She was true to her words. When she reached the mandatory retirement age of 75 in 2021, Abella had compiled a legacy as an erudite, open-minded and compassionate judge, whom Avrich celebrates in his absorbing movie.
She gravitated toward the study of law because her father, a graduate of Krakow’s illustrious Jagiellonian University, had aspired to be a lawyer in his native Poland. Jacob Silberman attended the university at a time when the number of Jews in its law faculty was governed by a numerous clausus, or Jewish quota.
Silberman also learned that its classrooms were segregated on the basis of religion, and that he had to sit on a so-called ghetto bench. Refusing to abide by this blatant form of racism, he stood for most of his first year rather than submit to this antisemitic humiliation.
Having passed his exams, he received a letter from the president of Poland’s Court of Appeal in July 1939 informing him he could take a test in October of that year to become a judge. But with Germany’s invasion of Poland on September 1, his hopes and dreams of a legal career were swept away in a raging river of genocidal Nazi hatred, and he never practiced law in Poland.
He and his wife were sent to German concentration camps, and their son, Julius, the brother Abella never met, was murdered in the Treblinka extermination camp.
Despite their horrific experiences, they were the happiest people Abella knew as a child in Toronto. And they spoke to her as if she was already an adult, she recalls with pride.
Throughout much of the film, Abella sits comfortably on an ornate couch, fluently recalling her childhood, her marriage and her career.
Her late husband, the historian Irving Abella who co-authored the classic work None Is Too Many, adds a few words now and then, as do friends like the novelist Margaret Atwood and acquaintances like the former Canadian prime minister Brian Mulroney.
Abella discloses she applied to law school to compensate for the fact that her father was not permitted to practice his profession in Canada because he was not a Canadian citizen. Avrich glosses over his employment history in Canada and his apparent decision not to practice law here after obtaining his citizenship.
Following graduation from the University of Toronto’s law school, she joined a small firm in the city. Some years later, she opened her own office. During this period, she learned of “realities” never spoken of in the classroom.
She married the love of her life, Irving Abella, before being called to the bar in 1972. As she fondly remembers, he welcomed her desire to work and always gave her sound advice.
At the age of 29, she was appointed a judge in Ontario’s Family Court, thereby becoming the youngest judge in Canadian history. She was seven months’ pregnant with her first son when the appointment was announced.
Abella strikes a viewer as a workaholic, a perfectionist and a family woman. Although she worked long hours, her two sons, Jacob and Zachary, never felt neglected. She is portrayed as well as a lover of fine music. In particular, she appreciates the compositions of George Gershwin, whose symphony, Rhapsody in Blue, bookends Avrich’s film.
Abella is seen as an innovator. In 1984, she submitted an “Equality in Employment” report to the federal government that proved to be a watershed in Canadian labor history. Calling for equity in the workplace regardless of a worker’s gender and ethnic, religious, racial and linguistic background, the report was excoriated by critics. Mulroney, however, was very impressed and adopted its recommendations.
Joe Clark, the former Canadian prime minister, thought highly of it and its author. “She’s an appropriate expression of what equality is,” he says.
Mulroney named Abella to the Court of Appeal in 1992. “I was convinced she was the best person for the job,” he says, candidly acknowledging that her Jewish faith posed a problem to some Canadians.
Five years later, Abella was passed over for the next available seat in the Supreme Court. Paul Martin, the Canadian prime minister, appointed her to the court in 2004 on the recommendation of the justice minister, Irwin Cotler, a former McGill University law professor.
Critics complained that her views and legal opinions were outside the mainstream, but Martin believed she was a jurist of substance.
During her 17-year run, she handed down verdicts in favor of same-sex marriage, the constitutional right of employees to strike and medically-assisted suicide.
Looking back at her position as a Supreme Court justice, Abella describes it as incredibly intellectually fulfilling. “I loved every second of it,” she says.
As she observes, she wanted to be “really good” as a judge. Judging by Without Precedent, she succeeded.
