♪ >> Welcome to Canada Files .

I'm Valerie Pringle.

My guest today is the Honourable Rosalie Abella.

She was born in a displaced persons camp in Germany following World War II.

And came with her family to Canada as refugees.

Rosie fulfilled her father's dream of practicing law and ended up serving 17 years on the Supreme Court of Canada.

Since her mandatory retirement at 75, she's been teaching at Harvard.

She is praised by judges around the world for her decisions.

US Supreme Court Justice, Sonia Sotomayor calls Rosie "the people's judge".

>> Valerie: Justice Abella, hello.

>> Rosie: Hi Val.

>> Nice to see you.

>> Great to be back in Toronto.

It's great to see you too.

>> There are so many firsts for you.

You were the first refugee appointed to the judiciary.

First Jewish woman appointed to the Supreme Court of Canada.

I think of those many judgements, landmark decisions, that you were part of.

As you look at it, is there any particular achievement in law of which you're most proud?

>> Oh, in law.

That's different.

>> In law, yes.

>> That's a fair question... >> Personally, it's always the family.

Actually that is the overriding thing that I feel best about.

Just because it was by no means predictable when it started all those years ago.

I think probably the legal contribution that I feel proudest of was doing the Royal Commission in 1984.

That was a long time ago.

>> It was on equity in employment.

>> It was calledRoyal Commission on Equality & Employment.

That was the mandate.

It was to study the barriers in employment for women, Indigenous people, persons with disabilities and what we called visible minorities people who weren't white, so 60% of the population.

The first thing I had to do was figure out what does equality mean.

We had not yet had a court decision in Canada on what the new Section 15 of the Charter of Rights & Freedoms meant.

Just by listening-- this is a good thing for a judge to be able to do, to listen.

But to really listen.

Not to listen looking down from what your views are and seeing how they fit with what you hear.

But actually hearing what people are telling you.

So I heard the same concerns from women across the country, persons with disabilities, Indigenous people and people who weren't white.

I realized you cannot treat them all the same.

>> There's no such thing!

>> As equality in that sense.

There is, in terms of civil liberties.

You can, and should be, treated the same in your relationship with a court.

You should have the same right to a fair trial.

Whether you are the leader of a province or the person who cleans the buildings where that leader works.

Same right to vote.

All of those things are equality in the sameness context.

But when you are someone who is part of a group, you have to have your differences acknowledged and accommodated for you to be treated like an equal.

But the biggest surprise of all was the Supreme Court of Canada in 1989.

When they finally decided what equality & discrimination meant used my definition from the Royal Commission Report.

To define equality for Canada.

>> It's been used around the world.

>> It has.

It started... >> You defined equality!

>> I made it up!

...I learned because I was open.

I had no idea how to define it.

I read Hobbs, Locke, Aristotle, Plato and the possessive individualist .

I read every philosopher who had ever written about equality to get it into my head.

Plus the jurisprudence.

You know, Isaiah Berlin said there's no pearl without some irritation in the oyster.

Reading their jurisprudence on equality was so irritating.

I had to try to figure out what was bugging me about it.

And reacting to what I didn't like.

I had the voices of those people travelling across the country in my head and came to a suggestion.

Because it's a royal commission.

It's just a suggestion.

That this may be one way for Canada uniquely to approach equality.

>> You've talked about your evolutionary grasp of justice.

What does that mean?

What has changed throughout your career as you see what justice is?

>> Well, we all start in the incubator of our homes.

My home was a very loving, encouraging, not overly protective.

They encouraged me to go out and do things.

But the expectation was we will take care of you.

Just go out and be a really good student.

And a really really good piano player.

And be nice to everybody.

We were immigrants so... >> This is a whole story-- your personal story which is so extraordinary and foundational.

Born in a displaced persons camp in Germany to parents who lost a baby and survived the Holocaust.

>> And were married on September 3, 1939 in Poland.

Extraordinary how they survived, I have no idea.

My grandmother survived too-- my mother's mother.

>> Not your older brother.

>> No.

And not my father's whole family-- all killed at Treblinka.

I came to Canada in 1950 when we finally got in.

We couldn't get in.

When my husband, Itchie , wrote his book, None is Too Many, about how Canada had an anti-semitic immigration policy keeping the Jews out until 1948 when Israel was created.

They didn't worry any more about all the Jews coming to Canada.

It was a great experience to come here in 1950.

And find that the whole world was open to us except my father, who wasn't allowed to practice law, because he wasn't a citizen.

That would have taken 5 years and he had to support a family.

He never complained about it ever !

But it's one of my earliest memories in Canada-- my father coming home and saying he couldn't practice law.

That's when I decided I was going to be a lawyer.

>> How old were you?

>> Four.

I was going to do...

I had no idea what that meant.

All I knew this person I adored couldn't be something that he wanted to be.

It wasn't until I was 13, and read Les Miserables .

That I really connected what was an unknowing childhood dream to be what my father couldn't be.

It was kind of revenge.

You can't?

Okay, I'm going to do this thing whatever it is.

Then the idea that Jean Valjean was in jail for 19 years.

Because he stole a loaf of bread to help his nephew.

That was the moment I understood there's something as injustice.

I didn't understand it from my own home.

Because they didn't talk despairingly about where they had been.

>> Unbelievable they were happy.

You had a happy childhood.

With happy parents.

>> Who talked about the Holocaust!

They answered my questions.

They never cried.

It was just part of the family narrative.

So there were no ghosts, no demons.

It was all out.

They encouraged this lawyer childhood thing that I was talking about.

They said it's Canada.

You can do whatever you want.

I didn't know until university that girls weren't lawyers.

That's what people started to say what are you talking about?

Girls aren't lawyers.

But I wasn't like anybody else.

I knew that!

So I just kept doing what I wanted to do.

And that included going to law school.

Then when I met Itchie, who was getting his PhD and not interested in a 19 year-old who was following him around everywhere.

We got married and had kids in the middle of law school.

I didn't know any mothers who were lawyers.

So the whole ride was an experiment in doing it differently.

From coming to Canada and being encouraged by my parents.

Then my husband to just do it our way.

There was no role models which made it easier, Val.

>> You were appointed to the bench in family court.

You were 29 and pregnant.

You had friends who said don't do that!

Why do that?

>> They said it because they thought-- it was our 2nd son.

They said, in the legal profession, Don't do the family court-- you're 29 years old.

You could one day be a trial lawyer on the federal bench.

I thought...we who are immigrants don't sit down and make a plan--one day I'm going to be...because you can't!

You know there's no sense of entitlement!

It's all just work really hard and see what happens.

>> Take opportunities.

>> ... do your best.

Keep your integrity.

Do it in a way that people will respect what you're doing.

Especially if you're different.

So I thought why wouldn't I become a judge?

I was 29.

I didn't even know any judges.

It was an opportunity to learn something totally different.

I learned what Walter Lippmann called people whose lives went from the day's drudgery to the evening's despair.

Which had not been my life.

It had been some of my clients' lives.

But I learned how to be a judge on that lowest court in the country.

Because I saw people who had no sense of ownership, no hope.

It was on me to try to not make it worse for them, as a judge.

>> Well, so vulnerable and family court so sad-- people's lives just falling apart.

>> Falling apart and not knowing how or whether it's ever going to get put together.

Judicial humility comes in great abundance when you sit there and you have two kids of your own.

>> Who've both become lawyers.

So Dad, we're all lawyers.

You're all lawyers for Jacob.

>> Yeah, we are.

>> You talked about Les Miz being such a moment of this is not justice.

So that expression which so many people stick to- it's the rule of law, you don't like.

>> I don't understand what it means.

Everybody throws it around.

Nazi Germany had a rule of law.

South Africa had apartheid -- that was a rule, and law.

Segregation in the United States.

I know there are very sophisticated ways of approaching what the term means.

But if you ask ordinary people-- this is a term that is meant for everyone.

What it means.

They don't know what it means.

It's used by autocrats all over the world.

We have laws, the rules of law.

So I don't like it.

I like either a just rule of law or a rule of justice .

But the term is empty for me.

But I think also because it's tied to a lack of understanding of what democracy means, at the moment.

These two important concepts that we used to understand have now become convenient jargon for supporting your own side.

Democracy was never just about the majority.

It's become that in too many places.

Where people have said, "Look, we were elected by the majority so we can do whatever we want."

Well, no!

Democracy is about checks and balances.

It is partly about getting elected.

That's the beginning of the conversation.

The majority's views are expressed through the people you elect.

Then there are the checks and balances-- an independant bar and judiciary.

Who can ensure the parameters of the constitution or the lines between what is political and a right-- a human or civil right, can be monitored.

And the media who hold us all accountable.

If you don't have an independent media and judiciary it's not democracy.

>> One of the areas where you led in judgements was gay rights.

You took a huge amount of flak for it.

>> The first one in 1995 was very...really controversial.

But controversy can be a very good teacher.

It got me into trouble but it got the public talking.

I should be able to get into trouble.

That's what judges do.

They make decisions as independant decision makers without worrying about whether people are going to like it or you.

We're protected until we retire.

And we're there to do a job.

So the controversy from that decision got people talking about gay rights because this was so out there for people.

Three years later, I wrote a gay rights decision called Rosenburg .

About a provision of the Income Tax Act which said you could leave pension benefits to opposite-sex spouses.

I wrote a decision saying that was unconstitutional on the grounds that it violated the right to sexual orientation.

And wrote in--the two other judges...it was unanimous, the remedy is to add the phrase "or same sex".

So it starts.. you have to do it.

>> ...marriage, it was part of a continuum.

>> Same sex marriage was by 2004.

Imagine the continuum-- 2004, first case I sat on at the Supreme Court of Canada was same sex marriage and that was 9 - 0.

By then, I think 7 or 8 provinces had already said same sex marriage was constitutional.

We were crashing through open doors.

What a revolution, like in 10-12 years.

Boom!

It was because there are some things legislatures can't do.

They run the risk of not getting re-elected.

Judges are the only people in the democratic constellation who are obliged not to worry, not only entitled not to worry about public reaction-- obliged not to worry about it.

In order to be able to do the right thing.

For people who are not necessarily in a position to get legislatures to respond to their minority concerns.

>> Tell me about the course you are teaching at Harvard.

What is it, law and literature?

>> Boy, that's fun.

I'm teaching two courses.

In the fall, I teach the "Judicial Role in a Democracy".

I compare Canadian and American constitutional law.

In speech areas, equality, affirmative action, religion, commercial law.

>> Do they care at Harvard what Canada does?

>> Well, they...don't.

( laughing ) I don't think Americans really care a lot about anything except Americans.

But the students do and the profs are great.

I'm in deep discussion with them about their approach to freedom of speech.

Then they cling to the First Amendmentlike it's a religion.

I don't think I'm getting anywhere with them.

The idea that you can stop hate speech-- they still live with the romance of these speech doctrines that developed in 1919.

Which talked about a "marketplace of ideas".

And if you let people say what they want, the good ideas will drown out the bad.

If you're a vulnerable minority who is being persecuted and bullied by language that is vituperative and dehumanizing.

It's not a very good way to feel you actually can participate in that conversation.

>> Marketplace isn't working for you.

>> It's not a... it's a marketplace of idea.

So it's bullying.

What I say to them is, you know you have rules against defamation.

That means you can't say things that are lies or harmful about the individual.

Hate speech is just group defamation.

>> Now the law and literature course?

>> That's the second... they were great.

They said, "What do you want to teach?"

I said I always wanted to teach law and literature but not the way it's usually taught in a law school.

Not Billy Budd, To Kill a Mockingbird, Inherit the Wind, nor The Trial by Kafka.

I just want to use real literature and see if we can tease out the justice themes.

Because I've always thought the best way to learn about people is through literature.

Because we all know our own life experience.

But culture and the arts are what introduces us to what other people are thinking, feeling, experiencing.

Empathy-- it's how you get empathy.

I thought I would try to develop a course that I'd never seen before which didn't involve court cases.

Or lawyers or judges.

But we could talk about theories of justice and law.

I think it's because you cannot be a good lawyer, judge or person unless you understand people and why they behave the way they do.

<< Music, you say, next to your boys, your two favourite brothers are the Gershwins.

You're an amazing pianist!

Music is a massive passion of yours.

>> It is and I always have to have music on in the room.

I play piano two hours every day.

Because my parents wanted me to get my ARCT from the Royal Conservatory.

If my parents wanted me to get it, I was going to get it.

So I did when I was 17, after two hours a day.

Kiwanis Festival every February, Royal Conservatory every June.

Those exams--then I got it and I said to my father, "I've got it and now I'm going out with boys."

Because I want a social life.

But what stayed with me, because the home was always full of music.

It was the American Songbook , Tin Pan Alley music.

And it was opera and classical and there was no dissonance.

You didn't have to choose.

I grew up--jazz when I was researching, studying,preparing.

Classical when I was writing and Broadway when I was just hanging out.

But there always had to be some music and it's in my soul.

I love...music and books were the two passions.

I don't exercise.

>> Cook.

>> You had to bring that up.

I don't cook.

But I love music.

I think better with classic music on.

I absorb better with jazz.

And I'm happier with Broadway.

>> Rosie, you must look at things that have changed, rights that people have, and think I was part of that.

You talk about when you're writing the decisions, you hope you're right.

That they stand the test of time.

But you can see that they have.

>> You're right.

The things that I've seen change for women, minorities, Indigenous, people with different sexual identities.

All in one generation in this country!

Extraordinary.

Through a combination of legislatures and judges.

It was not just the judges or the legislatures.

We were both committed to the same path.

And it was a path that expanded and expanded.

So I've seen all of that.

>> But you've been part of that.

>> I played...

I was given the chance and it was a fantastic ride.

Because of who I did it with-- I had two sons and my husband.

And my mother who lived 40 years after my father died-- a month before I finished law school.

>> Now your dad would be so proud.

>> He would and she was.

And the family was right beside me the whole way.

It's 77--I'm giving myself permission to look back.

I never did anything that I didn't think was the right thing to do.

But now I look back and say I feel really good about the things I've been able to contribute.

And I feel really good that the family is okay.

That it was something we all did together.

What can I tell you--I'm Jewish!

But that was always important to me.

That it was never at the expense of the people I loved.

And I loved the chance to serve Canada because they let us in.

>> That's how we end these conversations.

What is being Canadian mean to you?

>> Oh my God.

Where else could this have happened-this journey?

They let us in, let us be who we wanted to be.

Let us be more than we thought, or that people thought, we could or should be.

And every step of the way, they embraced the ideas, the personality.

Canada gave us everything!

I can't think of another country where I could have been me as fully, or the people I love.

I love this country!

I don't think there's another country in the world like it.

And I want it to stay true to what it is.

To the country it is, especially since 1982, when we got the Charter of Rights and Freedoms and really grew up.

>> Well, you're the best.

> So are you!

>> Thank you.

Pleasure to talk to you.

>> Thanks for having me.

>> We'll be back next week with another episode of Canada Files .

♪ ♪