Justice Rosalie Abella: Doing justice to her father’s dream

…Her philosophy as a judge is rooted in her parents’ experiences. She is a defender of human rights, of the rights of children, refugees, religious minorities, women.

She was the only judge to defend a Muslim woman’s right to wear a niqab (face veil) in almost all cases while testifying in a criminal trial. Determined to hold states accountable for human-rights violations, she was the only judge who said the family of Zahra Kazemi could sue the government of Iran for its involvement in the Iranian-Canadian photojournalist’s violent death. (The other judges said that Canadian law gives foreign officials immunity.)

Appointed to the Supreme Court by prime minister Paul Martin in 2004, she’s an activist judge, although she rejects the label. (Conservative judges have been activist, too, she says, in striking down laws protecting minorities.) “It’s not what you stand for; it’s what you stand up for,” she likes to say.

She has been reading Hitler’s Justice: The Courts of the Third Reich by German lawyer Ingo Müller, on the complicity of German judges in the Holocaust. She says they applied the letter of the law not to be seen as “activist.”

She scorns critics of judicial activism. “The plea for judicial deference [to elected legislators] may be nothing more than a prescription for judicial rigor mortis,” she said in a 2002 speech. The ubiquitous phrase “rule of law” annoys her: The Holocaust, apartheid and U.S. segregation unfolded according to law. She has an expansive view of the judge’s role, calls the Charter of Rights the “finest manifestation” of Canadian democracy.

“Of all the public institutions responsible for delivering justice, the judiciary is the only one for whom justice is the exclusive mandate,” she says. “This means that, while legislatures respond of necessity to the urgings of the public, however we define it, judges, on the other hand, serve only justice.”

This winter, she stood up for a more inclusive approach to marginalized people in two cases. In one, she wrote a majority ruling making it easier for refugee claimants to stay in Canada on “humanitarian and compassionate” grounds; in the other, she wrote the court’s unanimous ruling that requires the federal government to recognize the rights of Métis and non-status Indians, saying they have been living “in a jurisdictional wasteland.” Two weeks ago, she stood up for 500,000 non-unionized federally regulated workers, writing a majority ruling that strengthened their job security.