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A Woman’s Place is Always on the Supreme Court: Musings on Women in Law, Authenticity and the Exceptional Justice Abella

4 minute read

When I was 12 years old growing up in the Ottawa Valley, I declared to my friends that I wanted to be the first female justice of the Supreme Court of Canada.  I was completely unaware at the time that the Honourable Bertha Wilson had already taken that position some three years earlier.  Nor was I at all sensitive to the fact that fulfilling my ambition would have required that no woman be appointed to our highest court for at least another 35 years (and counting).  In my defence, I was 12 and there was no internet.

Fortunately, the aspirations of my 12 year old self did not come to pass, and our Supreme Court has benefited from the thoughtful consideration and judgment of ten women in my lifetime alone.  And in a few short weeks, one of those legal giants, Justice Rosalie Abella, will retire.

Much has been written and is still to be written about Justice Abella’s legacy.  Her work on employment equity shaped our courts’ consideration of equality rights from the onset of the Charter of Rights and Freedoms.  And as a judge of the Court of Appeal for Ontario and of the Supreme Court of Canada, she continued to interpret and apply the law to recognize each person as equal before our courts and in our democracy.  Her impact on the development of Canadian law, particularly in the examination of Charter rights, is profound. For me as a woman litigator, Justice Abella’s importance extends well beyond her judicial pronouncements.

At the age of 29, Justice Abella was appointed by then Attorney General Roy McMurtry to the Ontario bench.  She was pregnant at the time. Pregnant. Fast forward to today. When we talk about barriers for women in the profession of law, we still talk about the impact of childbearing and motherhood on those who choose to have children. The time not in the office. The assumptions made about priorities. The lost sleep.  And for me, the constant feeling that you are never enough, either as a mother or as a lawyer. It would not have been easy for Justice Abella, but she was a role model demonstrating that having both a family and a meaningful career was both doable and incredibly worthwhile.

Once on the bench, Justice Abella wrote regularly, sometimes in dissent. There is power in a woman like Justice Abella disagreeing with the majority. Far too often, women’s voices are silenced or muted by the loud voices of others. Her words carefully chosen, her values reflected in her judicial interpretations, Justice Abella’s dissenting judgments serve as a reminder that it is important that women who disagree ensure that their opinions are heard. Those opinions have value and may influence the future, even if they are not shared by everyone at the time.

To me, Justice Abella always maintained her authenticity. In every speech I heard or article I read, I always sensed that Justice Abella was exactly who you thought she was, and had been that person her entire life. Authenticity is so refreshing in a profession where demands and expectations can threaten to change a person, and where women, in particular, are often expected to fulfill certain roles or behave a certain way. I read the universally positive comments on her face mask and jewellery on her last day on the Court.  They may seem trivial, but when women with power and influence exercise self-expression, it gives license for the rest of us to be our own authentic selves.

Like so many in our profession, I watched and listened to Justice Abella’s remarks on the day of her last sitting. Though I have heard her speak of her life story before, it never fails to move me.  It is a story of resilience, love, hope and promise.  In many ways, Justice Abella’s journey from a displaced persons camp to the internationally revered judge on our highest court is a stand in for the dreams and opportunities of all of us.  May whomever fills the vacancy left by her retirement on the Supreme Court of Canada share her same passion for the law and authentic spirit. If so, Canadians will be well served.

Cynthia B. Kuehl

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