Skip to main content

Justice Rosalie Abella gestures during a swearing-in ceremony as Justice Marie Deschamps looks on at the Supreme Court of Canada for her and Justice Louise Charron, in Ottawa, Monday Oct. 4, 2004.FRED CHARTRAND


Madam Justice Rosalie Abella of the Supreme Court of Canada had no intention of letting police seize a Vancouver woman's home to punish her for running a marijuana grow operation.

In a ruling last month that was vintage Abella - justice tempered with a soft heart - the judge concluded that light sentences are more appropriate for small fry such as Judy Ann Craig.

Five years after Judge Abella arrived on the court, the jury is in. Having largely silenced critics of her public profile and vocal support of social causes, Judge Abella has emerged as a tower of strength in her favoured fields - family law, employment law, youth criminal justice and human rights.

In addition, the growing number of majority judgments that she writes has stifled any suggestion that Judge Abella aspires to be a squeaky wheel.

"Justice Abella certainly started slowly, but I see a judge who is starting to assert herself as a distinct judicial personality on the court," said Bruce Ryder, a professor at York University's Osgoode Hall Law School. "I see her emerging as a leader on the court."

Still, her early years were challenging. Appointed by a good friend - former Liberal justice minister Irwin Cotler - Judge Abella had to overcome allegations of nepotism while fitting into a succession of brilliant, independent-minded female judges - Bertha Wilson, Claire L'Heureux-Dubé, and Louise Arbour.

Feminists and social justice advocates looked to her as a beacon of hope on a court that had drifted steadily to the right. Legal conservatives, meanwhile, tended to see her as a judicial activist with a passion for social causes and publicity.

By instinct or design, Judge Abella lay low. In cases where she could have forged a bold, activist path, she came across as a team player with no interest in rocking the boat. In two key decisions involving legal funding for the indigent, Judge Abella failed to register even a faint dissent.

"Those were both very, very cautious and conservative opinions that offer very little hope to ongoing struggles to secure rights to legal aid for the indigent," Prof. Ryder noted.

A turning point came early last year. In a case involving the rights of young offenders, Judge Abella carried a 5-4 majority and aimed a well-argued swipe at her dissenting colleagues. Noting that "no one seriously disputes" that young people vary widely in maturity and sophistication, she argued they should be sentenced in ways that are unique to them.

It was the sort of succinct, self-confident opinion on behalf of a relatively powerless group that her supporters had hungered for.

Prof. Ryder calculated that Judge Abella has sat on 267 appeals since 2004, writing opinions in 48 of them, or 18 per cent. One clear theme has emerged. "Her commitment to progressive values shines through," he said.

In the opinion of many in the legal community, Judge Abella has defied those who tried to pigeonhole her as judicial activist. "Her positions defy simplistic labels," said Toronto litigator Mahmud Jamal. "She is first and foremost a jurist."

She is also a persistent but fair questioner, Mr. Jamal said. "Lawyers appearing before her feel they get a very good hearing, even if they don't win," he said. "She imparts a deep sense of fairness, as someone genuinely striving to understand both sides of the case. What more can you ask of a judge?"

In another expression of her growing self-confidence, Judge Abella was the sole voice of dissent in a 2008 case involving stockbrokers whose former employer sued them for damages after they left en masse to join a rival firm.

"An employee is not an indentured servant," she said. "In the global world, the titans of finance and industry pay millions in exchange for their executives executing non-competition clauses. Why should courts be handing them out for free when it comes to employees of lesser stature?"

Last spring, Judge Abella again took on the entire court, aggressively supporting the position of a Teamsters union official who had been fired by a political rival and then expected to remain at work during his severance period.

Alexander Torgov, a veteran Toronto litigator, said that her dissenting opinion was tough-minded, savvy, "and more closely reflected the reality of the workplace and the inequality of bargaining power that generally exists between employers and employees."


'Her positions defy simplistic labels. She is first and foremost a jurist.'

Milestones of Madam Justice Rosalie Abella's jurisprudence:

Hilewitz v Canada, 2005

In determining whether immigrants who have disabled dependents can remain in Canada, authorities should exercise flexibility.

Syl Apps Secure Treatment Centre v B.D., 2007

Social workers in child apprehension cases cannot be successfully sued if they acted in good faith.

R v Clayton and Farmer, 2007

Police did not violate the Charter rights of two men when they put up a roadblock and searched the pair after receiving a vague 911 tip.

Multani v. Commission Scolaire Marguerite-Bourgeoys, 2006

A school board acted unreasonably in prohibiting a Sikh child from wearing a kirpan, a ceremonial dagger.

R v D.B., 2008

Struck down a law forcing young offenders who are guilty of serious, violent offences to be sentenced as adults unless they can prove it would be unfair to them.

Kirk Makin

Report an error

Editorial code of conduct