Justice Abella on privacy, decision-writing, and the role of law schools

Tali Green (2L) and Brett Hughes (2L)

Justice Rosalie Abella kindly agreed to sit down with Ultra Vires before this year’s Grand Moot to answer a few of our questions. Two days before her tenth anniversary on the Supreme Court, we discussed everything from her love of scotch tape to why law students should read more novels.

BH: The Grand Moot problem is about privacy and technology. I was wondering if you can tell us how tech-savvy the Supreme Court is. Are you on Facebook? Ello?

I think you are talking to probably the least tech-savvy person on the Supreme Court. The Court is very up-to-date on technology. They have most of their filings [online]. They try to accommodate the public, so they have been keeping up with new technology.

I, on the other hand, still write everything by hand, although I am on intravenous to my Blackberry—it’s my only real technological attachment. Other than email, as grateful as I am to the Internet and Google, I just find that I think more clearly when I have a pen in my hand, and I do it word by word, sentence by sentence, and draft by draft.

The Court, I think, gets an A for its technological advancement. I personally have a barely passing grade, if at all.

BH: Do your clerks keep you up to date on what’s happening on social media?

The Court is not on Facebook. I have no idea what they do on social media…I’ll tell you how it works. It’s interesting, because I was very alive to the fact that this problem [privacy] is probably the next technological frontier. Over the last ten years that I have been on the court, I have seen how we are tracking technological advances. The Court is always behind, and technology moving so quickly—I don’t mean “behind” in the sense that they are antediluvian in their approaches, but it is a passive institution.

We don’t initiate proceedings, so we have to wait for cases to come to us. Often, by the time the cases come to us, the world has moved on to a different kind of technology. We are doing it step by step, but with a very strong recognition that the world of privacy has changed because of the ease of intrusion that is possible now.

It’s breathtaking to think of a decision by Peter Corey in 1992, in a case called Wise, which was dealing with a GPS tracking device. Here we are, 23 years later, and we have moved through intrusions into computers, cell phones, metadata. We are just getting [cases] issue by issue, and trying to make sure that what we are doing makes sense, and protecting rights, while at the same time being alert to the realities of the technology. That takes, for all of us on the court, a great deal of research. We learn technology by technology, but we do learn, as with any case—you become an expert in every particular case. Then you build on what you’ve done in all the prior cases.

It’s a frontier, privacy. It was a sleepy area before Hunter v Southam, which was the provenance, I think, of most of our modern privacy law. If you look back on it, it was brilliant in the way it set out the parameters and the foundations that remain to this day. We’ve just been building and building, and looking at aspects of…what does a reasonable expectation of privacy mean when there is so little privacy available? What is the role of the court, the role of the law, in allowing enough space for individual dignity and autonomy, but at the same time acknowledging public interests that may be countervailing?

TG: As a Supreme Court justice, a single one of your sentences can have a long-lasting impact on many Canadians. Can you discuss the process you go through to write your judgements and what it takes to be comfortable to have it published and out there?

I do many, many, many drafts of each of my judgements. I probably don’t even show it to a law clerk for three or four [drafts], although I get their help from the beginning. It is rare for me to show it to my colleagues unless I’ve done about ten drafts. I keep polishing it, knowing that, as someone who taught at McGill for five years, every sentence will be pored over. I want to make sure that it’s clear enough that it can be applied by trial and court of appeal judges, and that it makes sense in the context of the judgement.

That’s why I find having scissors and scotch tape, and page after page that I can make corrections on, [is so helpful]. Until I feel really good about it, it doesn’t get my colleagues’ eyes on it. Once it does, it has never been the case, in my ten years on the court, that I have received comments that have not improved it. There is that wonderful expression, “fish don’t know that water’s wet”—sometimes you’re so immersed in it you can’t see anymore what it looks like. Because it is eight fresh sets of eyes, they always point out an inconsistency here, or that I may want to think about leaving this issue open for the next case, or did I realise that this may look like it’s contradicting a precedent?

That collegial input is done with enormous civility on our court, I must say. I don’t see civility as getting along—I see civility as being able to disagree graciously, and constructively. Even though I think [a draft decision is] okay, it gets polished further by the process of deliberation with colleagues. By the time you see it, and have it to pore over, it’s had a whole lot of attention.

Now, how do I feel about that lasting? Although our words are pored over, I think anybody who thinks they’re writing for the ages may be missing what their job is. We are writing partly for the future, but we have no right to expect that it will remain relevant in the future. We are writing for the litigants and the law at a moment in time, bearing in mind the historical context, but being unable to predict the future.

The only time I remember being very consciously concerned about writing something that I hoped would last was the Royal Commission, thirty years ago, on Equality and Employment. I had no expectation that it would be implemented, and was very surprised when it was. [I had] every hope that it would be continue to be a discussion document for years to come on issues of equality and discrimination. Thirty years later, all of that polishing paid off. It is still a discussion paper, and it is law in some places. The definition of equality that I spent a month on, compared to two months writing the other 280 pages, has become part of the law of Canada.

I never [write] thinking it’s going to be long-term. I’m always happy when it is something that takes root, but I’m not surprised when it isn’t.

TG: And do you ever have regrets?

None.

There’s no decision I wish I hadn’t made. There’s no career decision…and they were all very idiosyncratic, from family court, to the labour board, to the royal commission, to the law reform commission, to teaching. There was no rhyme or reason to it, and there was no end objective, which is why I felt free to do whatever opportunities came along.

I wasn’t measuring every opportunity against the possibility of [it being] good for my one day going to the Supreme Court, or bad for [it], because I knew that would never happen to somebody like me, so I had a wonderful, eclectic career doing things that were interesting.

BH: We’re searching for a new Dean. You’ve said that, with access to justice, we need to stop “tinkering around the edges” and ask: “if we were designing a system today, what would it look like?” What role should law schools play in this? What kind of dean do we need to help in that regard?

U of T has been really very lucky in the deans that it’s had, [including] the Dean that I had when I was here in 1967 [Ronald St John Macdonald]. So all I would say is that if you keep getting the quality of people you’ve had so far, you’ll be going in the right direction.

Generically, what do I think law schools should be doing for law students? I think keeping their minds open to what the world looks like to the people they are helping, rather than looking at the world from the top down. It’s really about listening and paying attention. We tend, as lawyers, to clothe ourselves with expertise…well, we have expertise, but it doesn’t mean that we have all the answers.

I would like to see a legal education that focuses not just on the rules you need to know to give advice to people, but to understand that justice is the application of law to life. You need, as a lawyer, to have a fuller understanding of what life means for a whole lot of people, and that our privileged—and it tends to be privileged if you’re going to law school—life isn’t necessarily the life that you are serving as a lawyer.

It’s about justice. We’re the people who go to school to wave the banner of justice, and I would like to see a legal education that encourages people to think about the law as a justice tool. I don’t begrudge anybody the ability to earn a good living from law—I think that’s wonderful—but I think the bigger picture, the contributions that lawyers can make to the wider community in whatever way they want, is really important because of what you learn in law school about how to solve problems.

If you have on top of that a pretty good grounding in literature, culture, the arts…I think that would improve what you do. Because you can’t experience everything, but if you read good books, you can see what the world feels like to other people.

I also think there should be more emphasis on jurisprudence, and what I mean by that is more of an understanding, before you learn what the rules are, of why there are rules, what the system is supposed to be for, and what judges are supposed to be in a wider system when you have a constitutional democracy. If you have that before you learn what contracts and torts and criminal law are, you have a better understanding of why it matters.

This interview has been condensed and edited.