Former Supreme Court Justice Abella talks changing the court, judicial activism, and the rule of law at the 2022 Coxford Lecture
On February 9, former Supreme Court Justice Rosalie Silberman Abella delivered the twelfth annual Coxford Lecture, attracting its largest audience to date.
The Coxford Lecture is an annual public lecture on the rule of law hosted by Western Law. Past speakers include former Supreme Court Justice Ian Binnie, the 28th Governor General of Canada the Right Honourable David Johnston, prominent philosopher Jeremy Waldron, among others. The lecture series aims to promote and advance the rule of law through discussion of pressing public law issues.
Justice Abella’s lecture was no different. She began her talk by alluding to the Ottawa protests, noting that “justice is in crisis because more and more people have decided that, like the Red Queen in Alice in Wonderland, the law is what they say it is.” Canada appears to be in a state of flux concerning what justice and democracy mean, or even what the law is for.
Addressing her lecture to law students in particular, Justice Abella stated that as “the future of democracy,” students have the responsibility to decide “how fair and respectful this country will be.” No matter what students choose to do with their law degrees, it is Justice Abella’s hope that they will make “justice [their] transcendent preoccupation.”
While Justice Abella noted that great changes to justice in Canada have occurred since she graduated from law school in 1970, including official bilingualism and the introduction of the Charter of Rights and Freedoms, she criticised the legal system’s slow, incremental changes that do not reflect our modern times.
“Integration based on difference, equality based on inclusion despite difference, and compassion based on respect and fairness. These are the principles that to me form the moral core of Canada’s national values, the values that make us the most successful practitioners of multiculturalism in the world and the values whose integrity requires the legal profession’s vigilant protection. And yet, are we actually delivering access to justice to the public?”
Referring to this as a fundamental concern, Justice Abella expressed dismay that civil trials are conducted almost exactly the same way as they were in 1906. Whereas other professions like medicine have advanced with the time, the legal system is frequently resistant to change. This resistance has created a public that has little confidence and respect for the judiciary. “Justice may be blind, but the public is not,” remarked Justice Abella. “The public doesn’t think it should take years and several thousands of dollars to decide where their children should live, whether their employer should have fired them, or whether their accident was compensable. They want their day in court, not their years.”
Rather than focus solely on more traditional access to justice standards like legal aid and pro bono, Justice Abella encouraged law students to think boldly and work towards designing a new way of delivering justice “to ordinary people with ordinary disputes and ordinary bank accounts.” Doing so may be the only way for the public to believe in justice and the legal system.
On the role that judges should have in a democracy, Justice Abella stressed that while judges may see themselves as independent and impartial, that is not necessarily how the public views them. Successful judges, in protecting their own integrity and the Court’s legitimacy, must recognize the diversity of our country and the differing views that may enter the courthouse. “Above all,” Justice Abella notes to protect integrity, “we need to embrace humility and see the world we judge with rigour and compassion from the ground up, and not from our exalted tops down … and there is no legitimacy without integrity.”
When judging the judges, Justice Abella advised that students remember that judicial interpretation involves 1) interpreting imprecise and nuanced language and behaviours and 2) weighing competing values that ever-shift as society progresses. She notes, however, that weighing these values and taking public policy into account doesn’t necessarily impair judicial neutrality or impartiality. Judges have prior conceptions, opinions, and sensibilities about society’s values; what is key is that these preconceptions do not interfere with their interpretation of the evidence and arguments as presented.
“Judicial activism as we know is only used to presumptively dismiss the legitimacy of a decision that expands rights, not restricts them,” remarked Justice Abella.
Justice Abella also made clear that Courts should not be swayed by public opinion as it is not evidence. Referencing the then-controversial Brown v Board of Education, a US decision that held racial segregation in public schools is unconstitutional, she noted that it is the role of the judiciary to do what is right, not necessarily what is popular.
“Being fearlessly open to understanding how injustice sounds and feels to the vulnerable who come before judges is what judges are for. It is the compassionate application of law to life. Otherwise, what’s the point?”
Finally, Justice Abella stressed the importance of promoting the “universalism of democratic values,” including due process, protection for minorities, a free press, and more, as opposed to “a contested euphemism like the rule of law.” Indeed, what we need is the rule of justice.
