OPBP Symposium: In Conversation with Justice Abella

Eleanor Mitchell - 13th June 2014

“I think lawyering is about the public interest.”

This was the simple and thought-provoking opening to Justice Abella’s contribution to Oxford Pro Bono Publico’s first annual Symposium, “Public Interest Lawyering in the Twenty-First Century”, which was held in Oxford on Saturday 24 May.

As a lawyer, it is seldom pleasant to discover that you might have framed an issue in the wrong way. But Justice Abella’s invitation to consider all lawyering as “public-interest lawyering” – rather than carving out a separate niche for the work undertaken by organisations like OPBP – was as refreshing as it was challenging. In other professions, the Judge noted, respect for the law and the legal system is critical without being central: doctors save lives; teachers impart knowledge; architects design buildings. For lawyers, by contrast, it is at the core of both our professional obligations and our broader social responsibilities. As such we are required, not merely to respect the legal system as it exists at any given moment, but to seek out ways to improve it. Whether we are fighting to expand the “right to education” or to hold others to their contractual obligations – whether our research is on freedom of association or damages for non-economic loss – we are here to make the law work, not only properly,but better. “Lawyers,” Justice Abella reminded us, “have a duty to make justice happen.”

This key idea underpinned all of Justice Abella’s lively and engaging conversation with Professor Sandra Fredman. Amongst many other things, the Judge spoke about the important role litigation can play in highlighting issues society has yet to grapple with, giving the example of the Supreme Court of Canada’s 1973 decision in Murdoch v Murdoch – a case which, by bringing the nation’s attention to the way property law continued to discriminate against women, catalysed the development of the women’s movement in Canada. This type of case, Justice Abella noted, can stimulate not only our sense of justice but also our sense of empathy: “Everyone,” she said, “is Irene Murdoch.”

The Judge also spoke about the importance of interveners, emphasising their ability to put forward perspectives which go beyond those of the parties and so provide the Court with a fuller appreciation of the context and significance of the case at bar. She cited the 1989 decision in Andrews v Law Society as a prime example of how effective interventions can change the course of legal history: in this case, amidst the plethora of submissions received on the interpretation of the equality guarantee newly enshrined in s 15 of the Canadian Charter, it was the intervention of the advocacy group LEAF which caught the attention of the Court. This submission alone departed from the idea of equality as equal treatment, and instead emphasised the importance of acknowledging and taking account of difference. The more nuanced conception of equality put forward by LEAF ultimately prevailed, and has remained central to the Canadian jurisprudence in this area ever since.

If the buzz of conversation over the ensuing coffee break was anything to go by, other Symposium participants left Justice Abella’s session feeling as energised and stimulated as I did. It was a privilege to have the Judge with us for the Symposium, and her message – that we are all public-interest lawyers, and that this can and should shape our approach to every aspect of our professional lives – is one that will continue to influence our thinking as we move forward with our studies and careers.

 

Eleanor Mitchell is a member of OPBP’s Executive Committee and an MPhil in Law candidate at the University of Oxford, where her research focuses on the recognition of refugees from armed conflict.

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