A Moment That Began as a Provocation
The setting was Rome, during an International Bar Association conference that brought together judges, jurists, and constitutional scholars from across the democratic world. It was meant to be a routine exchange of ideas—comparative law, constitutional interpretation, judicial philosophy. Instead, it became one of the most defining moments in modern Canadian constitutional discourse.
An American federal judge, speaking with confidence rooted in the long shadow of the U.S. Constitution, asserted that Canada’s Charter of Rights and Freedoms was fundamentally weaker than its American counterpart. The implication was unmistakable: that Canada’s constitutional framework lacked the robustness, depth, and moral authority of the United States’ founding document.
The remark reverberated through the room. For many, it sounded less like critique and more like dismissal—of Canada’s legal evolution, its constitutional values, and its distinct judicial philosophy.
Among those listening was Justice Rosalie Silberman Abella, then a sitting judge of the Supreme Court of Canada. She did not interrupt. She did not react theatrically. But those who later recounted the moment remember a quiet decisiveness as she rose to speak.
What followed was not a prepared lecture. It was not an academic paper. It was a judicial response born of lived experience, constitutional history, and moral clarity—later remembered and taught as the Rome Lecture.
Rising Without Notes: The Power of Judicial Conviction
Justice Abella spoke without a manuscript. Her remarks were measured, calm, and unflinching. She did not defend Canada by diminishing the United States. Instead, she reframed the conversation entirely.
She began by rejecting the premise that constitutional strength must be measured by rigidity or age. The Canadian Charter, she explained, was not designed to replicate the U.S. Constitution. It was forged in a different historical moment—post-World War II, post-Holocaust, and deeply informed by the lessons of exclusion, discrimination, and state indifference.
In accounts of the lecture, she is remembered as emphasizing that Canada consciously chose a constitutional path that placed equality, dignity, and pluralism at its centre.
A Living Constitutional Promise
One of the most frequently cited lines attributed to her from that day captures this philosophy:
“The Constitution is not a straitjacket. It is a living promise—one that must be capable of responding to injustice as it appears, not as it once existed.”
This was not rhetoric for applause. It was a statement of constitutional method.
Law as an Instrument of Justice, Not an Idol of Formalism
Justice Abella’s core argument was deceptively simple: law exists to serve justice, not to preserve itself.
She challenged the notion—common in certain strands of constitutional originalism—that fidelity to the past is the highest judicial virtue. In Canada, she explained, constitutional interpretation is purposive. Rights are not museum pieces; they are commitments.
As she reportedly put it in words later echoed in judicial writing and scholarship:
“The majesty of justice is the law’s purpose. Without justice, law is nothing more than words on paper.”
This idea would later find expression in Canadian equality jurisprudence, particularly in how courts interpret Section 15 of the Charter. Formal equality—treating everyone the same—was not enough. The Charter demands substantive equality, a recognition that different people experience the law differently because society treats them differently.
Equality as Lived Reality, Not Abstract Symmetry
Drawing from her own background—the child of Holocaust survivors, a lifelong advocate for marginalized communities, and the author of the Royal Commission on Equality in Employment—Justice Abella spoke of equality not as theory, but as lived experience.
She rejected the idea that neutrality is fairness.
According to those who heard her, she argued that a constitution blind to social context risks becoming complicit in injustice. Treating unequal groups identically, she noted, often entrenches inequality rather than cures it.
This approach distinguished the Canadian Charter from the American constitutional tradition in a profound way. Where American jurisprudence often wrestles with whether courts should acknowledge social realities, Canadian constitutional law openly embraces context, impact, and historical disadvantage.
Pluralism and the Living Tree Doctrine
Justice Abella’s remarks were deeply rooted in one of Canada’s most enduring constitutional metaphors: the Living Tree doctrine.
Canada’s Constitution, she explained, is meant to grow within its natural limits. This growth is not judicial activism; it is constitutional fidelity to a society that changes.
Multiculturalism, Indigenous rights, gender equality, disability rights—these were not afterthoughts grafted onto the Charter. They were part of its moral architecture.
In contrast to constitutional systems that fear evolution, Canada’s approach sees adaptability as strength. Rights must remain meaningful in the face of new forms of exclusion, new technologies, and new social realities.
The Silence That Followed—and the Response That Came Later
When Justice Abella finished, the room did not erupt into applause. Instead, there was something more powerful: silence. The kind that signals not disagreement, but recalibration.
Within days—by some accounts, within forty-eight hours—the American judge whose remarks had sparked the exchange issued a public clarification, acknowledging that his earlier comments had underestimated the depth and sophistication of Canada’s Charter framework.
The moment quickly travelled beyond Rome. Law schools began referencing it. Scholars cited it. Judges remembered it. The Rome Lecture became shorthand for a turning point in comparative constitutional respect.
Why the Rome Lecture Still Matters
The Rome Lecture endures not because it was confrontational, but because it was clarifying.
It articulated, in human terms, why Canada’s constitutional project is distinct:
- Because equality is understood substantively, not formally
- Because justice is the aim, not a by-product
- Because pluralism is constitutional bedrock, not a political slogan
- Because rights are meant to grow with society, not fossilize within it
For law students, it remains a masterclass in judicial reasoning without defensiveness. For scholars, it is a case study in constitutional identity. For judges, it is a reminder that authority flows not from volume or age, but from moral coherence.
Conclusion: A Lecture Without a Transcript, But With a Legacy
There is no official transcript of the Rome Lecture. No verbatim record. And perhaps that is fitting.
Its power lies not in exact phrasing, but in its enduring influence. It was a moment when one judge, standing in a room far from home, articulated why a nation chose a different constitutional path—and why that path deserves respect.
Justice Rosalie Abella did not merely defend the Canadian Charter that day.
She defined it.
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