MEGASTARS
The Honourable Bertha Wilson:
The Pioneering Canadian Judge and Architect of Charter Jurisprudence
By Essam Farag
Bertha Wilson was the first Canadian women appointed and sworn in the Supreme Court in March 30, 1982. She was born in Kirkcaldy, Scotland, on September 18, 1923 and is the daughter of Archibald Wernham and Christina Noble. She attended the University of Aberdeen and graduated with an M.A. in 1944, then continued her education at the Training College for Teachers, obtaining her diploma in 1945. She married the Reverend John Wilson in December 1945 and they emigrated to Canada in 1949. In 1955 she enrolled at Dalhousie University to study law, and three years later she completed her LL.B. and was called to the bar of Nova Scotia. In 1959 she was called to the bar of Ontario and practised law in Toronto with Osler, Hoskin & Harcourt for 16 years. She was appointed to the Ontario Court of Appeal in 1975 and to the Supreme Court of Canada on March 4, 1982. She was also appointed to the Permanent Court of Arbitration in 1984. She served on the Supreme Court for eight years and retired on January 4, 1991 and died on April 28, 2007, at the age of 84.
Astonishingly, upon seeking admission to the law school at Dalhousie University in 1954,
the dean at the time, Horace E. Read, mentioned to her, "Madam, we have no room
here for dilettantes. Why don't you just go home and take up crocheting?".
Also, this great judge rarely met clients and instead analyzed judgements, read law reports,
kept up with the statutes, wrote opinions, setup an information retrieval system
sophisticated enough to be fed later into a computer.
She was the first woman appointed to the Ontario Court of Appeal in 1975. In an era of huge advances in family law, her rulings soon attracted the attention of lawyers and judges across the country, especially those that dealt with the advancement of women's rights. She ruled in favour of the divorced common law wife of a beekeeper arguing that she was entitled to a half share of a business they had built up and run together.
In 1982, she became the first woman appointed to the Supreme Court of Canada, by then Prime Minister Pierre Elliott Trudeau. Wilson retired from the court in 1991, was made a Companion of the Order of Canada and a Fellow of the Royal Society of Canada that same year.
On January 4, 1991, at age 67, she retired from the Supreme Court 8 years before her mandatory retirement date. She cited diminished energy as the main reason for retirement. A few months after she left the court, Prime Minister Brian Mulroney appointed her to the Royal Commission on Aboriginal Peoples to conduct a three-year investigation to induct into the history of native-white relations and the social and economic problems facing Canada's first nations. At about the same time, the Canadian Bar Association asked her to chair its Taskforce on Women in the Legal Profession. This report which was called, "Touchstones," essential let the legal profession know that women faced the same inequities before the Bar as they did in other professions. That same year, she was elected Fellow of the Royal Society of Canada and appointed as a Companion of the Order of Canada the following year.
Judge Bertha Wilson's Legacy
The Honourable Judge Bertha Wilson played an historic role in Canadian law, both as a pioneering female jurist and as a primary architect of the Charter of Rights jurisprudence. The first judge to ascend to the Supreme Court was appointed just weeks before the Charter of Rights and Freedoms was enacted in 1982. She quickly became a strong proponent of using the Charter to end centuries of discrimination.
Dr. Brenda Cossman, a University of Toronto law professor said that "Judge Bertha Wilson was right there at the defining moment. She was absolutely foundational to the emergence of Canadian Charter culture. Being the first woman to do anything, is a tough role to fill. You have to be kind of exceptional - and she was. She was an incredibly influential judge."
Justice James MacPherson, former judge at the Ontario Court of Appeal, mentioned, "I have no hesitation in saying that she [Bertha Wilson] was one of a small group of judges in the history of the Supreme Court of Canada that have been great. She has more of an independent streak than anyone else in that court. She was a prolific, crystal clear writer who wrote well in all areas - constitutional, family, public law and private law. She was an imaginative judge who saw the underlying purpose of the Charter as being to protect groups that had been disadvantaged. She called it like an umpire - the way she saw it." She created the so-called battered woman's defence for women who had killed abusive partner.
Frank Iacobucci, a retired Supreme Court judge, who had replaced Judge Wilson when she retired, mentioned "anybody who wants to read a judgement that speaks eloquently to an incredibly difficult issue should read Morgentaler. Bertha's legal skills were superb. She had tremendous compassion, and she could peel the onion as well as anyone I have ever known in terms of analysing issues. In my view, her bench had the hardest job because they had to give shape to the content of the Charter in moving forward. The first attempt at anything is the toughest. The dean of law at York University, Prof. Patrick Monahan said that the legal mainstream is only beginning to catch up with some of Judge Wilson's views. He specified her contention that the Charter ought to be read as containing social and economic rights, such as rights to welfare or housing.
Chief Justice, Beverley McLachlin said, "as a member of this court, she was a pioneer in Charter jurisprudence, and made an outstanding contribution to the administration of justice.
She wrote a minority opinion in favour of a girl who was denied in a place on
a boys softball team simply because she was a girl. She ruled in favour of
allowing an East Indian mathematician, who claimed she had been discriminated
against in job interviews because of her race.
Dr. Jamie Cameron, professor at Osgoode Hall Law School mentioned that, "she was a vital part of that early burst of judicial energy and creativity that really characterized those early years of Charter interpretation. This was before the words, 'judicial activism' were part of common parlance." She almost never wrote the opinion of the majority of the court. My sense of it, is that she was very much an individual and a loner, so I think it was a struggle for her to find her voice, to claim her voice and to maintain the integrity of her own voice."
The life of Judge Bertha Wilson demonstrates her great contribution to the
Canadian modern legal system and interpretation of the Charter of Rights and
Freedoms in a democratic society. As an integral contributor to the architecture
of the Canadian Supreme Court. Her life story cannot be summarized in a simple
article, but should rather be read in a book. Lawyer, Ellen Anderson, wrote a
book entitled, Judging Bertha Wilson: Law As Large As Life.
which was published in 2001 by
Osgoode Society at the University
of Toronto Press - a recommended reading for all.
Essam Farag, BA Honours (Dalhousie), MA (Guelph) is currently the projects manager for the National Council on Canada-Arab Relations (NCCAR). He is the Production Editor of the Ambassadors Magazine. Email: essamfarag@ambassadors.net
