The Passing of the Honourable Bertha Wilson

The first woman to sit on Canada’s Supreme Court and the Court of Appeal for Ontario, the Honourable Bertha Wilson, has passed away at the age of 83. The following press release was issued yesterday by the Supreme Court of Canada:

The Honourable Bertha Wilson, formerly a justice of the Supreme Court of Canada, passed away in Ottawa on April 28, 2007 after a prolonged illness. Justice Wilson attended the University of Aberdeen, Scotland, and graduated with an M.A. in 1944. She continued her education at the Training College for Teachers in Aberdeen, obtaining her diploma in 1945. She married the Reverend John Wilson in December 1945 and they emigrated to Canada in 1949. In 1955, Bertha Wilson enrolled at Dalhousie University to study law, and in 1957 she completed her LL.B. and was called to the bar of Nova Scotia. In 1959 she was called to the bar of Ontario. She practised law in Toronto with Osler, Hoskin & Harcourt for 17 years.

Bertha Wilson broke ground in 1975 as the first woman appointed to the Court of Appeal for Ontario, and again in 1982 when she became the first woman appointed to the Supreme Court of Canada. She retired from the Court in 1991.

Chief Justice Beverley McLachlin, on behalf of the members of the Supreme Court of Canada, lamented Justice Wilson’s passing, ‘Bertha Wilson was known for her generosity of spirit and originality of thought. She was appointed to the Supreme Court of Canada the same year the Canadian Charter of Rights and Freedoms was enacted. As a member of this Court, she was a pioneer in Charter jurisprudence and made an outstanding contribution to the administration of justice. She will be sorely missed by all who were privileged to know her.’

A memorial service will be held at 2:00 p.m. on Tuesday, May 8, 2007 at St. Andrew’s Presbyterian Church, Wellington and Kent Streets, Ottawa.

As Chief Justice McLachlin notes, Bertha Wilson was much more than the first woman to sit on the Supreme Court of Canada. As a jurist she left an indelible mark on Canadian jurisprudence, distinguishing herself as one of the most progressive judicial voices of her generation. She had great empathy for the law’s underdogs, often leading on important questions relating to minority rights or the rights of individuals too easily villified by the rest of society, for example those suspected or accused of criminal wrongdoing. Justice Wilson did not shy away from controversy, when necessary she was ready to express disagreement with her colleagues through the use both of concurring and dissenting opinions.

Canada was served well by Bertha Wilson. She arrived at the Supreme Court only a month before the Canadian Charter of Rights and Freedoms came into effect. Quite simply, the timing could not have been better. This is precisely when Canada needed Wilson’s unique perspective. Her deep concern for human rights was invaluable during the Charter‘s formative years. It would take an entire book to put her important contribution to Canadian society into proper perspective. And, thankfully, just such a book has already been written, see Ellen Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: Osgoode Society by University of Toronto Press: 2000). Some highlights include:

Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441 – her concurring judgment was endorsed by the majority on what was the most important legal question raised by the case, the justiciability of executive decisions. Justice Wilson categorically rejected the “political questions” doctrine that has bedeviled American constitutional jurisprudence, making clear that the Charter applies to the whole of government;

R. v. Lavallee, [1990] 1 S.C.R. 852 – she wrote the majority judgment, which held that evidence of Battered Women Syndrome could be admitted before the jury in cases where battered spouses contend that they killed their batterer in self-defence in order to contextualize that claim;

R. v. Morgantaler, [1988] 1 S.C.R. 30 – while the majority invalidated the abortion prohibition on procedural grounds, Justice Wilson articulated a substantive basis for doing so. In her concurring judgment, she recognized that “liberty” under section 7 of the Charter affords to the individual a degree of personal autonomy over important decisions intimately affecting his or her private life. For Justice Wilson, a woman’s decision to terminate her pregnancy falls within this class of protected decisions, given the profound psychological, economic and social consequences for her. For closely related reasons, Justice Wilson also found that the abortion prohibition ran afoul of “security of the person”. She reasoned that the prohibition,

… is a direct interference with her physical ‘person’ as well. She is truly being treated as a means — a means to an end which she does not desire but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person? I believe that s. 251 of the Criminal Code deprives the pregnant woman of her right to security of the person as well as her right to liberty.

Ultimately, Justice Wilson’s view on the substantive content of “liberty” and “security of the person” – articulated in Morgantaler – garnered support from a majority of justices on the Supreme Court. See, respectively, Blencoe v. British Columbia Human Rights Commission, [2000] 2 S.C.R. 307 at paras. 49 through 54 and New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 at 77-78.

Near the end of her judicial career, Justice Wilson suggested in the Osgoode Hall Law Journal that woman judges would “make a difference” by bringing to bare a different perspective than that of the male judges who had dominated in the era prior to her appointment. See Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall L.J. 507.

Justice Wilson’s life as a judge proves her thesis. In short, she made a huge difference, and all of us are better for it.

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