A Tribute to Bertha Wilson
Justice Abella’s remarks were delivered at a reception held in Convocation Hall at Osgoode Hall, on February 24, 2009, to honour the late Bertha Wilson and introduce ‘Reflections on the Legacy of Justice Bertha Wilson’, edited by Jamie Cameron (Toronto: LexisNexis Ltd., 2008). TheCourt.ca is extraordinarily pleased to be reproducing this poignant tribute.
This event is for a remarkable book about a remarkable woman. She herself would not have spent 10 seconds wondering how popular her legacy would be, but what a magnificent vindication of her life, her work, and her values this book represents.
I think it’s fair to say that as fascinating and serendipitous as her early life was, from the Thomas Hardy life of a minister’s wife in Scotland, to a mature law student’s life in Halifax, to 17 years as a respected researcher in a respected law firm, her life, for the first 5 decades, was decidedly under the radar. At her retirement ceremony from the Supreme Court of Canada on December 4, 1990, the then President of the Canadian Bar Association, Wayne Chapman, talked about her distinguished legal career and pointed to her two publications: “An Intelligent Lawyer’s Guide to the Drafting of Wills” and “A More Intelligent Lawyer’s Guide to the Drafting of Wills”. It’s not clear whether the change in title in the second article refers to “more intelligent” lawyers or a “more intelligent” guide, but she wasn’t high profile enough at the time for anyone to care.
Then lightening struck. In 1975, International Women’s Year, she became the first woman to be appointed to the Ontario Court of Appeal and, after that, you couldn’t mention her name in the legal profession without starting a conversation. It’s hard to imagine, in an age when almost 20% of the judiciary is female and 4 of the 9 judges on the Supreme Court are women, what an impact her appointment had. Everyone gasped, everyone watched, then everyone cheered. In fact, they cheered her all the way to her appointment in 1982 as the first woman on the Supreme Court of Canada, blazing the trail for 6 more, including 3 from this province.
When she was appointed, the profession was, as I recall, jubilant. At her swearing-in, she acknowledged the public jubilation at her being the first woman. She also, however, acknowledged her own anxiety at whether she would be able to “shape our future with sensitivity and imagination and flair”. She did all three.
The Canadian Charter of Rights and Freedoms came in a few weeks after Bertha did, enabling her and her colleagues to help Canada come of age. In fact, I think of Bertha Wilson and Brian Dickson as the Fred and Ginger of the Charter. Together they choreographed dazzling routines that consistently brought the house down, and gave the Charter the loving and secure childhood it needed to grow into a mature and confident adult. And so, the woman who wrote “An Intelligent Lawyer’s Guide to Drafting Wills” became the judge who wrote reasons in Andrews, Alberta Dairy Pool, Pelech, and Lavallée, among many others. Not always Charter cases, but always Charter values.
She went from being historic with her appointment to the Ontario Court of Appeal, to being heroic with her appointment to the Supreme Court of Canada, to being iconic when she retired.
What was particularly wonderful about Bertha was that she was both the owl and the pussycat. The owl had one of the most sophisticated legal minds this country has ever known, as comfortable with the philosophy of Ronald Dworkin as the literature of the Scottish Enlightenment. The pussycat had a wonderful wit, a gargantuan heart, and never forgot how the world looked to those who were vulnerable.
What drove her? Chief Justice Lamer, at her retirement, said she did it out of a sense of “obligation”:
Obligation to her work and to the law, to justice, to every individual Canadian in this country, obligation indeed to her own personal sense of commitment and integrity.
It was a public service the public appreciated deeply. The Montreal Gazette, in an editorial written the day after she announced her retirement, wrote
Justice Wilson has earned her place in the history book several times over. Justice Wilson has been far more than simply the first woman Justice on the Court. She has also been one of the finest judges on the Supreme Court. She has brought to the Court, along with evident intelligence and sound legal reasoning, an unswerving commitment to human rights.
I’m aware from reading the articles in Jamie Cameron’s book that there was some debate generated by Bertha’s unwillingness to describe herself as feminist. We need to remember the times. After she retired from the Court, she wrote the “Touchstones Report” for the Canadian Bar Association, bringing a klieg light to the legal profession’s stage and illuminating the reality that women were not getting enough of the best parts.
That report came out when the public’s romance with the Charter was, it seemed, going through a bit of a recession, and we had all that buzz about “judicial activism” and “politicization”. There was, as I recall, much talk about what being feminist was, whether whatever it was was a good thing, whether you wanted judges who were one, and whether it wasn’t better to have judges who had no views. Bertha was one of those who believed it was better to have an open mind than an empty one, and preferred to be judged by her record than by an adjective.
And it is in her record that we find who she was and why it doesn’t really matter what she called herself. I remember being at a legal conference in Toronto when the Morgentaler decision came out. Martha Minnow was one of the speakers at the conference, and all she talked about was the awe she felt that a judge of a Supreme Court could use the language she found in Bertha Wilson’s reasons about an unwanted pregnancy, where she said:
It is probably impossible for a man to respond, even imaginatively, . . . not just because it is outside the realm of his personal experience (although this is, of course, the case) but because he can relate to it only by objectifying it, thereby eliminating the subjective elements of the female psyche which are at the heart of the dilemma.
To Bertha, these words did not represent a deliberate act of courage, they represented who she was.
Jim Spence, then Treasurer of the Law Society of Upper Canada, said at her retirement that she was
A woman of law; a judge who is a woman. She addressed the experience of women and brought that experience into the legal order through her judicial reflection.
Her service, he said, was in the “cause of empowering the sisterhood and brotherhood of our common humanity.” And it was our common humanity to which she was irrevocably devoted.
When she started her Supreme Court journey, she said at her swearing-in that all she wanted to be was
. . . a faithful steward of the best of our legal heritage, interpreting it responsibly according to the rule of law and in the context of a contemporary pluralist society.
And in doing so so magnificently, she brought credit to the rule of law, to contemporary society, to women, and to the entire legal profession. She was not just, as Jim MacPherson said in his extraordinary eulogy, “a perfect judge for her time,” she was a perfect judge for any time.