Judging Bertha Wilson:Law as Large as Life:
The Osgoode Society for Canadian Legal History

by Ellen Anderson
472 pages,
ISBN: 0802036481

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First Woman on Canada's Supreme Court
by John Pepall

In 1976 Bertha Wilson became the first woman on a provincial court of appeal, Ontario's, and in 1982 the first woman on the Supreme Court of Canada. The coming of the Charter has drawn public attention to the judges of the Supreme Court of Canada. Judging Bertha Wilson is the first biography of a Supreme Court judge of the Charter era. Ellen Anderson is a fan of Bertha Wilson. She neither judges her nor pleads a case for her. She cheers her on through a full life.

Wilson was born in Kirkcaldy in Scotland in 1923. She received an excellent Scottish education and developed a lifelong interest in philosophy growing from the Scottish Enlightenment tradition that included Hume and Adam Smith. Both her brothers became philosophy professors. She married an equally bright Presbyterian minister, John Wilson, and began the life of a Scottish minister's wife. In 1949 John Wilson was called to the United Church in Renfrew Ontario. A stint as a navy chaplain brought the Wilsons to Halifax where, in 1954, Bertha enrolled at the Dalhousie Law School. John's job in church fundraising brought the Wilsons to Toronto and in 1958 Bertha was hired as an articling student by the old and respected firm of Osler, Hoskin & Harcourt.

Hard work, intelligence and an appetite for reading that extended to the dustiest law books enabled Wilson to build from the routine legal research of an articling student a unique research practice at Osler's. She never went to court and had practically no clients of her own but she proved herself invaluable and was esteemed and rewarded accordingly. When Ottawa was looking for a woman to appoint to the Ontario Court of Appeal she seemed eminently qualified.

Anderson's account of Wilson's life is straightforward and agreeable. But the bulk of this book is a review of Wilson's judgments. Even for lawyers, trying to discern a pattern in the reasons given in the hundreds of cases that circumstances bring before a long serving appellate judge is a daunting task. Anderson believes she has found a ŠCanadian Philosophy of Judicial Analysis' in Wilson's judgments. Her summaries of Wilson's judgments are superficial and uncritical. Only once does she tentatively suggest that Wilson fell short of her ideal. As one struggles to make sense of the flow of cases it might appear that Wilson was surrounded by fools as Anderson cannot see beyond Wilson's reasons. But few cases reach the appellate courts if there is not something to be said for both sides.

Judging Bertha Wilson is the culmination of years of work. It is based on Anderson's doctoral thesis ŠBertha Wilson: Postmodern Judge in a Postmodern Time'. She also wrote an MA thesis on the Scottish common-sense philosophers and their importance to Canadian law and culture and an LLB study of Wilson's jurisprudence. Anderson is the victim of too much postmodern education. Her theoretical apparatus only obscures her story. Her reading in fashionable theory has not been digested and she seems not to have managed the one thing educators at all levels say they chiefly aim at, critical thinking.

Anderson insists that Wilson is a postmodern judge with a distinctively contextual approach to the law. "Postmodern" or "contextual" occur hundreds of times in the book but could be deleted from the text with little damage to the syntax and no loss of meaning. Both are simply pretentious ways of excusing lax thinking. The judge who disregards context is a straw man.

Wilson's fondness for reading philosophy¨she and her husband would spend days mulling over a passage from Heidegger¨has encouraged Anderson to sprinkle references to Aristotle and Hume through her commentary on Wilson's judgments. Those who have not read philosophy will find these largely meaningless. Those who have will be sceptical. Anderson seems to think, and Wilson, who read the manuscript, may agree, that Hume's thinking on causation has some application to deciding cases. Anderson writes: "Her recognition that self-defence and provocation could co-exist and be co-determinative of the appellant's behaviour suggest[sic] a much more Humean notion of causation than is customary in our law courts". But Hart and HonorT's classic Causation in the Law, and not in a bibliography that includes Aristotle, Derrida, Hume, Lyotard, Rorty and Adam Smith, firmly and rightly says that Hume's treatment of causation "is on a level of generality which is au dessus de la melTe of the lawyer and the historian."

Wilson was a clear writer, an essential qualification, not always met, for an appellate judge. She was fond of writing and wrote too much. On the bench she was courteous but firm, attentive, gently witty and well prepared. On the court of appeal and in commercial cases in the Supreme Court of Canada she stood generally for clarity and certainty. In family law cases, where feminists looked for a partisan, she was most concerned to see that legislative reforms, driven by the women's movement, worked as the legislatures intended. All this was neither exceptional nor exceptionable.

Wilson's arrival on the Supreme Court of Canada coincided with the coming into force of the Charter. Judges knew well the dramatic implications of the Charter. They were faced with a choice between a restrained approach consistent with received jurisprudence and respectful of parliament and the legislatures and seizing on the Charter as an instrument of untrammelled power. With only the slightest of hesitation they went for it. Wilson's account of the keenness of the judges to deal with Charter cases as they began to come before them, leaving aside, often to her, the traditional common law and statutory interpretation they had been used to, gives the lie to her claim "We didn't volunteer" set out in a 1999 contribution to Policy Options.

The most dramatic, and predictable, illustration of this was the Morgentaler decision. Positions on abortion are so vehemently held that on both sides ends seem to justify means. Politicians gave assurances when the Charter was being passed that, despite Roe v. Wade in the United States Supreme Court, it should not mean an end to the law on abortion. This was both true and disingenuous. Nothing in the Charter implies a right to an abortion. If you can find that in the Charter you can find anything. But that is exactly the point¨Judges finding exactly what they like in the Charter was a predictable outcome.

Other judges tried to cover their decision in Morgentaler on procedural rights grounds. Wilson would have none of that and became the pro-choice hero as a result. She was pro-choice when she joined the court and no amount of legal analysis can get around the fact that she used the power given her by the Charter to enforce her personal convictions.

Wilson was both a card-carrying New Democrat and a socialist. She seems never to have been politically active except on the bench. She showed her colours most freely in dissents that would have extended the Charter's guarantee of freedom of association to collective bargaining and a right to strike. The point of such a fanciful reading of "freedom of association" is not that it would stop governments from passing back to work legislation or wage controls but that it would subject them and finally the minutiae of labour legislation to the arbitration of the Supreme Court of Canada, which, under Section 1 of the Charter will allow or disallow whatever it likes.

In McKinney, a case concerning compulsory retirement at universities, Wilson sets out her understanding of the political beliefs of Canadians as an aid to interpreting the Charter:

The vast majority of citizens nowadays want their government to be continuously active. Few people still subscribe to the doctrine that the less government does the better will be the result. The main controversies are centred not on whether government should act, but on how and when it should act.

...it seems generally accepted by our historians that the political philosophy of laissez-faire has not been embraced to any substantial degree in Canada.

...I believe that this historical review demonstrates that Canadians have a somewhat different attitude towards government and its role from our U.S. neighbours. Canadians recognize that government has traditionally had and continues to have an important role to play in the creation and preservation of a just Canadian society. The state has been looked to and has responded to demands that Canadians be guaranteed adequate health care, access to education and a minimum level of financial security to name but a few examples.

Apparently the Charter has nothing to offer the substantial minority of right-wing Canadians. They are one minority not to be protected.

As Anderson explains it, Wilson believes the Charter is to be interpreted in the context of a kind of Canadian political consensus. Neither she nor Wilson seems able to contemplate the possibility that the consensus could change. If the longstanding Liberal hegemony were to end and be replaced by an Alliance/Conservative hegemony would the Charter be there to accommodate it or to thwart it?

Anderson seems never to have read a judgment of Wilson's she did not like. But Wilson wrote not only too long but also too often. She not only dissented often but often wrote "divergent concurrences". For Anderson this amounts to sowing fruitful seeds for the future of the law. In fact, Wilson, with her colleagues, was simply sowing confusion by their inability to settle collegially on reasons for judgment. Wilson's bright and curious mind and wide reading seems to have given her an exaggerated confidence in her opinions. Like a tiresome student in a seminar she always had to have her say. And keen on philosophy, history and sociology the facts and the law of particular cases became lost under generalities and her natural clarity became diffused.

When this book was published there was some comment in the press about Wilson's objection to what she called lobbying amongst the judges, from which she felt excluded. Retired Chief Justice Antonio Lamer was quoted in The Globe and Mail as saying: "Bertha was very often out in left field¨you know, way out there. There was no point in going to Bertha's office and saying ŠBertha, if you were going to change this or that, I could go along with it.' Because she was as stubborn as a mule."

This is, perhaps, somewhat exaggerated and "left field" need not be understood in a political sense. But, if Wilson could often not bring other judges to her position or find her way to agreeing with them it was not because of some fault in the way the judges worked with each other on cases that required procedural regulation. Wilson's free associating jurisprudence and garrulity is not distinctive but typical of the judges of the Charter era. Precisely because the judges have set themselves free from any strict or restrained construction of the Charter they will be in some difficulty settling on common reasons for judgment. What distinguished Wilson was her special confidence in her own point of view. And Wilson may never have developed a capacity for argument never having argued in court or public controversies.

Wilson says she is not a feminist. But her first work after she left the bench was heading a Task Force on Gender Equality for the Canadian Bar Association. This produced a predictably feminist report. The most contentious recommendations were for affirmative action to bring women along to law partnerships and the bench and compulsory sensitivity training for judges. Apparently, if this woman judge was not a feminist, male judges were presumptively chauvinist.

In 1992 Wilson took on the most arduous task of her life as one of three non-native commissioners on the seven strong Royal Commission on Aboriginal Peoples. The commissioners travelled in winter to isolated communities. There was the full panoply of sweat lodges, sweet grass smudges, healing circles and feather holding. The commission's vast report endorsed an aboriginal wish list of self-government, land claims, more money and affirmative action. Wilson thinks this is the most important work she ever did. It is now over five years since the report was published. Most Canadians have forgotten about it. The ghastly emiseration of Canadian native peoples will not be ended by the endorsement of pie in the sky demands. Non-native Canadians and native leaders remain miles apart in their understanding of the proper place of natives in Canadian society. Wilson and her fellow commissioners made themselves part of the problem rather than part of the solution. This was predictable. Wilson gave her heart and not her mind to the work.

Biography is not the best way to come to terms with the politics of the law and the Charter. Even with a heavy burden of theory it tends too much to hero worship, or, perhaps, for some, demonisation. It is pleasant to read how Bertha Wilson lived, but in its treatment of the important issues she dealt with this book is a failure. It is another case of heart over mind.

John Pepall practised law in Toronto until the end of last year.


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