Lawyer and Supreme Court Judge
September 18, 1923-April 28, 2007
Had Bertha Wilson meekly followed the patriarchal advice handed down to her when she inquired about doing a law degree in the mid-1950s, the Canadian judicial system might have looked very different today.
“Madam, we have no room here for dilettantes. Why don’t you ju st go home and take up crocheting,” Horace E. Read, the dean of the law school at Dalhousie University barked at her when the minister’s wife and former schoolteacher appeared before him, seeking admission to the school in the fall of 1954. He finally relented, according to Madam Justice Wilson, who recounted the story in a rare interview with journalist Sandra Gwyn in Saturday Night magazine in 1985. “From my very first day of classes, I knew the law was my thing,” she said. “I just soaked it up like a sponge.”
Wilson was the first woman appointed a judge of the Ontario Court of Appeal, in 1975, and the first woman to sit on the Supreme Court of Canada.
Like most professions, the law was slow to welcome women into its ranks.
There were no female barristers in Ontario until Clara Brett Martin was called to the bar in 1897, three decades after Confederation. By the time Wilson was named a Queen’s Counsel, almost two centuries later, there were still fewer than three hundred female lawyers in the province; it would be another decade before the Law Society of Upper Canada, the self-governing body for lawyers in Ontario, elected Laura Legge as its first female treasurer (head), in 1983. A new century would have to dawn before one of Wilson’s younger colleagues, Beverley McLachlin, became the first woman appointed Chief Justice of the Supreme Court.
In Wilson’s day, women had to find not only their own bathrooms but their own niches within corporate firms. She did it by becoming a lawyer’s lawyer and establishing a sub-specialty in estate planning, especially in drawing up wills for the wives of wealthy clients at Osler, Hoskin & Harcourt in Toronto. Her forte was research, preparing legal documents, analyzing judgements and statutes, and setting up a nimble information-retrieval system in the days before Quicklaw and LexisNexis. Her diligence and organizing skills enabled her to solve tangled legal questions so adroitly that her billable hours diminished alarmingly, much to the distress of some senior partners.
Her ascendancy as a jurist owes something to circumstance: she had an enlightened husband and no children. John Wilson did the shopping and the cooking and he was proud of his wife’s intellect and her ambition. The intensely private Bertha Wilson never revealed if her lack of offspring was a deliberate choice or a personal sorrow, but it gave her the opportunity to pursue legal studies and to work diligently at a career outside the home.
Timing also played an auspicious role for Wilson. She was appointed to the Ontario Court of Appeal in 1975 in a dynamic era of family law reform.
Marriage and parenting were being redefined as economic partnerships in which both parties had rights as well as responsibilities. Patriarchal and prejudicial relationships in the workplace and in the home, which had been immutable for centuries, were suddenly open to interpretations based on new readings of legal arguments and current definitions of social, sexual, and racial discrimination.
The same was true of her appointment to the Supreme Court of Canada.
She was sworn in on March 30, 1982, less than three weeks before the Queen arrived in Canada to sign into law the Charter of Rights and Freedoms.
Consequently, her period on the bench was a pivotal time during which the definitions of individual and collective rights and freedoms were tested, from a woman’s right to abortion to spousal battering as a defence for murder to a refugee claimant’s right to be heard.
Her stance as a triple outsider – as a woman, an immigrant, and the child of a lower-middle-class family – gave her a different perspective from many of her legally and socially connected male colleagues. An independent thinker and a socialist, she was highly principled, with a ramrod integrity. “It’s her sense and her sensibility,” Gwyn explained, “a kind of practical sensitivity tinged with Scottish asperity, enriched but by no means defined by her genes.”