From the beginning of her term on the Supreme Court of Canada in 1982, she wielded a persuasive pen. When the Court widened the legal meaning of self-defence, Wilson was the author of the court’s unanimous decision restoring the jury acquittal of a battered woman who had shot her boyfriend in the back of the head after she had been subjected to years of physical abuse. In rejecting out of hand a man’s historically sanctioned right to own and discipline a woman, she wrote: “A man’s home may be his castle, but it is also a woman’s home – even if it seems more like a prison in the circumstances.”
In the case of Dr. Henry Morgentaler, while other judges ruled on procedural grounds, she wrote in favour of a woman’s constitutional right to choose to have an abortion. “It is not just a medical decision. It is a profound social and ethical one as well. It asserts that the woman’s capacity to reproduce is to be subject not to her control, but to that of the state.” In her written opinion in Regina v. Singh , a case in which she argued that refugee claimants had the right to oral hearings, she wrote: “The guarantees of the Charter would be illusory if they could be ignored because it was administratively inconvenient.”
The ramifications of that decision, which have led to its own inconveniences in appeals and administrative costs, are still hotly debated.
Wilson retired from the Supreme Court on January 4, 1991, at the age of sixty-seven, eight years before the mandatory retirement age of seventy-five.
She cited “diminished energy” as her main reason and said she was looking forward to living a more normal domestic life. In fact she had suffered from high blood pressure for thirty years and had been plagued with arthritis and a series of other health issues. There were other reasons that weren’t publicized at the time. Her great colleague Brian Dickson had retired six months earlier, and she was troubled by what she later described as the cliquish behaviour of some of her male colleagues. “People would spend long periods in each other’s rooms, arguing about changes and amendments, and so on and so forth,” she told her biographer Ellen Anderson. “You might not know anything about this, of course . . . So there was never any kind of opportunity to explain why you didn’t think that was a sound addition, or a sound subtraction.
The first thing you knew was that a group had now formed.”
Wilson had been an assiduous judge, having signed her name to more than 160 decisions, including at least fifty rulings under the Charter, and delivered some sixty-odd major speeches. The Royal Society of Canada elected her a fellow in 1991, she was appointed a Companion of the Order of Canada the following year, and she continued to add to her collection of honorary degrees – nearly fifty in total.
She may have stepped down from the Supreme Court, but she was certainly not ready “to sip Campari on the Riviera,” as she herself ruefully admitted. She had become enmeshed in two contentious and unwieldy projects, one within the legal profession and the other without. She agreed to chair the Canadian Bar Association’s Task Force on Women in the Legal Profession. The report, which was called Touchstones , let the legal profession know that women faced the same inequities before the bar as they did in other professions.
Many more women were graduating from law schools, but alarming numbers were leaving the profession. Conclusions about discrimination both before the bar and on the bench and recommendations that changes be made in the brutal system of billable hours to accommodate female lawyers with young children caused a furor within the profession. The stress of raising funds and staffing the commission, researching and writing the report, and then dealing with the acrimonious backlash caused Wilson considerable anguish.
Almost simultaneously with the Task Force, she accepted an appointment from Prime Minister Brian Mulroney to the Royal Commission on Aboriginal Peoples. The three-year mandate was to work with “Canada’s aboriginal peoples,”
conducting hearings into their grievances and their social and economic problems, and to find a way forward “so that they can control their own lives, contribute to Canadian prosperity and can share fully in it.” This was a thornier issue than any she had encountered on the bench. The Commission took five years to complete its report, years of extensive travel, gruelling hearings, eye-opening horror at the sufferings indigenous people had endured, cost overruns, internal staffing issues, and despair that much could be changed.