Wilson had the courage to avoid consensus and to speak her mind.
Although she didn’t consider herself a feminist, she believed in equality and fairness. Known as the “Great Dissenter,” she was a prolific writer who wielded an eloquent pen and frequently took minority positions on the Court when it would have been much easier to conform to the views expressed by colleagues. “Bertha was very often out in left field” and “she was stubborn as a mule,” her fellow judge Antonio Lamer told Globe and Mail reporter Kirk Makin in 2002.
“It was not just her brilliant mind, which was remarkable in its rigour, it was the serendipitous presence of Bertha Wilson and Brian Dickson on the Supreme Court of Canada,” Madam Justice Rosalie Abella said after Wilson’s death on April 28, 2007. “I call them the Fred and Ginger of the Charter. They gave it the muscular interpretation that launched the Charter in its first decade,” especially in contrast to the legalistically anemic Bill of Rights that preceded it. Speaking of the jurisprudence that Judge Wilson developed, Abella said that her commitment to fairness was “unshakeable” and her legacy was “profound” in many areas.
That’s not to suggest that Wilson’s appointment to the bench by Prime Minister Pierre Trudeau was met with enthusiasm or even equanimity. “The ‘establishment’ in the Ontario legal community was shameless in making the case that she wasn’t ‘ready,’” Eddie Goldenberg, then special constitutional advisor to justice minister Jean Chretien, wrote in his memoir The Way ItWorks: Inside Ottawa . “Even Chief Justice Bora Laskin, who had his own preferred candidate at the time, made that argument very vociferously to Prime Minister Trudeau.”
From the beginning, it was the study, not the practice of law that intrigued Wilson. Even so, she brought a quotidian rather than an abstract focus to legal issues that enabled her to see the practical consequences of legal decisions.
Her logical mind would have made her stand out at any time, but it made her especially significant in an era of landmark rulings that reshaped Canadian society. She led the way for all Canadians – and that included women and First Nations – to be equal in private and professional life.
Bertha Wilson was the only daughter and the youngest of Archibald and Christina (nee Noble) Wernham’s three children. She was born on September 18, 1923, in Kirkcaldy, Scotland, an industrial town on the north side of the Firth of Forth. Although her patriotic parents, who had served as a soldier and a nurse in the First World War, never finished high school, they valued education and had high academic expectations for their children. Her father, a commercial traveller for a stationery firm, was rarely home during the week, so her ambitious mother was the prime disciplinarian.
The Wernhams moved to Aberdeen when Bertha was three. After primary school she went to Aberdeen Central Secondary School and then followed her two older brothers, Archibald and James, to the University of Aberdeen. After graduating with a master’s degree in 1944, she went to the local teachers’ training college, earning her certificate in 1945. Despite her mother’s objections, she married John Wilson, a Presbyterian minister, a pacifist, a socialist, and a close friend of her brother Jim, on December 14, 1945.
She was twenty-one; he was twenty-five.
After four years of ministering to the community of Macduff, a fishing village on the northern coast of Aberdeenshire, the Wilsons both wanted to escape the ingrained attitudes of their parishioners. Canada, with its postwar opportunities, beckoned, not least because her brother Jim and his family had settled there. In 1949 the Wilsons sailed across the Atlantic on a converted troop carrier to take up a “call” from a Presbyterian congregation in Renfrew, in the Ottawa Valley.
Yet more waves of change were about to buffet them. John Wilson had come to regret his vocal pacifism during the Second World War and his refusal to serve in the Armed Forces. After forging a close friendship with the Presbyterian Chaplain of the Fleet for the Royal Canadian Navy, Wilson agreed to enlist late in 1951 to serve as an rcn chaplain in the Korean War. His six-year stint meant separation for the Wilsons and an opportunity for her to move to Ottawa, where she found a job working for two dentists – the first time she had worked independently of her husband’s vocation – and then to settle in Halifax, her husband’s home base, where once again she had no official duties related to his work.