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 just 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 school teacher 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 the late 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."
Judge Wilson's significance as the first woman appointed to the Supreme Court of Canada goes far beyond gender. She was sworn in on March 30, 1982, less than three weeks before The Queen arrived in Canada to sign the Charter of Rights and Freedoms into law. Consequently, her period on the bench was a time in which the definitions of individual and collective rights and freedoms were tested - from a woman's right to abortion, to a refugee claimant's right to be heard.
Beyond the conjunction of her gender and her timing, there was also Judge Wilson's character. An outsider with a ramrod sense of integrity and the bravery to avoid consensus and speak her own mind, she often took minority views when it would have been much easier to conform to the views expressed by her male colleagues. As Ms. Gwyn described her: "It's her sense and her sensibility, a kind of practical sensitivity tinged with Scottish asperity, enriched but by no means defined by her genes."
Nevertheless, the decision to appoint her to the Supreme Court was not without opposition. "The 'establishment' in the Ontario legal community was shameless in making the case that she [Madame Justice Bertha Wilson of the Ontario Court of Appeal]wasn't 'ready,' and that there were other [male]candidates who were better 'qualified,' according to Eddie Goldenberg in The Way it Works: 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 at the time," wrote Mr. Goldenberg, who was then special constitutional adviser to Minister of Justice Jean Chretien.
"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. I call them the Fred and Ginger of the Charter," said Madame Justice Rosalie Abella of the Supreme Court of Canada. "They choreographed 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 Madam Justice Wilson developed, she said that her commitment to fairness was "unshakeable" and her legacy was "profound" in so many areas.
Bertha Wilson, the only daughter and youngest child of Archibald and Christina (nee Noble) Wernham, was born in Kirkcaldy, Scotland. Although her parents, who had served as a nurse and a soldier in the First World War, had never finished high school, they valued education, even for girls. After Aberdeen Central Secondary School, Judge Wilson followed her two older brothers, Archibald and James, to the University of Aberdeen, earning a masters degree in 1944. A year later, after receiving her teaching certificate, she married Rev. John Wilson, a Presbyterian minister. She was 21 and he 25. They immigrated to Canada in 1949 and settled in Renfrew in the Ottawa Valley where Mr. Wilson was the minister in the Presbyterian Church.
Five years later, after Mr. Wilson had served as a sea-going padre in the Korean War, he was given a shore appointment in Halifax. That is when she thought about studying law. At 31, she was close to a decade older than her fellow students, but timing was on her side for there were five other women in her class of '50. She graduated in 1957, near the top of her class.
A year later her husband's naval appointment came to an end and the couple moved to Toronto where she qualified before the Ontario bar. In 1959 she began practising with Osler Hoskin and Harcourt, a large business law firm in Toronto, becoming a partner in 1968 and a Queen's Counsel in 1972. Her forte was research, a "lawyer's lawyer" as one former colleague described her, who rarely met clients and instead "analyzed judgments, read law reports, kept up with statutes, wrote opinions, set up an information retrieval system sophisticated enough to be fed later into a computer," according to Ms. Gwyn.
Just before Christmas of 1975, Ron Basford, then the Liberal Minister of Justice, surprised her - and many of her colleagues - by inviting her to become the first woman justice on the Ontario Court of Appeal. At her swearing in a month later she said: "I hope you will forgive me if I confess an element of unreality," going on to explain that she had never argued a case in court or "practised law in the way most solicitors practise." But she was not apologizing for her lack of litigation experience. On the contrary, she pointed out that the nature of her experience had helped her to remember that "people and the law are inextricably intertwined, and that the role of the profession is essentially to serve the needs of the people." True to her word, she made a fact-finding tour of Ontario prisons so that she could see for herself, "exactly where we were sending people."
In an era of huge advances in family law, her rulings soon attracted the attention of lawyers and judges across the country, especially those that advanced the rights of women, although she never pictured herself as a feminist lawyer and shied away from minority groups attempting to cling to her legal gown. She ruled in favour of the divorced common law wife of a beekeeper, arguing that she was entitled to a half-share in the business they had built up and run together, she wrote a minority opinion in favour of a girl who was denied a place on a boy's softball team simply because she was a girl and in favour of allowing an East Indian mathematician, who claimed she had been discriminated against in job interviews because of her race, sue in a civil action and claim damages. In all of these cases Judge Wilson found intriguing and innovative legal arguments, no doubt the product of all those years in the research department of Osler's.
From the beginning of her term on the Supreme Court of Canada in 1982, she wielded an eloquent pen even if her reasons were not always in accord with those of her male colleagues. "She was a vital part of that early burst of judicial energy and creativity that really characterized those early years of Charter interpretation," said Jamie Cameron a professor at Osgoode Hall Law School. This was before the words "judicial activism" were part of common parlance.
"She almost never wrote the opinion for the majority of the Court," Prof. Cameron pointed out. "My sense of it is that she was very much an individual and a loner and so I think it was a struggle for her to find her voice, to claim her voice and to maintain the integrity of her own voice." In Ms. Cameron's opinion, Judge Wilson was not fully accepted by the other members of the court and yet she "valued the opportunity" to speak her mind more than "she valued the opportunity to write for the court" and she had the conviction to set her views apart and to stand up for them. "I admire her for that," said Prof. Cameron. "It is much easier to go along with the set of reasons that has been prepared by another judge and has been agreed to by a majority of the court."
When the Supreme Court widened the legal meaning of self-defence, Judge Wilson was the author of the court's unanimous decision that restored a jury acquittal of a battered woman who shot her boyfriend in the back of the head after she had been subjected to years of physical abuse. The jury acquittal had been overturned by the Manitoba Court of Appeal and the woman's lawyer appealed that ruling to the Supreme Court of Canada. It rejected out of hand man's historically sanctioned right to own and discipline a woman. "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," Judge Wilson wrote.
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. In her written opinion in Regina v. Singh, she argued that: "The guarantees of the charter would be illusory if they could be ignored because it was administratively inconvenient." The ramifications of that decision, which has led to its own inconveniences in appeals and administrative costs are still hotly debated.
She retired from the Supreme Court on Jan. 4, 1991, at the age of 67, eight years before her mandatory retirement date. She cited "diminished energy" as her main reason and said she was looking forward to living a more normal domestic life. "In strictly legal terms, there is nothing she did in her decisions on abortion, divorce, or wife-battering that could not have been accomplished by a male judge with similar political imagination and will," lawyer Allan Hutchison wrote in The Globe and Mail the year after she retired. "But her experience as a woman made it more likely that she would understand and champion the history and hopes of Canadian women. Moreover, her judgments were more likely to be received differently - in negative and positive ways - than those of male judges."
A few months after she left the court, then prime minister Brian Mulroney appointed her to the Royal Commission on Aboriginal People to conduct a three-year investigation into the history of native-white relations and the social and economic problems facing Canada's First Nations. At about the same time, the Canadian Bar Association asked her to chair its Task Force on Women in the Legal Profession. The Report, which was called Touchstones, essentially let the legal profession know that women faced the same inequities before the bar as in other professions. She was elected a fellow of the Royal Society of Canada in 1991 and appointed a Companion of the Order of Canada the following year. She has spent the last several years living in Ottawa with her husband and out of the public eye.
Bertha Wilson was born in Kirkcaldy, Scotland, on Sept. 18, 1923. She died of Alzheimer's Disease at Rideau Place on-the-River on April 28, 2007. She was 83. She is survived by John Wilson, her husband of 61 years, her brother James and two nephews. There will be a memorial service in Ottawa at 2:00 p.m. on May 8, 2007 at St. Andrew's Presbyterian Church (Wellington and Kent Streets).