ISSN 1062-7421
Vol. 12 No. 2 (February 2002) pp. 90-94.

JUDGING BERTHA WILSON: LAW AS LARGE AS LIFE by Ellen Anderson. Osgoode Society for Canadian Legal History and University of Toronto Press, 2001. Cloth $50.00. ISBN 0-8020-3648-1.

Reviewed By Thomas M. J. Bateman , Department of Political Studies, Augustana University College, Alberta.

Biographies of Canadian jurists do not swell the shelves of this country's libraries. There is the odd book-length treatment of the life and work of a Lyman Duff and an Emmett Hall, and of course Jack Batten has contributed more than his fair share of books on judges and lawyers in this country. However, the genre is strangely undeveloped in Canada. Even a recent biography of former Supreme Court Justice William McIntyre, written by constitutional law professor W. R. McConnell, is not so much a biography as a stiff compilation of interviews with the subject and a summary of notable decisions (McConnell 2000).

My guess is that Canadians are not as interested in their judges as are Americans in theirs. It is tempting to conclude that the number of judicial biographies has some relation to the perception of courts as full partners in the politics and government of country. Americans and Canadians, I think, still differ in this perception. However, as the Charter deepens its roots in the Canadian political order, and as calls continue to mount for a more transparent judicial appointment process in Canada, the perception will change and writers will find the need to learn about the judges themselves hard to resist.

Ellen Anderson's biography of former Supreme Court Justice Bertha Wilson may be considered by court watchers as a marker of the transition in Canadian legal culture from the common law-based, quiet realism of which scholars like Paul Weiler (1974) have written to a more complex, politicized, embedded contextualism embodied by the Antonio Lamers, the Claire L'Heureux-Dub­s, and Louise Arbours. Bertha Wilson herself is the transitional figure, combining Scottish Enlightenment common law liberalism with sensitivity to Canada's peculiar mix of British parliamentarism, American federalism, European human rights concepts, multiculturalism, and multinationalism.

Bertha Wilson came to the law late in life, after she and her husband, a Presbyterian minister, moved from their native Scotland to Canada in 1949. Wilson had expected that she would fulfill her role as a minister's wife, a role strictly defined in Scottish Presbyterianism but rather less so in Canada. She was left without a role. And her husband John eventually drifted from the conventional ministry and into a chaplaincy during the Korean War. Bertha had time on her hands. Resident in Halifax and living near Dalhousie University, she decided to study law. There she excelled and fell under the influence of Canadian constitutional scholar William Lederman, whose realist inclinations seemed right to her.

Page 91 begins here

She articled at Osler, Hoskin and Harcourt in Toronto in the 1960s, and was kept on as a "lawyer's lawyer", preparing research materials the other lawyers would use in work with clients. She essentially became the research department at Oslers, pursuing her love of research and demonstrating prodigious organizational skills. By 1975, she was appointed to the Ontario Court of Appeal, the provincial high court considered most prestigious in the Canadian provincial legal constellation.

In 1982, Prime Minister Pierre Trudeau achieved a life-long ambition--the entrenchment of a charter of individual rights. But of course the Charter is mere parchment; one needs the right people to give it the right interpretation. Trudeau needed new jurists to give it teeth, not traditionalists in the "quiet court" tradition. Wilson was plucked from the Ontario Court of Appeal and appointed to the Supreme Court of Canada just two weeks prior to the Charter's proclamation on April 17, 1982. The clincher for Trudeau was his reading of one of Wilson's O. C. A. judgments in which she held that the existence of comprehensive human rights codes did not foreclose common law rights to sue for discrimination-related wrongs. For Wilson, individuals should get the best of the common law and the administrative state, not one or the other.

The 1980s would a propitious time for an energetic Supreme Court appointee. The courts, Wilson has never ceased to insist, did not engage in a power grab: elected representatives of the people thrust the Charter upon them, no less. They now had a large and awesome responsibility to give effect to its terms (Wilson, 1999). Further, several judges on the Court fell ill during the early Charter period, leaving to justices like Brian Dickson, Antonio Lamer, and Wilson the lion's share of responsibility for building the interpretive structure of Charter jurisprudence.

However, as Anderson is right to insist, Wilson wrote decisions in many areas of law, and, although Wilson is known for her human rights jurisprudence, this biography is instructive in detailing her contribution to business law, torts, family law, and administrative law. Wilson's work in these other areas indicates that she is a more complicated thinker than some suggest. Wilson, being the first woman on the Court, was the hope of feminists seeking transformation of legal doctrine and practice in Canada. And she delivered much of the time, most famously in the 1988 decision striking down Canada's criminal code provisions restricting access to
abortions. Wilson, however, never labeled herself a feminist and indeed made decisions in family law, for instance, which disappointed her erstwhile ideological companions.

On a deeper level, though, Anderson describes carefully that Wilson's jurisprudence is in some ways more sweeping in its implications than the results-oriented feminism of the interest groups. Anderson asserts throughout that Wilson is the child of the Scottish Enlightenment, which itself embraces Humean skepticism about metaphysical propositions and rigid rules, a Smithian optimism about natural human sympathy and the (modest) ability of people to do the right thing when told of its merits, and an appreciation of context and circumstance emanating from the union of matters of law and equity in the Scottish court system. The reader is presented with the intriguing suggestion that the Charter, under Wilson's influence, is as much Scottish as American or European in its roots.

Page 92 begins here

Wilson's jurisprudence is "principled contextuality," a rule-based incorporation of particular circumstances of those affected by a law into a judgment of its constitutionality. Rights should mean different things in different circumstances. Anderson quotes a passage from Wilson's judgment in a 1989 freedom of expression Charter case:

"One virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom, which is truly at stake in the case, as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1. It is my view that a right or freedom may have different meanings in different contexts" (pp. 266-

In court procedure her contextualism implied an opening up of the intervener process. She found prescient and instructive Peter Russell's 1983 remark that the Charter's real influence would not be in the decisions made about rights but rather in the new way in which decisions would be made about rights (Russell, 1983). For Wilson, principled contextuality married legal modernism and what Anderson calls her Scottish Enlightenment pragmatism by maintaining that the attention to context was principled by virtue of the defined procedures in court and in jurisprudential analysis set to guide it. This is how equitable concerns could be given a principled basis.

Wilson's contextualism, Anderson argues, had another dimension. Her decision-making manifests a willingness to apply legal concepts across legal specializations, for example incorporating trust principles into family law. Further, she refused to compartmentalize constitutional analysis as a separate analytical category (p. 169). Although a celebrated Canadian constitutional decision describes the constitution as "a living tree capable of growth within its natural limits," Anderson sees Wilson's work as premised on another metaphor, that of the strawberry patch:

"One might think of postmodernist law spreading itself by traveling runners like a strawberry patch growing out of its neat rows; the parent plants (like modernist principle) remain as a source of vigor while the new plantlets extend themselves tentatively across well-trodden pathways, putting down roots in more friable soil or locations with more favorable microclimates where they ultimately produce greater yields. The role of the 'judicial gardener' has changes; there is no longer just the noble tree sheltering the few, but a network of interconnected growth capable of nourishing us all, although still transplanted back into neat rows for greater efficiency in cultivation for harvesting" (p. 141).

Wilson retired from the Supreme Court in 1990, and soon was appointed to a Canadian Bar Association commission to study gender inequality in the Canadian

Page 93 begins here

legal profession and recommend changes to accommodate women. The commission met with much resistance and functioned without much financial support from the profession. Despite the profile Wilson brought to it, the commission did not avail much. Later, Wilson was appointed to the Royal Commission on Aboriginal Peoples (RCAP), a task that took her to the far reaches of the country and to dozens of small, struggling aboriginal settlements. Within the space of a few years Wilson had deployed her skills examining inequalities on the most privileged of professions in Canada and then in the most desperate of communities. She was struck by the depth of social problems she discovered in her RCAP work compared to the comparatively trivial issues-the size of fishing nets, the selling of a grizzly pelt-that
made it to the Supreme Court of Canada (pp. 357-58). Despite her best efforts and a prodigious budget, this commission also failed to avail much.

Part of what makes this book interesting is Wilson's peculiar career trajectory. She stands as an example to all who by intention or circumstance fail to follow the well-trodden paths. However, her unusual progress in the law exposed her to criticism. She became a Supreme Court justice without practicing law in the conventional sense and without serving as a trial judge. The irony here is that the devotee of a principled contextuality was detached in significant ways from the practical, grubby details of a life in the law. This is perhaps why she was more willing than others to second-guess factual findings of trial judges (pp. 112-13). It may also be why she bristled at the internal jockeying and coalition-building among Supreme Court justices when judgments were drafted. Bertha Wilson, known perhaps more for her dissents and concurrences that her majority judgments, thought the force of ideas alone should persuade. Human organizations, including appeal courts, often work differently.

Anderson's book is an engaging, competent, and illuminating treatment of the life of one of the chief architects of Charter jurisprudence and human rights in Canada. Some slips that the editor should have caught mar it. The Canadian constitution was patriated, not "repatriated" (p.143). Pierre Trudeau became Prime Minster in 1968, not 1967 (p. 143). The section 33 notwithstanding clause was and is available to the federal Parliament, not just the provinces (p. 289). The Charlottetown Accord was concocted in 1992, not 1987 (p. 365). Abortion antagonists Chantal Daigle and Jean Guy Tremblay cohabited in 1988, not 1998 (p. 296).

Aside from these slips, Anderson often seems to assert rather than demonstrate the connection between Wilson's jurisprudence and the influence of the Scottish Enlightenment (see pp. 151, 176, 181, 267, e.g.). Some more theoretical background on the thought of Hume and Smith would not have distracted the reader but instead would have augmented one of Anderson's central assertions in her book. In addition, her eagerness to identify Scottish Enlightenment with contemporary legal post-modernism seems forced and gratuitous. The reader is never told why it is really necessary to do obeisance to this particular god.

Regardless, Ellen Anderson has written a fine biography that can be read with profit by professionals and undergraduates alike. I hope it will stimulate the writing of others.

Page 94 begins here


McConnell, W. H. 2000. WILLIAM R. MCINTYRE: PALADIN OF COMMON LAW. Ottawa: Carleton University Press.

Russell, Peter H. 1983. "The Political Purposes of the Canadian Charter of Rights and Freedoms" CANADIAN BAR REVIEW 61: 30-54.


Wilson, Bertha. 2001. "We Didn't Volunteer," In JUDICIAL POWER AND CANADIAN DEMOCRACY. Ed. Paul Howe and Pewter H. Russell. Montreal and Kingston: IRPP/McGill-Queen's University Press, 73-79.


Copyright 2002 by the author, Thomas M. J. Bateman.