Judge Bertha Wilson: Law as Large as Life

Christopher English is a professor of history at Memorial University of
Newfoundland and the author of A Cautious Beginning: The Emergence of
Newfoundland’s Supreme Court of Judicature in 1791–92.

All those interested in the history of Canadian law will be struck by
the symmetry of Bertha Wilson’s appointment to the Supreme Court
within weeks of the promulgation of the Canadian Charter of Rights and
Freedoms in 1982. She brought new sensibilities to the Court: as a woman
and immigrant; as a lawyer who had researched the law rather than
practised it; and as a judge who interpreted the law as a reflection of
societal values. Her innovative judgments and dissenting opinions in
family, tort, and corporate law during her tenure at the Ontario Court
of Appeal, on which Anderson is an informed—if exhausting—guide,
predisposed her to a contextual and expansive view of litigants and
legal issues. The Charter set the legal parameters and within them
Wilson enthusiastically and conscientiously engaged the Court in
interpreting, and occasionally framing, public policy. The author terms
this a “principled contextuality,” which distinguished Wilson as
“a postmodern judge in a postmodern time.” This signals Wilson’s
emphasis on contingency—her awareness of our continually shifting
perspectives on legal issues. But we are reminded of the continuities
that linked her university studies in Scotland in history and
philosophy, her distinctly Presbyterian moral sensibility, and her life
experiences as girl guide, parson’s wife, and social democrat with her
judicial activism on the Supreme Court.

In her research, Anderson received Wilson’s full cooperation. She
delineates Wilson’s active postretirement years, collaborating on a
gender equality report for the Canadian Bar Association (which proved
too reformist for the profession) and serving as a member of the Royal
Commission on Aboriginal Peoples. Anderson claims that “it is in large
part because of Wilson’s tireless efforts ... that Canadian society
evolved as expansively and generously and optimistically as it has.”

Anderson, who admires Wilson, does offer an occasional personal
corrective. A string of judgments in family law (Pelech) set too high a
threshold for reopening final financial settlements and may have
adversely affected the interests of children. Another qualification
betrays the biographer’s ideological colors—a singular lapse in this
fully researched and persuasive study: in labor law cases “although
one might assume a card-carrying member of the NDP would be consistently
pro-labour ... this would not always be the case.” Here it is the
author’s surprise that surprises.