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Judging Bertha Wilson

Judging Bertha Wilson: Law as Large as Life

Copyright Date: 2001
Pages: 530
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  • Book Info
    Judging Bertha Wilson
    Book Description:

    Supported with the warmth and generosity of Wilson?s numerous personal anecdotes, this work illuminates the life and throught of a woman who has left an extraordinary mark on Canada?s legal landscape.

    eISBN: 978-1-4426-2077-3
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Foreword The Osgoode Society for Canadian Legal History
    (pp. ix-x)
    R. Roy McMurtry and Peter N. Oliver

    As a book about the first woman to be appointed to the Ontario Court of Appeal and to the Supreme Court of Canada, this biography of Bertha Wilson will have an inherent interest to many readers. Its importance also derives in large measure from the fact that she joined the Supreme Court at that critical moment when the Charter was entrenched and, as Ellen Anderson demonstrates, she played a large role in setting the course for Charter interpretation.

    To those who appreciate good biography, much of the interest in this book derives from Ellen Anderson’s account of the early life...

  4. Foreword
    (pp. xi-xii)
    Bertha Wilson

    When Ellen Anderson suggested I might write a foreword to this biography my thoughts naturally turned to Robert Burns:

    O wad some Pow’r the giftie gie us

    To see oursels as others see us!

    For it is often through another’s eye that we really and truly see ourselves. I have been most fortunate in the choice of the artist who painted my portrait and the author who wrote this book, and I am deeply indebted to them.

    Dr Anderson has been an indefatigable researcher and commentator. Like any good teacher, she is the grand expositor and her acute distillation of...

  5. Preface
    (pp. xiii-xviii)
  6. Acknowledgments
    (pp. xix-xxiv)
  7. PART ONE The Preparatory Years:: Life before the Bench

    • 1 Growing Up: Daughter, Sister, and Student
      (pp. 3-18)

      We are in the Wilsons’ apartment in the leafy Ottawa district of Lindenlea in early August of 1998. Light streams in through the windows overlooking the Gatineau Hills to the north and the city landscape to the south. There are balconies on either side with red geraniums and petunias and a pair of Japanese bronze cranes.

      Bertha Wilson has greeted me at the elevator with a warm embrace as if I am an old friend. There is some stiffness in her gait (she is almost seventy-five) but her cheeks have an eager pink flush and her blue eyes are affectionate....

    • 2 The Clergyman’s Wife
      (pp. 19-34)

      The countryside south of Macduff in early August is a patchwork stitched by stone walls. Across the road, sheep graze with angora goats in green pastures and fields of pale golden barley ripen in the sun. A distant row of beech trees is silhouetted against the sky. The door of the granite farmhouse stands hospitably open.

      Her voice on the telephone is polite but distinctly disappointed. The elderly lady had received a message about the Wilsons from her minister, the Reverend David Randall, and ever since had been sitting impatiently beside her phone. But it was not my call she...

    • 3 Diligence at Dalhousie
      (pp. 35-50)

      It is May 1999 and not a particularly hot day, but we have a hot and dusty job ahead of us. John Wilson is dressed in khaki shorts and a golf shirt.

      We meet at the elevators of the apartment building in Ottawa and head down. Awaiting us are two large basement storage lockers crammed with all the memorabilia that the Wilsons could not bear to part with and also could not accommodate in their apartment in 1997 at the time of their move.

      The material is housed in two lockers. John has a grocery cart ready to load items...

    • 4 The Osler Innovations
      (pp. 51-80)

      The Honourable John Arnup’s cottage near Fenelon Falls figures large in any account of his eminent career as a lawyer and as a judge. In itself it is a modest enough dwelling, not a show piece but the kind of place where a family has enjoyed many good times around a fieldstone fireplace.

      Called to the bar in 1935, John Arnup established himself as one of the leading litigators in Ontario. A partner at Weir & Foulds, he was frequently retained by other law firms who sought him out for his expertise when faced with a complex legal battle, especially a...

    • [Illustrations]
      (pp. None)
  8. PART TWO On the Bench:: The Ontario Court of Appeal and the Supreme Court of Canada

    • 5 The Ontario Court of Appeal
      (pp. 83-131)

      One day in 1975, Bertha Wilson’s nephew, Richard, who was at that time a fellow at Massey College at University of Toronto, encountered a lawyer from another firm at a social event. This man knew Bertha Wilson’s work and asked Richard if he thought she would be interested in a judicial appointment. Richard said he did not know, but he reported this rather peculiar conversation to his aunt. She was not interested in a trial division appointment.

      Then one of the firm’s lawyers received a call from a government official late in the fall of 1975; a political decision had...

    • 6 A Canadian Philosophy of Judicial Analysis
      (pp. 132-148)

      Mr Justice James MacPherson of the Ontario Court of Appeal knows Bertha Wilson well. He served as executive legal officer at the Supreme Court of Canada between 1985 and 1987; he was dean of Osgoode Hall Law School and teaching constitutional law there in 1990 when Wilson delivered her controversial ‘Will Women Women Judges Really Make a Difference?’ speech; and on a personal level, the Wilsons and the MacPhersons are friends who generally get together each year at the end of December for a proper celebration of Hogmanay, the Scottish new year.

      In late 1991, at the symposium Dalhousie hosted...

    • 7 The Supreme Court of Canada
      (pp. 149-166)

      The Supreme Court of Canada is housed in a magnificent dressed-stone building just west of the Parliament Buildings, on a high bluff overlooking the Ottawa River. First occupied by the Court in 1946, its twin bronze entrance doors are set into a façade of six pilasters and flanked by two projecting wings. The whole is crowned by a steep extravaganza of copper roofs, chimneys, and towers. Litigants seeking justice at the final court of appeal in the country approach up two shallow flights of stairs flanked by tall sculptures of Truth and Justice. At that point they must choose to...

    • 8 Diversity at the Margins
      (pp. 167-196)

      The public profile Wilson had developed during her years at the Ontario Court of Appeal was very much that of Bertha Wilson, champion of the underdog. Here was a staunch defender of individual human rights. What could be more appropriate than to appoint such a person to the Supreme Court of Canada at the same time as the entrenchment of the Charter of Rights and Freedoms – in other words, to choose someone who understood the Charter’s anti-majoritarian purpose? As Wilson saw it, a legislature is elected by popular vote and accountable to the electorate which will demand that it...

    • 9 Beyond Family Law: Justice for Women and Children
      (pp. 197-234)

      Despite the fervent expectations imposed upon her by the feminist groups who were delighted at her appointment to the Supreme Court and despite the periodic accusations of feminist bias heaped upon her by REAL Women, Bertha Wilson does not consider herself to be a feminist. Yet undeniably the influence of feminist theories, a scarcely perceptible undercurrent during her Dalhousie and early Osler years, gathered strength throughout the 1970s and 1980s. Whether or not she chose to espouse feminism or incorporate it into her personal belief systems, feminism had also enjoyed considerable success in effecting statutory reform, especially in the family...

    • 10 Getting Down to Business: Law and Economics in the Marketplace
      (pp. 235-270)

      When Wilson went to Ottawa in 1982, especially during her early years when she was effectively on probation and proving herself all over again, she prepared the reasons in more than her share of routine business law cases. These were then the bread and butter of the Supreme Court’s work. There was no reprise of the struggle which she had faced at the Ontario Court of Appeal where Jessup had assumed that corporate commercial work was too complex for her to comprehend. And given how severely the Court was undermanned, even if they had been inclined to do so, her...

    • [Illustrations]
      (pp. None)
    • 11 Contextual Proceduralism
      (pp. 271-316)

      Drawing in part upon her experience at Oslers, where Wilson had developed a unified research department, she often wished that the Supreme Court could have had the luxury of grouping together cases on the same issue and deciding them simultaneously. Grouping is a luxury we have been granting ourselves as we surveyed Wilson’s contributions to human rights, family, and business law decisions. These groupings have nevertheless been only loosely organized; legal facts stubbornly refuse to confine themselves to tidy legal categories.

      Grouping of cases at the Supreme Court did sometimes occur through fortuity – in thePelechspousal support contract...

    • 12 Outside the Court
      (pp. 317-332)

      Supreme Court justices are routinely called upon to fill in when the governor general must be absent. But because no woman had yet been appointed governor general of Canada¹ and because Wilson herself was the first woman Supreme Court justice, March 1982 was the first occasion in Canada when a woman had taken on the vice-regal duties and was required to give royal assent to three bills. Press scrutiny was heightened accordingly. Several newspapers reported the event, with photographs showing the pinch-hitting governor general in a black long-sleeved dress with a crisp white collar and a serious expression receiving the...

  9. PART THREE Life after Judging

    • 13 The Gender Equality Study
      (pp. 335-351)

      It is 26 August 1992 at the Canadian Bar Association’s annual meeting in Halifax. The schedule of events has drawn the largest registration ever in CBA history and one thousand members are in attendance. Bertha Wilson, retired justice of the Supreme Court of Canada and voluntary chair of the Canadian Bar Association Task Force on Women in the Legal Profession, is back in the city where Dean Horace Read had told her almost forty years earlier to take up crocheting.

      Bertha Wilson has a few telling comments to make. Existing research confirms what her own experience of working in a...

    • 14 The Royal Commission on Aboriginal Peoples
      (pp. 352-378)

      Bertha Wilson, travelling with the Royal Commission on Aboriginal Peoples, is in a hall in an aboriginal community. Each of the commissioners has an Indian partner. To honour their guests the Indians are dressed in traditional fringed doeskin robes decorated with geometric bead motifs. The commissioners have been welcomed into the inner ring and are participating in a traditional circle dance.

      Bertha Wilson’s partner is a tall teenaged Indian girl with a wide beaded hairband. The two of them are stepping in lively fashion around the circle. Wilson’s cheeks are pink and a delighted smile lights up her face as...

    • 15 Portrait of a Judge
      (pp. 379-384)

      Outside the offices of the justices on the second floor of the Supreme Court building hang individual portraits of all the Chief Justices clad in their ceremonial scarlet robes with the white mink trim.

      In April 2000 no women are among these portraits. Chief Justice Beverley McLachlin, the first woman ever to hold that office, was sworn in only a few months earlier on 17 January and her portrait has not yet been painted. Nevertheless there is a portrait of a woman judge well worth seeking out just one floor up. On the half-landing outside the library where architect Cormier’s...

  10. Adjunct Interviews
    (pp. 385-392)
  11. Archival Resources
    (pp. 393-394)
  12. Notes
    (pp. 395-450)
  13. Select Bibliography
    (pp. 451-454)
  14. Index
    (pp. 455-472)
  15. Back Matter
    (pp. 473-474)