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Friday, October 11, 2002

CHEERING BERTHA WILSON The First Woman on the Supreme Court of Canada

October 11, 2002,  Books in Canada

Judging Bertha Wilson:
Law as Large as Life
Ellen Anderson
The Osgoode Society for Canadian Legal History
University of Toronto Press
ISBN: 0802036481

In 1976 Bertha Wilson became the first woman on a provincial court of appeal, Ontario's, and in 1982 the first woman on the Supreme Court of Canada. The coming of the Charter has drawn public attention to the judges of the Supreme Court of Canada. Judging Bertha Wilson is the first biography of a Supreme Court judge of the Charter era. Ellen Anderson is a fan of Bertha Wilson. She neither judges her nor pleads a case for her. She cheers her on through a full life.

Wilson was born in Kirkcaldy in Scotland in 1923. She received an excellent Scottish education and developed a lifelong interest in philosophy growing from the Scottish Enlightenment tradition including Hume and Adam Smith. Both her brothers became philosophy professors. She married an equally bright Presbyterian minister, John Wilson, and began the life of a Scottish minister's wife. In 1949 John Wilson was called the the United Church in Renfrew Ontario. A stint as a navy chaplain brought the Wilsons to Halifax where, in 1954, Bertha enrolled at the Dalhousie Law School. John's job in church fundraising brought the Wilsons to Toronto and in 1958 Bertha was hired as an articling student by the old and respected firm of Osler, Hoskin & Harcourt.

Hard work, intelligence and and an appetite for reading that extended to the dustiest law books enabled Wilson to build from the routine legal research of an articling student a unique research practice at Osler's. She never went to court and had practically no clients of her own but she proved herself invaluable and was esteemed and rewarded accordingly. When Ottawa was looking for a woman to appoint to the Ontario Court of Appeal she seemed eminently qualified.

Anderson's account of Wilson's life is straightforward and agreeable. But the bulk of this book is a review of Wilson's judgments. Even for lawyers, trying to discern a pattern in the judgments in the hundreds of cases which circumstances bring before a long serving appellate judge is a daunting task. Anderson thinks she has found a 'Canadian Philosophy of Judicial Analysis' in Wilson's judgments. Her summaries of Wilson's judgments are superficial and uncritical. Only once does she tentatively suggest that Wilson fell short of her ideal. As one struggles to make sense of the flow of cases it may seem that Wilson was surrounded by fools, so obviously right Anderson always thinks she was. But few cases reach the appellate courts if there is not something to be said for both sides.

Judging Bertha Wilson is the culmination of years of work. It is based on Anderson's doctoral thesis 'Bertha Wilson: Postmodern Judge in a Postmodern Time'. She also wrote an MA thesis on the Scottish common-sense philosophers and their importance to Canadian law and culture and an LLB study on Wilson's jurisprudence. Anderson is the victim of too much postmodern education. Her theoretical apparatus only obscures her story. Her reading in fashionable theory has not been digested and she seems not have have managed the one thing educators at all levels say they aim at, critical thinking.

Anderson says Wilson is a postmodern judge with a distinctively contextual approach to the law. "Postmodern" or "contextual" occur hundreds of times in the book but could be deleted from the text with little damage to the syntax and no loss of meaning. Both are simply pretentious ways of excusing lax thinking. The judge who disregards context is a straw man.

Wilson's fondness for reading philosophy - she and her husband would spend days mulling over a passage from Heidegger - has encouraged Anderson to sprinkle references to Aristotle and Hume through her commentary on Wilson's judgments. Those who have not read philosophy will find these largely meaningless. Those who have will be sceptical. Anderson seems to think, and Wilson, who read the manuscript, may agree, that Hume's position on causation has some application to deciding cases. Thus "Her recognition that self-defence and provocation could co-exist and be co-determinative of the appellant's behaviour suggest a much more Humean notion of causation than is customary in our law courts". But Hart and Honoré's classic Causation in the Law, not in a bibliography that includes Aristotle, Derrida, Hume, Lyotard, Rorty and Adam Smith, firmly and rightly says that Hume's treatment of causation "is on a level of generality which is au dessus de la melée of the lawyer and the historian."

Wilson was a clear writer, an essential qualification, not by any means always met, for an appellate judge. She was fond of writing and wrote too much. On the bench she was courteous but firm, attentive, gently witty and well prepared. On the court of appeal and in commercial cases in the Supreme Court of Canada she stood generally for clarity and certainty. In family law cases, where feminists looked for a partisan, she was most concerned to see that legislative reforms, driven by the women's movement, worked as the legislatures intended. All this was neither exceptional nor exceptionable and well done.

Wilson's arrival on the Supreme Court of Canada coincided with the coming into force of the Charter. Judges knew well the dramatic implications of the Charter. They were faced with a choice between an restrained approach consistent with received jurisprudence and respectful of parliament and the legislatures and seizing on the Charter as an instrument of untrammelled power. With the slightest of hesitation they went for it. Wilson's account of the keenness of the judges to deal with Charter cases as they began to come before them, leaving aside, often to her, the traditional common law and statutory interpretation they had been used to, gives the lie to her claim "We didn't volunteer" set out in a 1999 contribution to Policy Options.

The most dramatic, and predictable, illustration of this was the Morgentaler decision. Positions on abortion are so vehemently held that on both sides ends seem to justify means. Politicians gave assurances when the Charter was being passed that, despite Roe v. Wade in the United States Supreme Court, it should not mean an end to the law on abortion. This was both true and disingenuous. Nothing in the Charter implies a right to an abortion. If you can find that in it you can find anything. But that is exactly the point. Finding whatever you like in the Charter was the predictable outcome.

Other judges tried to cover their decision in Morgentaler on procedural rights grounds. Wilson would have none of that and became the pro-choice hero as a result. She was pro-choice when she went on the court and no amount of legal analysis can get around the fact that she used the power given her by the Charter to enforce her personal convictions. Nor again, pace Anderson, does Hume have anything to do with it.

Wilson was both a card carrying New Democrat and a socialist. She seems never to have been politically active except on the bench. She showed her colours most freely in dissents that would have extended the Charter's
guarantee of freedom of association to collective bargaining and a right to strike. The principal cases in which she did this concerned the public sector, the most doubtful field for union activity. The point of such a fanciful reading of "freedom of association" is not that it would stop governments from passing back to work legislation or wage controls but that it would subject them and finally the minutiae of labour legislation to the arbitration of the Supreme Court of Canada, which, under Section 1 of the Charter will allow or disallow whatever it likes.

In McKinney, a case concerning compulsory retirement at universities, Wilson sets out her understanding of Canadian's political beliefs as an aid to interpreting the Charter:

"The vast majority of citizens nowadays want their government to be continuously active. Few people still subscribe to the doctrine that the less government does the better will be the result. The main controversies are centred not on whether government should act, but on how and when it should act.
...it seems generally accepted by our historians that the political philosophy of laissez-faire has not been embraced to any substantial degree in Canada.
I believe that this historical review demonstrates that Canadians have a somewhat different attitude towards government and its role from our U. S. neighbours. Canadians recognize that government has traditionally had and continues to have an important role to play in the creation and preservation of a just Canadian society. The state has been looked to and has responded to demands that Canadians be guaranteed adequate health care, access to education and a minimum level of financial security to name but a few examples."

Apparently the Charter has nothing to offer the substantial minority of right-wing Canadians. They are one minority not to be protected.

As Anderson explains it, Wilson believes the Charter is to be interpreted in the context of a kind of Canadian political consensus. Neither she nor Wilson seems able to contemplate the possibility that the consensus could change. If the longstanding Liberal hegemony were to end and be replaced by an Alliance/Conservative hegemony would the Charter be there to accommodate it or to thwart it?

Wilson was keen on intervenors. These she felt would help the court with "'legislative' facts illuminating the socio-political environment". In other words they would encourage a free ranging political debate before the court. An unnamed judge wrote in an internal memorandum that the court "now takes on the appearance of an ancient jousting contest with each side gathering up as many spear bearers as they can". The piling up of material from all interested lobbies before the court has coincided with a reduction of actual oral argument to a perfunctory ritual. Despite denials by Chief Justice Beverley McLachlin and others, the influence of the law schools' star ideologues serving as clerks to the justices must have expanded.

Anderson seems never to have read a judgment of Wilson's she does not like. But Wilson wrote not only too long but too often. She not only dissented often but often wrote "divergent concurrences". For Anderson this is sowing fruitful seeds for the future of the law. In fact, Wilson with her colleagues, was simply sowing confusion by the inability to settle collegially on reasons for judgment. Wilson's bright and curious mind and wide reading seems to have given her an exaggerated confidence in her opinions. Like a tiresome student in a seminar she always had to have her say. And keen on philosophy, history and sociology the facts and the law of particular cases became lost under generalities and her natural clarity became diffused.

When this book was published there was some comment in the press about Wilson's objection to what she called lobbying amongst the judges, from which she felt excluded.  Retired Chief Justice Antonio Lamer was quoted in The Globe and Mail as saying:

"Bertha was very often out in left field - you know, way out there. There was no point in going to Bertha's office and saying 'Bertha, if you were going to change this or that, I could go along with it.' Because she was as stubborn as a mule."

This is, perhaps, somewhat exaggerated and "left field" need not be understood in a political sense. But, if Wilson could often not bring other judges to her position or find her way to agreeing with them it was not because of some fault in the way the judges worked with each other on cases that requires procedural regulation. Wilson's free associating jurisprudence and garrulity is not distinctive but typical of the judges of the Charter era. Precisely because the judges have set themselves free from any strict or restrained construction of the Charter they will be in some difficulty settling on common reasons for judgment. What distinguished Wilson was her special confidence in her own point of view. And Wilson may never have developed a capacity for argument never having argued in court or public controversies.

Despite complaints from REAL Women to the Canadian Judicial Council that she had shown feminist bias in speeches while she was a judge, incidents which only confirm the unwisdom of judicial speechifying, Wilson says she is not a feminist. Perhaps this is postmodern irony. Her first work after she left the bench was heading a Task Force on Gender Equality for the Canadian Bar Association. This produced a predictably feminist report. The most contentious recommendations were for affirmative action to bring women along to law partnerships and the bench and compulsory sensitivity training for judges. Apparently, if this woman judge was not a feminist, male judges were presumptively chauvinist.

As the Task Force was winding down Wilson took on the most arduous task of her life as one of three non-native commissioners on the seven strong Royal Commission on Aboriginal Peoples. The commissioners travelled in the bitterest winter to isolated communities. There was the full panoply of sweat lodges, sweet grass smudges, healing circles and feather holding. The largely aboriginal staffed commission produced a vast report advancing the usual aboriginal wish list of self-government, land claims, more money and affirmative action of various kinds. Wilson thinks this is the most important work she ever did. But it is now over five years since the report was published. Most Canadians have forgotten about it, if they ever noticed it in the first place. What little has been done to implement its recommendations would likely have been done without it.

The ghastly emiseration of Canadian native peoples will not be ended by the repetition and endorsement of pie in the sky demands. Not just Canadian politicians, as Anderson seems to think, but non-native Canadians generally remain miles apart from native leaders and their advocates in their understanding of the proper place of natives in Canadian society. A largely native Royal Commission that listened almost entirely to native people could do nothing to bring them together. Wilson and her fellow commissioners made themselves part of the problem rather than part of the solution. This was predictable. Wilson gave her heart and not her mind to the work and neither she nor Anderson seems to get it.

Biography is not the best way to come to terms with the politics of the law and the Charter. Even without a heavy burden of theory it tends too much to hero worship, or, perhaps, for some, demonisation. It is pleasant to read how Bertha Wilson lived, but in its treatment of the important issues she dealt with this book is a failure. It is another case of heart over mind.

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