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‘A powerful flame extinguished’

|Written By Jennifer McPhee

Bertha Wilson, the first woman appointed to both the Court of Appeal for Ontario and the Supreme Court of Canada, was the kind of person who realized she would need to prove herself wherever she went, but that didn’t bother her one bit.

Justice Bertha Wilson, shown in her portrait from the Supreme Court’s collection by Mary Lennox Hourd, was the first woman appointed to the Supreme Court of Canada. Portrait by Mary Lennox Hourd

Wilson, who died last week at 83 after a long battle with Alzheimer’s disease, immigrated to Canada from Scotland with her husband Rev. John Wilson, a Presbyterian minister, in 1949. She worked around the clock with her husband both before and after moving to Canada and settling in Renfrew, Ont.

A few years later, her husband joined the Navy during the Korean War, and was later posted in Halifax. It was in 1955 she decided to enroll at Dalhousie University’s law school.

At the time, she didn’t intend to practise law, says Gibson & Adams LLP lawyer Ellen Anderson, author of the biography Judging Bertha Wilson: Law as Large as Life. Wilson was looking for an area of intellectual study, thought that everyone should have some understanding of the law, and wanted to help her husband’s parishioners with their legal problems.

She took it in stride and refused to be offended when Horace Read, dean of the law school, famously said to her: “Have you no appreciation of how tough a course the law is? This is not something you can do in your spare time. We have no room here for dilettantes. Why don’t you go home and take up crocheting?”

Needless to say, Wilson changed her mind about practising and was called to the bar in Halifax in 1957 and in Ontario in 1959. She became the first woman lawyer and first woman partner at Osler Hoskin & Harcourt LLP in Toronto, where she quickly became recognized for her superior analytical research skills and established a new a research department. The role

prepared her for a later appointment at the Court of Appeal, says Tim Kennish, of Oslers who worked with her for more than a decade.

He recalls Wilson was an independent thinker, inclined to be mindful to the rights of individuals and to examine issues from both sides of the fence. She was reserved, but extremely pleasant with a charming Scottish accent.

“But she didn’t back down when she felt a point of principle was at stake,” he says. “She held her position, but she did it with great charm,” he says.

“She was quite held in high regard by the lawyers of the day. . . . Given that there were no women at the firm - and that was no accident - you have to assume that she was swimming upstream to establish herself.”

In fact, Wilson was initially hired reluctantly by the firm on a temporary basis. When she was asked to take on a major assignment on her last day, she informed management she would like to help, but it was her last day. The firm did an about face and invited her to stay, which she did, for 17 years, until she was appointed to the appeal court in 1975.

At the time, the reaction to her appointment was mixed, says Anderson. One judge, who knew Wilson, called to congratulate her.

“But there were other judges on the Court of Appeal who were less than enthusiastic about her being appointed,” says Anderson. “She wasn’t that well known. One of the responses was ‘Bertha who?’ And ‘no woman can do my job’ was another response reported to her.”

Seven years later, after proving herself once again, Wilson was appointed to the Supreme Court of Canada just weeks before the Charter of Rights and Freedoms was signed in 1982.

When she was first appointed to the Supreme Court, there was no washroom for female judges, recalls Eugene Meehan, chairman of the Supreme Court practice group at Lang Michener LLP in Ottawa, who was the executive legal officer at the SCC while Wilson was on the bench.

“They had to build one,” he says. “So she was a pioneer in many respects, including that one.”

She wrote judgments longhand with a pencil and was legendary for meeting her husband in the court’s garage after work on Fridays, where the couple would load boxes of books into the car for Wilson to use to work on judgments over the weekend, says Meehan, a fellow Scot.

“Beyond North Sea oil, scotch, and porridge, Scotland’s best export was Bertha Wilson,” he says. “She made me, and others, proud to be Scottish, and also proud to be Canadian.”

The years following her  appointment were an exciting time on the bench and Wilson made a mark on Charter jurisprudence.

“Her output was absolutely prodigious,” says Anderson. “Her contribution was huge.”

Perhaps most famously, Wilson wrote R. v. Morgentaler in 1988, the controversial decision that overturned the section of the Criminal Code dealing with abortion. When hate mail came pouring in, Wilson relieved her secretary of the unpleasant task of opening the mail and dealt with it herself, says Anderson.

Never one to back down when a principle was at stake, no matter how unpopular it might make her, Wilson also wrote many dissenting opinions. For instance, in 1990, Wilson wrote the dissenting opinion in McKinney v. The University of Guelph, a case where the majority decided that mandatory retirement for university professors did not violate Charter equality rights.

“Bertha thought that one of the functions of the dissent was to have that benchmark for an evolution of social consensus out there,” says Anderson.

Henry S. Brown, a partner at Gowling Lafleur Henderson LLP in Ottawa, appeared before Wilson on her first chambers motion and dozens of times after.

“It was a real thrill to engage in debate with her because she was genuinely seeking to fill out the case, to find the gaps, to satisfy herself that justice would be done,” he says. “She was very much motivated by doing the right thing.”

Wilson retired from the court in 1991 at 67. And it was her post-retirement work as a commissioner of the Royal Commission on Aboriginal Peoples that Wilson viewed as her most valuable contribution, says Anderson. The resulting 1996 report called for sweeping changes to the relationship between Aboriginal and non-aboriginal people and governments.

During the same time, Wilson was also chairwoman of the Canadian Bar Association’s task force on gender equality in the legal profession, where she was quick to correct errors in the initial conceptualizing of the task force by expanding the scope to include race, disability, and same-sex issues, and fought to add an aboriginal member and a black member to the task force, recalls Daphne Dumont, a former CBA president who was on the task force.

“Bertha had the most amazing ability to, without ego, simply say, ‘Yes, I think that must be an error, let’s change it.’ She was never set in her ways.”

Those on the gender task force would meet in cities across Canada and Wilson would often join them after stints trekking across the country for meetings in remote aboriginal communities.

If the other lawyers were walking to a meeting, Wilson would walk too, despite terrible arthritis.

“She had an enormous amount of physical courage.” says Dumont.

“What a marvelous life,” says Meehan. “She is a powerful flame that has been extinguished, but that powerful flame will jurisprudentially burn for a long time.”

In lieu of flowers, her family requests that donations, if so desired, be made to the Alzheimer’s Society in Ottawa.

A memorial service will be held at 2 p.m. on May 8, at St. Andrew’s Presbyterian Church in downtown Ottawa.

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