A controversial, feminist Supreme Court judge credited with being a pioneer in “interpreting” the Charter of Rights and Freedoms, “forever” changing our society and framing abortion solely in terms of a woman’s “constitutional right to choose” has died at the age of 83.
Bertha Wilson was the first woman appointed to the Supreme Court of Canada and came to the bench just weeks before the notorious Charter was signed into law in 1982. She became its most eloquent champion, invoking it often to bestow new rights on women and minorities.
“I am an unabashed and enthusiastic supporter of the Charter,” she once declared. “Our Charter is, and must continue to be, a vital force in moulding the lives of Canadians.”
“She was absolutely foundational to the emergence of Canadian ‘Charter culture,’” University of Toronto law professor Brenda Cossman, who has served on the board of directors of the homosexual publisher Pink Triangle Press, told the Globe and Mail newspaper. “She was an incredibly influential judge.”
REAL Women of Canada in 1990 filed a complaint against Wilson with the Canadian Judicial Council, itself made up of judges, over what the organization perceived as her bias in favour of vocal feminists. Not surprisingly, given its lack of objectivity and perhaps its own affinity with those same feminists, the council dismissed the complaint.
Her ruling in the 1988 Morgentaler case, which struck abortion from the Criminal Code, is considered her most infamous. Abortion “is not just a medical decision,” she wrote. “It is a profound social and ethical one as well. It asserts that the woman’s capacity to reproduce is to be subject not to her control, but that of the state.”
She added: “The decision whether to terminate a pregnancy is essentially a moral decision, a matter of conscience … The question is: whose conscience? Is the conscience of the woman to be paramount or the conscience of the state? I believe … that in a free and democratic society, it must be the conscience of the individual.”
James Stribopoulos, a professor of law at York University, observes that while the majority of the Supreme Court judges invalidated the abortion law on procedural grounds, Wilson articulated a substantive basis for doing so. She suggested that “liberty” under Section 7 of the Charter afforded to the individual a degree of personal autonomy over important decisions intimately affecting his or her private life.
In Wilson’s eyes, a woman’s decision to terminate her pregnancy fell within this class of protected decisions. And, for closely related reasons, Wilson also found the abortion prohibition ran afoul of “security of the person.”
A restriction on abortion “is a direct interference with (a woman’s) physical ‘person’ as well,” wrote Wilson. “She is truly being treated as a means – a means to an end which she does not desire, but over which she has no control. She is the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life. Can there be anything that comports less with human dignity and self-respect? How can a woman in this position have any sense of security with respect to her person? I believe that Section 251 of the Criminal Code deprives the pregnant woman of her right to security of the person, as well as her right to liberty.”
In illustrating the circular reasoning that holds sway within the judicial realm, retired Supreme Court judge Frank Iacobucci, who replaced Wilson when she retired in 1991, praised such abortion philosophizing as speaking “eloquently to an incredibly difficult issue.”
However, the Morgentaler decision and the Charter in general were assailed by F.L. Morton of the University of Calgary’s Department of Political Science. He said the case epitomized the phenomenon of the “politics of rights writ large.”
“Under the ‘benign’ shade of the ‘living tree’ (the Constitution), every political group … can claim that its objectives are, in fact, protected by some ‘penumbra’ of the Constitution,” he wrote in the book A Time to Choose Life. “The various rights enumerated in the Charter become ‘political resources of unknown value in the hands of those who want to alter the course of public policy.’”
Morton’s analysis of Supreme Court judges’ voting patterns led him to conclude that the judicial philosophy of a judge was more likely to determine the outcome of a case than the actual text of the Charter.
Law professors Robert E. Hawkins and Robert Martin, in a lengthy article in the McGill Law Journal – “Democracy, Judging and Bertha Wilson” – excoriated Wilson personally for failing “to respect the limits which should constrain judicial review in a democratic society.” They also blasted her for using a contextual approach to law that led decisions to be divorced from principle, instead to be based solely on a subjective theory of interpretation.
Ironically, this offended the liberal notion of equality, they said. In summation, her entire approach to law was inappropriate and an affront to liberal democracy, concluded Hawkins and Martin.
According to Toronto legal scholar Peter Hogg, quoted in the Toronto Star, Wilson helped her colleagues on the Supreme Court understand a “feminist critique” of equality law, which posited that seemingly neutral laws often operate to the disadvantage of women and minorities. This thinking played itself out in cases such as her upholding of the 1990 acquittal of a woman who shot her common-law husband in the back of the head.
In another context, Wilson, as chair of the Canadian Bar Association’s task force on gender equality in the legal profession, expanded the force’s scope to include “same-sex issues.”