“The most liberal-minded and controversial member of the Supreme Court of Canada is stepping down,” said a news story on November 21. Mme. Justice Bertha Wilson, the first woman appointed to the court (in 1982), said she was resigning in order to spend more time with her husband, a retired minister.
The announcement brought a chorus of tributes to her. The Toronto Star praised her in an editorial entitled “A great judge.” James MacPherson, Dean of Ontario’s Osgoode Hall Law School, and Robert Sharpe, Dean of the University of Toronto Law School, described the leading role she had played in taking a consistently liberal vision of the Charter of Rights and helping to mold a body of jurisprudence which has transformed Canadian law.
The one stressed her creativity, imagination, and humanitarianism, the other her intellectual strength and the courage of her convictions.
Christie Jefferson, executive director of the Women’s Legal Education and Action Fund (LEAF), declared that her vocal leadership will be sorely missed, and that she will likely go down in history as one of the greatest Supreme Court justices Canada has had.
A different view
For good reason, defenders of unborn children will take an opposing view. They cannot forget the Morgentaler judgment of January 1988. At that time Mme. Wilson said bluntly that the decision to end a pregnancy was something men could never understand.
She argued that we ought to turn to the recent feminist movement which emphasizes a woman’s right to control her own body, for guidance on the morality of abortion. In this judgment and elsewhere, she made it clear that she believed that a distinctly male perspective has led to legal principles which are not fundamentally sound and which require to be changed. So she wanted to reinterpret Canadian law in terms of the ideology of radical feminism.
In February 1990, REAL Women made a formal complaint to the Canadian Judicial Council asking for Mme. Wilson’s removal from the Supreme Court on the grounds that she “publicly supported the views of feminists, a special interest group, and endorsed their legal analysis and interpretation of Canadian laws.”
The president of the organization at that time, Lettie Morse, declared that those who do not support the feminist position, “cannot enjoy confidence in her impartiality but rather have been put at a grave disadvantage by her bias.”
Defending this view in a letter to the Toronto Star, Mrs. Morse wrote that Mme. Wilson took a feminist perspective which was anti-family and gave judgments based not on law, but on her own personal perspective on life and society.
Gwen Landolt, vice-president of REAL Women and a lawyer as well contended that the presence of Mme. Justice Wilson invalidated the Supreme Court’s claim to legitimacy. The notion that the bench should be a collection of countervailing prejudices rather than a body of men and women dedicated to impartial reason, she claimed, undermines the foundation of the Canadian legal system.
The Judicial Council rejected REAL Women’s appeal to it, but still the objections raised to Mme. Wilson’s legal philosophy possessed a great deal of merit.
Against the praise of the law school deans we should set the comments of the late George Grant on the Morgentaler judgment:
The legal system in its unthinking liberalism simply flounders in the face of those who find meaning in the triumph of the will. “The more the justices quote philosophy or religious tradition,” he wrote (and Mme. Wilson did both), “the less they give the sense they understand what they are dealing with.”
Mme. Wilson was the preeminent example of what Grant called judicial shallowness.
She stretched the meaning of the Charter of Rights to make it seem that the security of the person guaranteed by it implies a right to abortion. She forgot that in our legal tradition, abortion was always a crime, and therefore the security of the unborn child’s person was assumed to be essential.
Security of the person never meant the right of the woman to take the life of her child, born or unborn. Such an action as been always viewed as unnatural, an act in conflict with right reason.
In a little book on the rights of man which he wrote in 1944, the outstanding French philosopher, Jacques Maritain, stated that the true philosophy of the rights of the human person is based upon the idea of natural law. The same natural law which lays down our fundamental duties, and by virtue of which every law is binding, assigns to us our fundamental rights.
An opposing philosophy has tried to base the rights of the human person on the claim that man is subject to no other law than that of his will and his freedom.
In Maritain’s view, the philosophy provides no solid foundation for the rights of the human person; nothing can be founded on an illusion. It compromises and squanders human rights, because it leads people to conceive of themselves as divine, escaping every objective measure, denying every limitation on the claims of the ego. Ultimately, they express a so-called absolute right “to unfold one’s cherished possibilities at the expense of all other beings.”
Mme. Wilson’s so-called right of a woman to have absolute control over her own body implies a right to terminate the life of her unborn child if she finds its continued existence inconvenient – a limitation on the claims of her own ego. As the law school deans emphasized, Mme. Wilson helped bring about a revolution in the understanding of law in Canada.
As Maritain said, in the 1940s, a different kind of intellectual and moral revolution is required of us, “in order to re-establish on the basis of a true philosophy our faith in the dignity of man and in his rights, and in order to rediscover the authentic sources of his faith.”
Let us hope that in retirement Mme. Wilson will begin to see the need of such a philosophy, and to understand something of the true nature of man and of woman.