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Reviewed by:
  • Justice Bertha Wilson – One Woman’s Difference
  • Patricia McMahon (bio)
Kim Brooks, editor. Justice Bertha Wilson – One Woman’s Difference. UBC Press. 2009. xii, 344. $85.00, $32.95

Whether Bertha Wilson was a ‘feminist judge’ is a question that crops up throughout this collection of sixteen essays on the first female justice of the Supreme Court of Canada. What this engaging series of articles makes clear is that a definitive answer to that question is irrelevant to her ultimate legacy. The three sections – ‘Foundations,’ ‘Controversy,’ and “Reflections’ – address a wide range of subjects, mixing the personal with the theoretical while emphasizing the contextual. This collection addresses many subjects rarely examined in connection with Justice Wilson. All provide an apt tribute to a woman who had a remarkable career and made a profound difference in the lives of so many in the process.

‘Foundations’ explores the context of Bertha Wilson’s early career along with some of her less well-known private law judgments. Although renowned for her Charter jurisprudence, Justice Wilson was an experienced common law lawyer prior to her appointment to the bench, and these chapters offer a valuable contribution in their attention to areas of Wilson’s jurisprudence rarely studied. Angela Fernandez and Beatrice Tice discuss Wilson’s seventeen years in private practice at Osler, Hoskin, and Harcourt prior to her appointment to the Court of Appeal for Ontario. They trace her experience in the exclusively male domain of a large Toronto law firm from 1958 to 1975, focusing on her creation of the firm’s research department – the first of its kind – which helped her develop a broad practical expertise. This background helps to illuminate her approach to the law and judging more generally. Other chapters in this section delve into substantive private law issues. Larissa Katz offers a novel discussion of Wilson’s approach to property law, especially adverse possession. Janis Sarra, Moira McConnell, and Shannon Kathleen O’Byrne provide insightful chapters dealing with Wilson’s approach to contract and commercial law. Each underscores Wilson’s creativity and contextual thinking with respect to private law issues, especially a concern about fairness that accords with the principles of the common law and equity. [End Page 707]

‘Controversy’ offers fresh takes on some of Justice Wilson’s contentious decisions, many of which remain relevant to contemporary debates. Janine Benedet tackles the Prostitution Reference and how Wilson’s reasons grappled with competing paradigms. Elizabeth Adjin-Tettey’s chapter examines how Wilson’s Court of Appeal decision, Bhoudria, still offers potential for the development of a tort of discrimination. Isabel Grant and Debra Parkes assess and contextualize Wilson’s unique contributions to the development of criminal law defences. More critically, Gillian Calder asks difficult and unsettling questions about the present-day implications of Wilson’s approach to aboriginal law and child custody. Susan Boyd offers a contextualized view of Wilson’s child custody decisions and the way in which they reflected competing societal ideals and expectations.

Finally, the chapters in ‘Reflections’ offer assessments of Justice Wilson’s contributions and legacy that are more personal. The portrait is of a judge who believed in the possibilities of the common law and understood that change would almost certainly occur incrementally in that context. Marie-Claire Belleau, Rebecca Johnson, and Christina Vinters discuss the ‘creativity’ of Wilson’s judging and highlight the importance she placed on the reasoning that underpinned the result and her remarkable productivity on the bench. Others deal explicitly with Wilson’s dedication to equality beyond her judicial decision-making. Melina Buckley addresses Wilson’s leadership at the helm of the Canadian Bar Association’s task force on equality within the profession, the resulting report entitled Touchstones for Change, and the lessons she learned from the experience (which appear to have been as profound – if not more so – than those she gained from her own experiences). Similarly, Rosemary Cairns Way and T. Brettel Dawson detail Wilson’s extensive contributions to the judicial education programs in Canada that were designed to help judges understand context and equality in the post-Charter era. Lorna Turnbull movingly and candidly details the power of firsts – the role Wilson played as an...

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