| Reviews / Comptes Rendus | Labour/Le Travail, 51

Reviews / Comptes Rendus

Ellen Anderson, Judging Bertha Wilson: Law As Large As Life (Toronto: University of Toronto Press, 2001)

ELLEN ANDERSON has produced the first biography of Canada's first woman Supreme Court judge, Bertha (Wernham) Wilson. This is a book that is long overdue, given that Madam Justice Wilson's historic stature as a jurist is arguably unparalleled in Canada. The book is described on the dust-jacket as an "authorized, intellectual biography" drawing upon interviews with Wilson, her husband, friends, relatives, and colleagues. It chronicles many fascinating aspects of Bertha Wilson's life: her childhood and adolescence in Scotland; her study of philosophy at the University of Aberdeen; her courtship with and marriage to John Wilson; her role as the wife of a Church of Scotland minister; migration to Canada; employment as a dental receptionist; her law student days at Dalhousie; articling with Halifax criminal lawyer F.W. Bissett; a legal career with the corporate-commercial Osler law firm in Toronto; her elevation as the first woman on the Ontario Court of Appeal in 1976; her appointment to the Supreme Court in 1982; her work with the Canadian Bar Association Task Force on Gender Equality; and her contribution to the Royal Commission on Aboriginal Issues.	1
In the main, however, this is a book that dissects Wilson's judicial decisions and published writings about law. It emerged out of Anderson's LL.B. research on Wilson's judgments, her LL.M. thesis on the "historic import of Scottish Enlightenment common-sense philosophies into Canadian universities and their effects on Canadian law and culture," and her doctoral thesis that formed the foundation of the book. She detects a series of influences on Wilson's juridical understanding: academic studies of philosophy, an "unconscious process of acculturation in the doctrines of the Scottish Enlightenment," the influence of the "Church of Scotland ethos," and a "distinctively principled and moral" postmodernism. The synthesis of this rather complex mixture is well-exemplified in the following sentence:	2
Wilson's provisional process for weighing rights as it related to her highly particularized definition of rights is traceable back to Aristotelian phronesis, the subtle and shifting integration of practical and philosophic wisdoms which we saw re-emerging in David Hume's phenomenological explorations of the fragmented self, linked in term to Hume's cheerful acceptance of the indeterminate epistemology which is all that such necessarily fragmented selves can achieve; it is akin to the writings of the best of the contemporary postmodern theorists who sustain the liberal heritage of meaning-seeking without demanding that meanings be unitary or finally fixed. (267)
Anderson weaves this intricate theoretical framework through more than two hundred pages of legal analysis of the criminal, commercial, family, tort, contract, trust, tax, administrative, international, evidence, employment, property, human rights, immigration, Aboriginal, and constitutional cases that Wilson judged over her career. Graduate students and legally-trained individuals well versed in Supreme Court jurisprudence will find this challenging and interesting.	3
Many of the potential readers of a Bertha Wilson biography will be feminists, gays and lesbians, Aboriginals, and others who support the various movements to achieve greater equality for disadvantaged groups. For us, her work at the Supreme Court of Canada represented an enormous contribution. Madam Justice Wilson came to symbolize the finest in humanistic, principled, and creative judging. Her advancement of legal thinking about equality and discrimination constituted a life contribution that outstripped most of the jurists who had gone before. For litigants and litigators seeking access to a hitherto unreceptive, closed legal system, she opened vistas of opportunity, imagination, and hope.	4
Some of the readers who turn to this biography to learn more about what shaped such an extraordinary judge and her awe-inspiring career, may come away saddened that there is not more focus on this. Nor is there much analysis of the multiple gender barriers that stood in Wilson's way. To be certain, Anderson lists many. Wilson experienced social exclusion as one of Dalhousie's early women law students, none of whom were welcome in the university common room or the local fishermen's tavern where the other students lingered. Dalhousie Law Dean Horace Read told Wilson she should "just go home and take up crocheting," and actively discouraged her from accepting a scholarship to do graduate legal studies at Harvard because there would "never be women academics teaching in law schools." It was difficult for women to find articles, and when she became the first female hired at Osler's, she was warned that she could not stay permanently. She did stay, but Osler's made her wait for nine years before bestowing partnership, in a milieu in which males were often given partnership in five. At first, she was not allowed to travel with male lawyers because of the potential for gossip. A woman who would have made a first-rate courtroom lawyer, she was not allowed to do litigation. Despite sixteen years at the firm, she was never made senior partner or appointed to the senior management committee. Her appointment to the courts sparked serious resistance from several judges and she found herself isolated from informal judicial discussions in ways that marginalized her influence. Fanatic anti-choice proponents deluged Wilson with hostile letters during her constitutional rulings on abortion, with comments so hateful that her staff at the court were too frightened to open the mail. Anti-feminist responses to the Canadian Bar Association (CBA) Task Force were virulent and directed at Wilson personally, causing her great anxiety and concern. (38–49, 57–64, 87, 94, 128, 150–64, and 346–50)	5
Anderson mentions these difficulties, but repeatedly discounts them. She stresses that Wilson "did not nurture any feminist resentments," that she had "no desire to assert herself as equal in the sense of being identical with the more prominent male lawyers," and that she was "prepared to accommodate ... and learn from" the male judges who spurned her. In fact, she accepts that Wilson's career "did not illustrate persistent or systemic discrimination," and that it was not until the backlash against the CBA Task Force on Gender Equality that Wilson felt "her first unequivocal and deeply personal experience of gender discrimination." (57, 64, 94, and 349) This may have been Wilson's own assessment, and it is a perspective that was common for women lawyers and judges of her generation to assume. What is odd is that Anderson herself does not go into a deeper analysis of whether this was an accurate reflection of what Wilson experienced, what impact gender discrimination actually had on her life and career, and what we can learn from Wilson's strategies of responding to male exclusion and hostility.	6
Feminists will probably be even more saddened at Anderson's consistently negative attitude towards feminism. The feminism that I and many others aspire to bears little resemblance to Anderson's depiction of it. Anderson finds feminism and feminists to be "confrontational" and "fervent." She describes feminism as given to "simple-minded dichotomies," "self-righteous certainty," and "feminist rant." (xvi, 197, 223, 230, and 231) Feminists are undoubtedly capable of all these things, but the philosophy and the movement that bears its name are profoundly richer than this. It seems, at least to me, a great shame that the woman who chose to write Bertha Wilson's biography believes that feminism is properly characterized in this manner.	7
And it seems possible that Anderson's negative perspective on feminism has coloured her Wilson biography. She repeatedly recounts that Wilson does not claim to be a feminist. She makes the point on the second page of the preface, and no less than three additional times in the text, noting that Wilson "declines to identify herself as a feminist," does "not consider herself a feminist," was "avowedly not a feminist," and finally that she "most emphatically does not consider herself a feminist." (xiv, 135–6, and 197) Interestingly, none of these statements is in direct quotations, although Madam Justice Wilson writes in the foreward to the book that she is indebted to the author for becoming a "philosophical alter ego" who has presented a true picture of her life; so presumably she took no issue with this characterization. There have been others, however, who have recorded Madam Justice Wilson's politics slightly differently. Sandra Gwyn, a reporter for Saturday Night, has written that Madam Justice Wilson considered herself "a moderate feminist" while on the court. ("Sense and Sensibility," July 1985, 13 and 19) And my assessment of her work with the CBA Task Force on Gender Equality suggests that there were certainly times when Wilson spoke as a feminist and for the feminist movement.	8
If Anderson is indeed correct, and Wilson is "avowedly not a feminist," that is perhaps the saddest of all. How misconceived the movement that has contributed so much to the advancement of equality must be if women such as Bertha Wilson seek to separate themselves from it. The female judge who wrote so distinctly as a woman when she proclaimed the constitutional right to abortion, who brought to Canadian law a distinctly gendered sensitivity to woman-battering, who tried (and failed) to establish a new tort of discrimination, is someone whom I would have hoped would claim the label of feminism with heart and soul.	9
Constance Backhouse University of Ottawa

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