Working the Dead Beat

by Sandra Martin

  Retirement

  IN 2002 THOMSON, by then in his late seventies, stepped down as head of the Thomson Corporation, the conglomerate he had run for forty years, in favour of his elder son, David. He kept his position as chair of Woodbridge, the family holding company, and continued to work with Teitelbaum on the expansion of the AGO and the massive gift he was planning to make to the art gallery. He also strategically expanded his collection, acquiring Paul Kane’s Scene in the Northwest: Portrait of John Henry Lefroy and Rubens’s Massacre of the Innocents.

  Even though he was retired, he stuck to his routine of heading to the office on weekdays. That’s what he did on June 12, an ordinary early summer morning in 2006. He completed his exercise routine at his downtown club and then, along with one of his beloved dogs, took the elevator to the fifth floor of the Thomson Building, at Queen and Bay Streets in Toronto. He went into his office, which looks west towards Osgoode Hall and north over Finnish architect Viljo Revell’s mushroom-shaped city hall, and sat, as usual, at his modern glass desk. Perhaps he fondled a few of the small ivory carvings that rested there, glanced at a picture of himself on a see-saw with one of his granddaughters, or looked around the room at some of his favourite paintings hanging on the walls — an Emily Carr, a small Lawren Harris, the J. E. H. MacDonald that he had tried to give to his friend John Band, a large William Kurelek, and a Jean-Paul Riopelle.

  Then he got up and headed towards the hall to speak to his assistant. On the way he suffered a heart attack and collapsed. It was about 7:45 a.m. In a year when he had lost two of his closest friends — Steve Stavro, former owner of Knob Hill Farms and the Toronto Maple Leafs, and Band, his art-collecting pal — Thomson died as he had lived, quietly and without fuss. He was eighty-two.

  Bertha Wilson

  Lawyer and Supreme Court Judge

  September 18, 1923 – April 28, 2007

  HAD BERTHA WILSON meekly followed the patriarchal advice handed down to her when she inquired about doing a law degree in the mid-1950s, the Canadian judicial system might have looked very different today. “Madam, we have no room here for dilettantes. Why don’t you just go home and take up crocheting,” Horace E. Read, the dean of the law school at Dalhousie University barked at her when the minister’s wife and former schoolteacher appeared before him, seeking admission to the school in the fall of 1954. He finally relented, according to Madam Justice Wilson, who recounted the story in a rare interview with journalist Sandra Gwyn in Saturday Night magazine in 1985. “From my very first day of classes, I knew the law was my thing,” she said. “I just soaked it up like a sponge.”

  Wilson was the first woman appointed a judge of the Ontario Court of Appeal, in 1975, and the first woman to sit on the Supreme Court of Canada. Like most professions, the law was slow to welcome women into its ranks. There were no female barristers in Ontario until Clara Brett Martin was called to the bar in 1897, three decades after Confederation. By the time Wilson was named a Queen’s Counsel, almost two centuries later, there were still fewer than three hundred female lawyers in the province; it would be another decade before the Law Society of Upper Canada, the self-governing body for lawyers in Ontario, elected Laura Legge as its first female treasurer (head), in 1983. A new century would have to dawn before one of Wilson’s younger colleagues, Beverley McLachlin, became the first woman appointed Chief Justice of the Supreme Court.

  In Wilson’s day, women had to find not only their own bathrooms but their own niches within corporate firms. She did it by becoming a lawyer’s lawyer and establishing a sub-specialty in estate planning, especially in drawing up wills for the wives of wealthy clients at Osler, Hoskin & Harcourt in Toronto. Her forte was research, preparing legal documents, analyzing judgements and statutes, and setting up a nimble information-retrieval system in the days before Quicklaw and LexisNexis. Her diligence and organizing skills enabled her to solve tangled legal questions so adroitly that her billable hours diminished alarmingly, much to the distress of some senior partners.

  Her ascendancy as a jurist owes something to circumstance: she had an enlightened husband and no children. John Wilson did the shopping and the cooking and he was proud of his wife’s intellect and her ambition. The intensely private Bertha Wilson never revealed if her lack of offspring was a deliberate choice or a personal sorrow, but it gave her the opportunity to pursue legal studies and to work diligently at a career outside the home.

  Timing also played an auspicious role for Wilson. She was appointed to the Ontario Court of Appeal in 1975 in a dynamic era of family law reform. Marriage and parenting were being redefined as economic partnerships in which both parties had rights as well as responsibilities. Patriarchal and prejudicial relationships in the workplace and in the home, which had been immutable for centuries, were suddenly open to interpretations based on new readings of legal arguments and current definitions of social, sexual, and racial discrimination.

  The same was true of her appointment to the Supreme Court of Canada. She was sworn in on March 30, 1982, less than three weeks before the Queen arrived in Canada to sign into law the Charter of Rights and Freedoms. Consequently, her period on the bench was a pivotal time during which the definitions of individual and collective rights and freedoms were tested, from a woman’s right to abortion to spousal battering as a defence for murder to a refugee claimant’s right to be heard.

  Her stance as a triple outsider — as a woman, an immigrant, and the child of a lower-middle-class family — gave her a different perspective from many of her legally and socially connected male colleagues. An independent thinker and a socialist, she was highly principled, with a ramrod integrity. “It’s her sense and her sensibility,” Gwyn explained, “a kind of practical sensitivity tinged with Scottish asperity, enriched but by no means defined by her genes.”

  Wilson had the courage to avoid consensus and to speak her mind. Although she didn’t consider herself a feminist, she believed in equality and fairness. Known as the “Great Dissenter,” she was a prolific writer who wielded an eloquent pen and frequently took minority positions on the Court when it would have been much easier to conform to the views expressed by colleagues. “Bertha was very often out in left field” and “she was stubborn as a mule,” her fellow judge Antonio Lamer told Globe and Mail reporter Kirk Makin in 2002.

  “It was not just her brilliant mind, which was remarkable in its rigour, it was the serendipitous presence of Bertha Wilson and Brian Dickson on the Supreme Court of Canada,” Madam Justice Rosalie Abella said after Wilson’s death on April 28, 2007. “I call them the Fred and Ginger of the Charter. They gave it the muscular interpretation that launched the Charter in its first decade,” especially in contrast to the legalistically anemic Bill of Rights that preceded it. Speaking of the jurisprudence that Judge Wilson developed, Abella said that her commitment to fairness was “unshakeable” and her legacy was “profound” in many areas.

  That’s not to suggest that Wilson’s appointment to the bench by Prime Minister Pierre Trudeau was met with enthusiasm or even equanimity. “The ‘establishment’ in the Ontario legal community was shameless in making the case that she wasn’t ‘ready,’” Eddie Goldenberg, then special constitutional advisor to justice minister Jean Chrétien, wrote in his memoir The Way It Works: Inside Ottawa. “Even Chief Justice Bora Laskin, who had his own preferred candidate at the time, made that argument very vociferously to Prime Minister Trudeau.”

  From the beginning, it was the study, not the practice of law that intrigued Wilson. Even so, she brought a quotidian rather than an abstract focus to legal issues that enabled her to see the practical consequences of legal decisions. Her logical mind would have made her stand out at any time, but it made her especially significant in an era of landmark rulings that reshaped Canadian society. She led the way for all Canadians — and that included women and First Nations — to be equal in private and professional life.

  BERTHA WILSON WAS the only d
aughter and the youngest of Archibald and Christina (née Noble) Wernham’s three children. She was born on September 18, 1923, in Kirkcaldy, Scotland, an industrial town on the north side of the Firth of Forth. Although her patriotic parents, who had served as a soldier and a nurse in the First World War, never finished high school, they valued education and had high academic expectations for their children. Her father, a commercial traveller for a stationery firm, was rarely home during the week, so her ambitious mother was the prime disciplinarian.

  The Wernhams moved to Aberdeen when Bertha was three. After primary school she went to Aberdeen Central Secondary School and then followed her two older brothers, Archibald and James, to the University of Aberdeen. After graduating with a master’s degree in 1944, she went to the local teachers’ training college, earning her certificate in 1945. Despite her mother’s objections, she married John Wilson, a Presbyterian minister, a pacifist, a socialist, and a close friend of her brother Jim, on December 14, 1945. She was twenty-one; he was twenty-five.

  After four years of ministering to the community of Macduff, a fishing village on the northern coast of Aberdeenshire, the Wilsons both wanted to escape the ingrained attitudes of their parishioners. Canada, with its postwar opportunities, beckoned, not least because her brother Jim and his family had settled there. In 1949 the Wilsons sailed across the Atlantic on a converted troop carrier to take up a “call” from a Presbyterian congregation in Renfrew, in the Ottawa Valley.

  Yet more waves of change were about to buffet them. John Wilson had come to regret his vocal pacifism during the Second World War and his refusal to serve in the Armed Forces. After forging a close friendship with the Presbyterian Chaplain of the Fleet for the Royal Canadian Navy, Wilson agreed to enlist late in 1951 to serve as an RCN chaplain in the Korean War. His six-year stint meant separation for the Wilsons and an opportunity for her to move to Ottawa, where she found a job working for two dentists — the first time she had worked independently of her husband’s vocation — and then to settle in Halifax, her husband’s home base, where once again she had no official duties related to his work.

  Having convinced Dean Horace Read that she was not a dilettante, Wilson, along with five other female students, enrolled in first-year law in 1954. He was so pleased with her response to an exam question at the end of the first term that he read it aloud, adding the comment “I think I’ll make a lawyer of you yet,” according to Ellen Anderson’s biography, Judging Bertha Wilson: Law as Large as Life.

  Wilson graduated three years later, ranking seventh out of fifty-eight students, tying for the Smith Shield in legal argument, earning the respect of her professors for the intensity of her scholarly curiosity, and winning a graduate scholarship to Harvard. Once again the crusty Read dissuaded her. “There will never be women academics teaching in law schools, not in your day,” he insisted.

  Despite her stellar grades, Wilson’s age and the paucity of her local contacts made it difficult for her to win an articling position. She finally found a place with a local criminal lawyer after her corporate law professor interceded on her behalf. When her husband’s naval appointment expired in 1958, the couple, who by then had left the Presbyterian Church for the more liberal United Church, moved to Toronto. That’s where John Wilson had accepted, almost on a whim, a job as an interdenominational fundraiser.

  Wilson, who had been called to the Nova Scotia bar but had not yet practised as a full-fledged lawyer, had to article again in Ontario and write the examinations for bar admission. First, though, she had to find a firm willing to take her on as a student. After looking up law firms in the Yellow Pages, she cold-called Osler, Hoskin & Harcourt. They grudgingly took her on after a stern admonishment that there was no possibility she would be hired after her call to the bar. She was thirty-five, a decade older than most articling students.

  Once again, intelligence, hard work, and superior organizing abilities won the day. By the time she was called to the bar in May 1959, she had become indispensible for the depth and breadth of her legal research and her cross-referencing of client files and government statutes. Osler’s offered her a permanent position, the first female lawyer they had ever hired. She was made a partner in 1968 and a Queen’s Counsel in 1973, but she never became a senior partner or a member of the management committee.

  Just before Christmas of 1975, Ron Basford, then the Liberal minister of justice, surprised Wilson — and many of her colleagues — by inviting her to become the first woman justice on the Ontario Court of Appeal. At her swearing in a month later, she said: “I hope you will forgive me if I confess an element of unreality,” going on to explain that she had never argued a case in court or “practised law in the way most solicitors practise.” She was not apologizing for her lack of litigation experience. On the contrary, she pointed out that the nature of her experience had helped her to remember that “people and the law are inextricably intertwined, and that the role of the profession is essentially to serve the needs of the people.” True to her word, she made a fact-finding tour of Ontario prisons so that she could see for herself “exactly where we were sending people.”

  In an era of huge advances in family law, her rulings on the Court of Appeal soon attracted the attention of lawyers and judges across the country, especially those who advanced the rights of women. She never pictured herself as a feminist lawyer and shied away from minority groups attempting to cling to her legal gown. Nevertheless, she ruled in favour of the divorced common-­law wife of a beekeeper, arguing that she was entitled to a half-share in the business they had built up and run together; she wrote a minority opinion in favour of a girl who was denied a place on a boys’ softball team simply because she was a girl; she found in favour of an East Indian mathematician who claimed she had been discriminated against in job interviews because of her race and wanted to sue in a civil action and claim damages. In all of these cases Wilson found intriguing and innovative legal arguments, no doubt the product of all those years in the research department of Osler’s.

  From the beginning of her term on the Supreme Court of Canada in 1982, she wielded a persuasive pen. When the Court widened the legal meaning of self-defence, Wilson was the author of the court’s unanimous decision restoring the jury acquittal of a battered woman who had shot her boyfriend in the back of the head after she had been subjected to years of physical abuse. In rejecting out of hand a man’s historically sanctioned right to own and discipline a woman, she wrote: “A man’s home may be his castle, but it is also a woman’s home — even if it seems more like a prison in the circumstances.”

  In the case of Dr. Henry Morgentaler, while other judges ruled on procedural grounds, she wrote in favour of a woman’s constitutional right to choose to have an abortion. “It is not just a medical decision. 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 to that of the state.” In her written opinion in Regina v. Singh, a case in which she argued that refugee claimants had the right to oral hearings, she wrote: “The guarantees of the Charter would be illusory if they could be ignored because it was administratively inconvenient.” The ramifications of that decision, which have led to its own inconveniences in appeals and administrative costs, are still hotly debated.

  Wilson retired from the Supreme Court on January 4, 1991, at the age of sixty-seven, eight years before the mandatory retirement age of seventy-five. She cited “diminished energy” as her main reason and said she was looking forward to living a more normal domestic life. In fact she had suffered from high blood pressure for thirty years and had been plagued with arthritis and a series of other health issues. There were other reasons that weren’t publicized at the time. Her great colleague Brian Dickson had retired six months earlier, and she was troubled by what she later described as the cliquish behaviour of some of her male colleagues. “People would spend long periods in each other’s rooms, arguing about changes
and amendments, and so on and so forth,” she told her biographer Ellen Anderson. “You might not know anything about this, of course . . . So there was never any kind of opportunity to explain why you didn’t think that was a sound addition, or a sound subtraction. The first thing you knew was that a group had now formed.”

  Wilson had been an assiduous judge, having signed her name to more than 160 decisions, including at least fifty rulings under the Charter, and delivered some sixty-odd major speeches. The Royal Society of Canada elected her a fellow in 1991, she was appointed a Companion of the Order of Canada the following year, and she continued to add to her collection of honorary degrees — nearly fifty in total.

  She may have stepped down from the Supreme Court, but she was certainly not ready “to sip Campari on the Riviera,” as she herself ruefully admitted. She had become enmeshed in two contentious and unwieldy projects, one within the legal profession and the other without. She agreed to chair the Canadian Bar Association’s Task Force on Women in the Legal Profession. The report, which was called Touchstones, let the legal profession know that women faced the same inequities before the bar as they did in other professions.

  Many more women were graduating from law schools, but alarming numbers were leaving the profession. Conclusions about discrimination both before the bar and on the bench and recommendations that changes be made in the brutal system of billable hours to accommodate female lawyers with young children caused a furor within the profession. The stress of raising funds and staffing the commission, researching and writing the report, and then dealing with the acrimonious backlash caused Wilson considerable anguish.