Madame Justice

Bertha Wilson, the first woman to serve on Canada’s Supreme Court, has died.

OTTAWA, April 30, 2007 – The Supreme Court of Canada issued the following press release today:
The Honourable Bertha Wilson, formerly a justice of the Supreme Court of Canada, passed away in Ottawa on April 28, 2007 after a prolonged illness. Justice Wilson attended the University of Aberdeen, Scotland, and graduated with an M.A. in 1944. She continued her education at the Training College for Teachers in Aberdeen, obtaining her diploma in 1945. She married the Reverend John Wilson in December 1945 and they emigrated to Canada in 1949. In 1955, Bertha Wilson enrolled at Dalhousie University to study law, and in 1957 she completed her LL.B. and was called to the bar of Nova Scotia. In 1959 she was called to the bar of Ontario. She practised law in Toronto with Osler, Hoskin & Harcourt for 17 years.

Bertha Wilson broke ground in 1975 as the first woman appointed to the Court of Appeal for Ontario, and again in 1982 when she became the first woman appointed to the Supreme Court of Canada. She retired from the Court in 1991.

One of Wilson’s most significant opinions was her concurrence in 1988’s* R. v. Morgantaler, which decriminalized abortion in Canada. Calgary native Le Mew has written several posts about the influence that R. v. Morgantaler has had on his pro-choice thinking (not to mention his academic specialty, countermobilization, in particular relating to abortion politics):

My direct interest in the abortion issue is easily traced. The first court decision I remember hearing about and discussing was R. v. Morgentaler, the 1988 decision of the Supreme Court of Canada that ruled Canada’s federal abortion legislation unconstitutional. I gave a speech defending it at that year’s persuasive speech at my high school, and my interest in the subject has never really waned. (One can probably also trace my eventual decision to become a scholar of law and courts back to that decision too, although I would have never dreamed it at the time.) Morgentaler is worthy of examination by American supporters of reproductive freedom, because it addresses some issues that its American counterpart (with the partial exception of William O. Douglas’s short, brilliant concurrence in Doe v. Bolton) doesn’t. While I strongly believe that Roe v. Wade was correctly decided (1, 2, 3), like almost everybody I find Blackmun’s opinion for the Court deficient in many respects. Morgentaler is not the perfect opinion, but is does a much better job with similar legal materials.

Scott’s tribute is here.


* I continue to be surprised that it took Canada until 1988 to decriminalize abortion, particularly in light of the liberality of its current law, which not only allows abortion on demand, but has the government pay for it.

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24 comments for “Madame Justice

  1. May 3, 2007 at 1:57 am

    * I continue to be surprised that it took Canada until 1988 to decriminalize abortion, particularly in light of the liberality of its current law, which not only allows abortion on demand, but has the government pay for it.

    The law itself may be liberal, but so is its application. There are still huge problems here with respect to access.

  2. Elinor
    May 3, 2007 at 3:56 am

    I love Wilson’s concurrence in the Morgentaler judgment. It is a wonderful piece of feminist writing. Apparently she had some offensively conservative moments in her judicial career, but I love that concurrence.

    There are still huge problems here with respect to access.

    Yup, because even though provinces don’t have the right to make criminal law, they control the provincial health insurance plans and can make all sorts of marvellously screwy decisions about which abortions they will refuse to fund, claim it has to do with the budget, and so far nobody has been able to stop them. (A challenge is apparently going forward in New Brunswick, one of the worst Canadian provinces for abortion access. Last I checked, NB also doesn’t force anti-choice doctors to inform patients of their beliefs or refer those patients to pro-choice doctors. If you live in the wrong part of that province you might find yourself unable to get birth control pills, let alone an abortion.)

    Canada has government-funded abortion on demand — if you live in a large city. But the SCC decision is still great.

  3. char
    May 3, 2007 at 6:45 am

    in my understanding – as a canadian involved in reproductive rights – canada does not have an abortion law at all. The 1988 ruling struck down the old abortion law (requiring, among other things, a board of doctors to approve the abortion for reasons regarding the health of the mother, generally) and the law was never replaced. Abortion in Canada is currently regulated as any other medical procedure. As such, it is inconsistently accessible and paid for across the country.

  4. May 3, 2007 at 8:39 am

    The history is slightly complicated. Abortion was decriminalized in 1969, but there was a requirement that an abortion be approved by a hospital committee. That requirement was what was struck down in 1988.

  5. Betsy
    May 3, 2007 at 10:05 am

    Ok, does it make me totally evil that the first thing I thought upon seeing that picture was, “It’s Mrs. Claus!”

    Probably. Oh well. May she rest in peace – sounds like she was a good egg.

  6. Katy
    May 3, 2007 at 10:09 am

    To be fair our country didn’t get the Charter of Rights and Freedoms ’til 1982 and Trudeau brought the Constitution home in that same year with the Constitution Act of 1982, so we weren’t really too separate from Britain ’til then. In that light, we moved pretty quickly on the abortion decriminalization front! Go team Canada!

  7. Hawise
    May 3, 2007 at 10:52 am

    You can’t really change a Consitution or laws pertaining to it until you actually have control over it.

  8. Bertson
    May 3, 2007 at 11:19 am

    char and Pithlord are right. After the law was struck down in Morgentaler, the Mulroney government tried to bring in a new abortion law, but it failed by one vote in the Senate after Conservative Senator Pat Carney voted against it, in probably the only time in living memory the Canadian Senate has been relevant. Since then no one’s been willing to touch the issue, so it’s been left unregulated.

    RIP Madame Justice.

  9. wolfa
    May 3, 2007 at 11:46 am

    So, is Quebec now going to fund clinic abortions, or just keep losing court cases and paying out money to women who have abortions in clinics? I never saw this discussed when the lawsuit’s results were in.

    I think PEI beats out NB for worst access.

  10. Bird
    May 3, 2007 at 12:58 pm

    I was fortunate with my experience (I was in Manitoba at the time). No hassles to get a referral from a GP, government funded, and done by a wonderful and compassionate OB/GYN in a caring environment at a women’s hospital. It was the best experience I think one could have under the circumstances.

    Here in Alberta, the so-cons in our provincial government like to try and agitate for cutting funding based on “budget,” but that’s pretty hard to prove in the wealthiest province per capita in the country. There’s good access here (up to 20 weeks), but the best is probably in Ontario (funded up to 24 weeks). PEI currently is the worst—there are no providers in the province and women must have a referral to have access to services in a hospital. There’s a good reference chart for Canada at

  11. May 3, 2007 at 1:30 pm


    I hate to be a constitutional pedant (OK, I lie — I love to be a pedant), but Canada was fully independent from Britain by 1931. It’s just that no one could agree on an amending formula at that time. (In fact, Quebec still didn’t agree in 1981-2, causing no end of subsequent trouble.)

  12. Bird
    May 3, 2007 at 2:33 pm

    Pithlord, yes and no. We became mostly autonomous in 1931 with the Statute of Westminster. But, for example, our highest court of appeal was still the privy council in Britain until 1949. And, of course, we didn’t have the power to change our Constitution independently until after the repatriation (delayed in part because of problems with Québec). The passage of the Canada Act, 1982 in British parliament finally transferred legislative and constitutional authority fully into Canadian hands.

    Technically, we’re still not completely independent, as the Queen’s assent is still required for the passage of any legislation, but the chances of the British monarch interfering are slim, particularly because Canadians would be willing to indulge in a little revolution-making at that point.

    Oh, oh, can we talk about the Charter next? It’s my favorite!

  13. twf
    May 3, 2007 at 3:14 pm

    Yeah, I was going to make the same comment Pithlord made. Abortion was legal from 1969, but required the approval of hospital committees. These committees tended to make rather arbitrary judgments, and while it was easy for a wealthy white woman to obtain an abortion on mental health grounds, a poorer native woman would have a harder time. That inequality was the major force behind people like Morgentaler disobeying the law.

    And now, there is no law at all in Canada that even mentions abortion. And no political party will touch it with a ten-foot pole.

  14. twf
    May 3, 2007 at 3:18 pm

    Sorry, no mainstream political party will touch it with a ten-foot pole. The Christian Heritage Party, for example, is a different matter.

  15. Bird
    May 3, 2007 at 3:25 pm

    Really, twf, I think the lack of a law is probably for the best in a lot of ways. Although I’d like to see more equal funding across the country, I’d like abortion to stay between a woman and her doctor, like any other procedure. As soon as you start talking about making laws, people start talking about restrictions.

    When polled, Canadians generally don’t want to reopen the abortion debate. As far as most of the population is concerned, we should just let the issue alone. I’m good with that. Bringing abortion up during election campaigns tends to be a bad move for politicians—they generally lose points in the polls for it, so most of them don’t touch it.

    There seems to be a similar national feeling on same-sex marriage. Even people who were somewhat opposed to it before the legislation figure that the debate is over and done. There doesn’t seem to be much desire (except on the extremes) to revisit the issue. The Conservative-initiated vote in parliament this year was mostly a show for their social conservative constituents. Nobody ever thought the law would actually fall, not even Conservative party strategists.

  16. May 3, 2007 at 5:13 pm

    betsy: me too. but those are Canada’s colors so maybe they make all their judges dress up like santa’s for official picutures.

  17. twf
    May 3, 2007 at 5:37 pm


    Even my mother-in-law (racist, classist, in most ways conservative, evil) voted Liberal in 2000 because she felt the CA bringing up the topic of abortion was “threatening a woman’s right to choose.” My opinion of her broadened after that.

    It does amuse me, though, that often Canadians just choose not to talk about contentious issues. Fortunately the way they leave it (abortion, gay marriage) tends to be the right way.

  18. May 3, 2007 at 6:25 pm

    I will not make a Christmas joke.

  19. Elinor
    May 3, 2007 at 6:41 pm

    PEI currently is the worst—there are no providers in the province and women must have a referral to have access to services in a hospital. There’s a good reference chart for Canada at

    That is a good chart, but it glosses over the New Brunswick situation, which makes me wonder what the real deal is in other provinces.

    There are only two hospitals in NB with abortion facilities, the hospitals will only do abortions up to 12 weeks (last I checked), travel costs are not covered, and many doctors don’t even know how to refer patients for the procedure. Two doctors have to certify that the abortion is “medically necessary,” which means they usually have to make up conditions like “pregnancy-induced depression” to “justify” funding the abortion, which can potentially cause women problems later when getting private health insurance, for example. Funded abortions must be done by a gynecologist, even though this is unnecessary and drives up the cost. And getting the referral takes time, if you can do it at all (given the extreme shortage of family doctors in NB and the religious conservatism that prevails in much of the province), and the hospital facilities are so backed up that even women who can meet the requirements frequently end up having to go to the Morgentaler Clinic in Fredericton and pay $500-$700 out-of-pocket (the clinic, unlike the hospitals, will perform abortions up to 16 weeks), plus travel costs if they don’t live in Fredericton. There is no bubble legislation, and the building next to the clinic was bought by an anti-choice group so that they could stand on their own property and harass women going into and out of the clinic.

    So if even that barely gets a mention on the chart…I don’t know.

  20. May 3, 2007 at 6:45 pm

    twf, my mother’s like that, too, but she votes Liberal as well. My father, an unreconstructed “male chauvinist pig” (as my mom says), votes Liberal now because shortly before the last election, I gave him a book about the Avro Arrow and he got mad at the Tories all over again.

    I am quite content with the legal status quo here. The access issues are a problem, but we have all kinds of access issues, unfortunately. It seems for every good thing we do here, we do at least one, and more like two, bad things.

    Would people mind not insulting the formal court costume of our Supreme Court Justices, please? Especially in a memorial thread?

  21. JPlum
    May 4, 2007 at 10:40 am

    I don’t think anyone was being insulting about the outfits. It’s hard not to think of a Claus family reunion, seeing all the justices lined up. Maybe if SCOTUS had happy, Christmas-y outfits, they’d make nicer, more compassionate decisions.

    There was an excellent TV movie made about Morgentaler, that unfortunately did not get the publicity or viewers it deserved. I think it’s this one:
    If you get a chance, watch it.

  22. JPlum
    May 4, 2007 at 11:47 am

    Here’s an excellent statement on the changing value of a fetus over time. If I’m reading the decision correctly, it’s written by Wilson.

    “The value to be placed on the foetus as potential life is directly related to the stage of its development during gestation. The undeveloped foetus starts out as a newly fertilized ovum; the fully developed foetus emerges ultimately as an infant. A developmental progression takes place between these two extremes and it has a direct bearing on the value of the foetus as potential life. Accordingly, the foetus should be viewed in differential and developmental terms. This view of the foetus supports a permissive approach to abortion in the early stages where the woman’s autonomy would be absolute and a restrictive approach in the later stages where the states’s interest in protecting the foetus would justify its prescribing conditions. The precise point in the development of the foetus at which the state’s interest in its protection becomes “compelling” should be left to the informed judgment of the legislature which is in a position to receive submissions on the subject from all the relevant disciplines.”

  23. Bird
    May 4, 2007 at 12:11 pm

    Elinor, I believe that the NAF website addresses those things more in-depth elsewhere. The chart is meant as a quick comparison guide. I know the organization presents NB’s policies as potentially violating the Canada Health Act, for example.

    There’s an issue with access even in the provinces with the best services in accessibility for women in rural areas or smaller towns. When your doctor is your neighbor, how do you get a referral/services without it affecting your social/community life? Even worse, what if he/she categorically refuses? For women with the means and freedom to travel to the city, there are more choices, but for teens, women in abusive relationships, or women in poverty, access becomes a problem even in Ontario or Alberta.

    twf, I laugh at our tendency to do that too (perhaps it’s an outgrowth of our legendary politeness). Fortunately, we’re a country that tends towards more freedoms, not less. We seem to have a culture that believes that as long as someone isn’t harming other people, s/he should be left alone. I’m not sure we avoid talking about contentious issues—the same-sex marriage debate got pretty vocal! But I think we like to let sleeping dogs lie. Once a decision is made to give people more freedoms, we’re unlikely to take it back. That’s one of the many reasons I’m generally pretty glad I’m Canadian.

  24. May 6, 2007 at 5:26 pm

    I hypothesize that it took Canada until 1988 precisely because of our socialized health care.

    It’s one thing to say “abortions should be legal” and quite another thing to say “abortions should be legal and paid for by taxpayers”

    And private medical clinics are a whole other kettle of fish.

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