by Kim Brooks (ed). Vancouver: UBC Press, 2010. 344pp. Hardcover $85.00. ISBN: 9780774817325. Paper $32.95. ISBN: 9780774817332. Reviewed by Erin Crandall, Department of Political Science, McGill University. Email: erin.crandall [at] mail.mcgill.ca.
pp.315-318
In what is likely her most oft cited public exchange outside the walls of a courtroom, the late Justice Bertha Wilson (1923-2007) posed the question, “Will women judges really make a difference?” (1990). As a woman of many firsts in Canadian law, most notably the first to be appointed to the Supreme Court of Canada in 1982, there is little question that Justice Wilson made a difference. How to understand this difference (in all its complexities) is the underlying theme uniting this edited volume. Bringing together an impressive group of law professors and lawyers, this contribution provides the reader a rich understanding of the political and historical context in which Justice Wilson operated throughout her legal career, the breadth of her jurisprudence, and her uneasy relationship with feminism within the field of law.
Editor Kim Brooks neatly divides the book into three sections: Foundations (chapters 1-5) examines Justice Wilson’s contributions in areas considered the touchstones of the common law, including property law, contract law, and fiduciary duties; Controversy (chapters 6-10) explores the justice’s more divisive decisions, primarily in the areas of public law; and finally, Reflections (chapters 11-16) considers Justice Wilson’s contributions to the law more generally, providing some of the most personal analysis of the book.
Beyond the evident relevance of examining Justice Wilson’s tenure on the Supreme Court, the authors demonstrate how the exploration of one judge’s career can serve as a useful window through which the development of the law and courts may be considered more generally. As noted by Rosemary Cairns Way and T. Brettel Dawson, Justice Wilson’s life as a legal professional, judge, and public intellectual “mapped and mirrored some of the most significant legal changes of the twentieth century” – including, among others, the entry of women into the practice of law and the development of the contextual approach as a method of judging (p.248). The significance of women’s entry into the legal field seems to bookend both Justice Wilson’s own career and the compilation itself: chapter 1 by Angela Fernandez and Beatrice Tice provides a revealing description of Justice Wilson’s experiences as the first female lawyer in the Toronto law firm of Olser, Hoskin & Harcourt, while chapter 14 by Melina Buckley offers a personal reflection on Justice Wilson’s work as chair of the Canadian Bar Association’s Task Force on Gender Equality in the Legal Profession, which afforded Wilson the opportunity to reflect on the roots and effects of gender inequality within the field.
Justice Wilson is credited with initiating the Supreme Court of Canada’s [*316] contextual approach to rights analysis – that is, acknowledging and understanding the circumstances of the presented legal problem and the implications of one’s decision. Chapter 15, by Cairns and Dawson, highlights Justice Wilson’s promotion of social context education, including judicial sensitivity courses on gender and racial bias. The majority of the book’s contributors, however, focus on how this contextual approach manifested in Justice Wilson’s legal contributions as a judge on the Ontario Court of Appeal and justice on the Supreme Court. For a number of the authors, particularly those who adopt an explicitly feminist lens, Justice Wilson’s approach to the law does not stand without criticism. For Moira L. McConnell (chapter 4), for example, while Justice Wilson’s approach to contract law was guided by concerns of “reasonableness, fairness and justice” (p.75), it may have nonetheless proven to be “a disservice to the goal of women’s equality” (p.88). According to Susan B. Boyd (chapter 10), Justice Wilson’s approach to child custody cases reveals an inconsistent espousal of feminist critiques that ultimately embraces “liberal norms and formal equality that reinforce[s], rather than challenge[s] patriarchy” (p.203). While both contributors are careful in their critiques of Justice Wilson’s decisions, they ultimately end on the same normative question of whether her approach to decision-making was feminist enough (though there are likely multiple feminisms at play here).
Beverley Baines (chapter 11) takes on this complex question directly by asking whether Justice Wilson was a feminist judge. While Justice Wilson chose not to identify herself as a feminist later in life (Anderson 2002), Baines goes beyond self-identification and analyses the concept of sex equality as manifested in three of Justice Wilson’s most controversial Supreme Court decisions, PELECH V. PELECH [1987], R. V. MORGENTALER [1988], and R V. HESS; R. V. NGUYEN [1990]. Baines concludes that Wilson’s decisions can be reconciled with dominance theory, and while tentative in her conclusions concerning contemporary gender theory, believes there is much to indicate the decisions are consistent with this approach as well.
The contribution likely to be of greatest interest to many political scientists is chapter 12 by Marie-Claire Belleau, Rebecca Johnson, and Christina Vinters, who analyze Justice Wilson’s voting record on the Supreme Court. Looking at whether Justice Wilson voted with or against the majority and the forms of her participation (distinguishing between the opinions she wrote versus those she signed), the authors find that Justice Wilson often agreed with her colleagues concerning outcomes (she was part of the majority opinion in 73 percent of the 551 cases she heard). If, however, concurrences are counted alongside dissents, she joined the majority only 35 percent of the time (p.236). When Justice Wilson did diverge from the majority, she was likely to author her own opinion and was more likely to do so based on the reasons (in the form of a concurrence) rather than the results (in the form of a dissent). While the authors find that on average Supreme Court justices wrote opinions in 35 percent of the cases in which they participated, Justice Wilson authored opinions in 55 percent of the non-unanimous cases she heard (p.242). Comparing these results [*317] to other justices who served with Justice Wilson, Belleau et al. find that she was the most likely to concur on cases and was on average more likely to be found in dissent, second only to Justice Claire L’Heureux-Dubé. Interestingly, of the fifteen justices considered, the three found most likely to differ with the majority were also the first three women to be appointed to the Supreme Court (justices Wilson, L’Heureux-Dubé, and Beverley McLachlin). While such results naturally prompt questions concerning the relationship between gender and judicial decision-making, these issues are set aside (presumably in the interest of length). Though the authors do direct the reader to an additional article by Belleau and Johnson (2005) that considers the relationship between gender and judicial dissent in detail, there appears to be a missed opportunity here to engage with the larger literature on gender and judicial decision-making. In particular, it may have been worthwhile for the authors to consider how Justice Wilson’s dissents breakdown according to case type. For example, a recent study looking at federal appellate courts in the United States by Christina L Boyd, Lee Epstein, and Andrew D. Martin (2010) found that only in cases addressing sex discrimination were sex-based effects observed, while in Canada, C.L. Ostberg and Matthew E. Wetstein (2007) have found that female justices of the Supreme Court are more likely to rule in favour of economic underdogs than their male counterparts. Belleau et al. offer data providing great insights into the voting behaviour or Justice Wilson, information that is sandwiched between contributions offering detailed qualitative analysis into her character and approach to the law. It seems an opportunity lost that these different forms of data were not brought together in more comprehensive analysis whether within the chapter by Belleau et al. or as part of a separate contribution.
Larissa Katz (chapter 2) begins her analysis of Justice Wilson’s approach to property law by noting that “[w]e remember and celebrate a judge such as Bertha Wilson by making sense of her legacy” (p.39). And indeed, JUSTICE BERTHA WILSON: ONE WOMAN’S DIFFERENCE, is an important contribution in this process of understanding and appreciating the legacy of Canada’s first woman on the Supreme Court. This book’s contributors provide a layered and thoughtful consideration of Justice Wilson’s life as a legal practitioner, making it a worthwhile read for those interested in the history of women in the law and Justice Wilson’s jurisprudence.
REFERENCES:
Anderson, Ellen. JUDGING BERTHA WILSON: LAW AS LARGE AS LIFE. Toronto: Published for The Osgoode Society for Canadian Legal History by University of Toronto Press, 2002.
Belleau, Marie-Clarie, and Rebecca Johnson. “Les femmes juges feront-elles véritablement une différence? Réflexions sur leur présence depuis vingt ans à la Cour suprême du Canada.” CANADIAN JOURNAL OF WOMEN AND THE LAW 17 (2005): 27-40. [*318]
Boyd, Christina L., Lee Epstein, and Andrew D. Martin. “Untangling the Causal Effects of Sex on Judging.” AMERICAN JOURNAL OF POLITICAL SCIENCE 54, no. 2 (2010): 389-411.
Ostberg, C. L., and Matthew E. Wetstein. “In a Difference Voice: Sex Differences in Economic Cases Decided by the Canadian Supreme Court.” Paper presented at the annual meeting for the Canadian Political Science Association, Saskatoon, 2007.
Wilson, Bertha. “Will Women Judges Really Make a Difference?” OSGOODE HALL LAW JOURNAL 28, no. 3 (1990): 507-22.
CASE REFERENCES:
PELECH v. PELECH, [1987] 1 S.C.R. 801.
R. v. HESS; R. v. NGUYEN, [1990] 2 S.C.R. 906.
R. v. MORGENTALER, [1988] 1 S.C.R. 30.
© Copyright 2010 by the author, Erin Crandall.
