Bertha Wilson: “Will Women Judges Really Make A Difference?” – Listen to Justice Wilson’s Speech

With the death of Bertha Wilson on April 28th, Canada lost the first woman judge to be named to the Supreme Court of Canada (“SCC”). Appointed on March 4, 1982, Justice Wilson served as a member of the SCC until retiring on January 4, 1991. A few months earlier, in May of 1990, she wrote one of her most important decisions. In R. v. Lavallee, [1990] 1 SCR 852 [Lavallee], Justice Wilson referred to psychological and sociological evidence in introducing the “battered wife” defence into Canadian law. The SCC found that, though Lavallee shot her abusive partner in the back, she had acted in self-defence. Six members of the seven judge panel, including its two other women judges – then Justices L’Heureux Dube and McLachlin – joined Justice Wilson’s majority opinion.

Many saw Lavallee as a breakthrough of the kind Justice Wilson had signaled in her most memorable speech. On February 8, 1990, she delivered the 4th Annual Betcherman Lecture at Osgoode Hall Law School. Wilson’s speech, which was titled, “Will Women Judges Really Make a Difference?” expressed the hope that

“[i]f women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference.” “Perhaps they will succeed,” she said, “in infusing the law with an understanding of what it means to be fully human.”

Little did her audience know at the time that she was already at work on her opinion in Lavallee.

Justice Wilson spoke at a time when women’s issues were highly visible and opinions deeply polarized. That may be why her remarks about the challenges and aspirations of women judges – and of women in the profession – served as a lightning rod for debate. While many were quick to praise her for the courage of her convictions, others accused Justice Wilson of a feminist bias which, they said, made her unqualified to sit as a judge. REAL Women responded to the speech by lodging a formal complaint with the Canadian Judicial Council. Then its spokeswoman, Gwendolyn Landolt, took aim at Bertha Wilson’s jurisprudence in the press with an op/ed titled, “Feminism Has No Place in Supreme Court Decisions”.

Bertha Wilson did not regard herself as a feminist judge. To the contrary, Ellen Anderson’s biography – Judging Bertha Wilson: Law as Large as Life – is crystal clear that whatever others may have thought or claimed, this was not a role that Bertha Wilson sought or chose for herself.

“Will Women Judges Really Make A Difference?” was published by the Osgoode Hall Law Journal many years ago ((1990), 28 OHLJ 507). A quick check reveals that, in legal periodicals alone, the speech has been cited more than 75 times. Bertha Wilson’s lecture was enormously provocative at the time, and remains influential today.

The written word and spoken voice are not one and the same. Those who were in the room on February 8, 1990 – including myself – may never forget that they saw and heard a piece of history in the making. Just last summer, in the course of research on a project, I was fortunate to find a tape of “Will Women Judges Really Make A Difference?” For me, anyway, there was a poignancy in listening to the speech one more time, after learning of Justice Wilson’s death. Through The Court, those who have never heard her voice, and those who want to hear it again have the opportunity to relive the moment in history when Madam Justice Bertha Wilson stepped to the podium at Osgoode Hall’s Moot Court Room to ask and answer a question that remains as vital today as it was then.

To listen to the speech click here.