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9.18.2011

On this Day in the History of Comparative Constitutional Law

On this day, we remember the first woman appointed to the Supreme Court of Canada: Bertha Wilson, born on September 18, 1923, in Kirkcaldy, Scotland. 

Justice Wilson was a comparativist. In two of the most controversial judgments issued during her tenure, she looked to American constitutional law and the American constitutional tradition to help her resolve a question of Canadian constitutional law. 

In R v. Morgentaler--Canada's equivalent of the famed American abortion case Roe v. Wade--Justice Wilson recognized that Canada had much to learn from the American constitutional experience:

The courts in the United States have had almost two hundred years experience at this task and it is of more than passing interest to those concerned with these new developments in Canada to study the experience of the United States courts. [Pg. 167]

After reviewing American case law on privacy and the right to procure an abortion, Justice Wilson concluded that "[i]n my opinion, the respect for individual decision-making in matters of fundamental personal importance reflected in the American jurisprudence also informs the Canadian Charter." [Pg. 171]

Later, in Operation Dismantle v. The Queen, the Court faced a difficult question: whether the Canadian Charter prohibited the Canadian government from authorizing the United States government to test cruise missiles over Canadian air and land space. The Court answered no. In her own concurrence, Justice Wilson invoked the American political question doctrine and related cases, and also relied on case law from the United Kingdom's House of Lords. [Paras. 52-67]

More broadly, Justice Wilson was creative, principled, and meticulous. Her judgments exhibit clarity of thought and an appreciation of the precarious political context in which constitutional courts exist and must function.

Justice Wilson earned a degree in philosophy from the University of Aberdeen in 1944 and later earned a law degree from Dalhousie University in 1957. She joined the prestigious firm Osler, Hoskin & Harcourt in 1959, became a partner in 1968, and received her first judicial appointment in 1975 to the Ontario Court of Appeal. Seven years later, Prime Minister Pierre Trudeau appointed her to the Supreme Court of Canada, where she served until 1991. She left our world in 2007, a few months before turning 84.

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