Bertha Wilson was born Bertha Wernham on September 18, 1923, in Kirkcaldy, Fife, Scotland, the youngest child and only daughter of Archibald Wernham and Christina Noble. Her parents had served in the First World War, her father as a soldier and her mother as a nurse, and neither had finished high school, yet they placed a high value on education for all their children. Wilson attended Aberdeen Central Secondary School and then followed her two older brothers to the University of Aberdeen, where she earned a Master of Arts degree in philosophy in 1944. The following year she completed a teaching diploma at the Training College for Teachers in Aberdeen. In December 1945 she married the Reverend John Wilson, a Presbyterian minister. The couple emigrated to Canada in 1949 after he accepted a pastoral posting, initially settling in Renfrew, Ontario.
For several years Wilson lived the conventional life of a minister’s wife, supporting her husband’s work in successive congregations and later during his service as a naval chaplain. When the couple moved to Halifax, she decided, at the age of thirty-one, to study law. She enrolled at Dalhousie Law School in the mid-1950s and graduated with an LL.B. in 1957, near the top of a class that included only a handful of women. She was called to the bar of Nova Scotia that year. After her husband’s naval appointment ended, the Wilsons moved to Toronto, where she was called to the Ontario bar in 1959 and joined the large firm of Osler, Hoskin & Harcourt.
At Osler she specialized in legal research and opinion writing, work that suited her analytical temperament and allowed her to range across many areas of law. In 1968 she became the firm’s first female partner. She also established its research department, the first of its kind in a Canadian law firm and a model later copied elsewhere. Colleagues came to rely on the thoroughness of her memoranda. She was appointed Queen’s Counsel in 1973. Despite her success in private practice, she had never argued a case in court, a fact that later made her judicial appointments all the more striking.
In December 1975 Wilson was appointed to the Court of Appeal for Ontario, the first woman to sit on that court and the first woman appointed to any appellate court in Canada. She approached the role with characteristic caution, conscious of her limited courtroom experience and of the criminal docket that formed a large part of the court’s work. On the bench she quickly developed a reputation for careful research, clear writing, and a humane attention to the circumstances of the people before her. Her judgments addressed human rights, discrimination on grounds of sex and ethnicity, the division of matrimonial property, child custody, and the right of individuals to obtain information held about them by government. She wrote in favour of recognizing the contributions of common-law spouses to family businesses and questioned exclusions that kept girls off boys’ sports teams. Not every senior colleague welcomed her presence; at least one judge is reported to have said openly that no woman could do the job. Wilson’s work on the court demonstrated otherwise.
Her appointment to the Supreme Court of Canada came on March 4, 1982, on the nomination of Prime Minister Pierre Trudeau. She was sworn in on March 30, less than three weeks before the Queen proclaimed the Constitution Act, 1982, which included the Canadian Charter of Rights and Freedoms. She was the first woman to serve as a puisne justice of the Court and remained there until her retirement on January 4, 1991. The timing placed her at the centre of the first decade of Charter interpretation. She participated in many of the foundational decisions and was known for writing her own reasons, including frequent concurrences and dissents, rather than simply joining opinions prepared by others.
Among the judgments most closely associated with her name is R. v. Morgentaler (1988). While other members of the Court struck down the Criminal Code restrictions on abortion on procedural or administrative grounds, Wilson’s concurring reasons went further. She held that the decision whether to terminate a pregnancy falls within the sphere of personal autonomy protected by section 7 of the Charter, the right to life, liberty, and security of the person. In R. v. Lavallée (1990) she wrote the unanimous judgment recognizing battered-woman syndrome as relevant to the defence of self-defence. The case involved a woman who had shot her abusive partner after years of violence; Wilson’s reasons rejected the notion that a man’s home is exclusively his castle and insisted that the law take account of the reality of prolonged domestic abuse. In Andrews v. Law Society of British Columbia (1989) she joined the majority in establishing the analytical framework for equality claims under section 15 of the Charter, holding that a citizenship requirement for admission to the bar violated equality rights and could not be justified under section 1.
Other significant opinions included her reasons in Operation Dismantle v. The Queen (1985) on standing and justiciability under the Charter, her dissenting view in McKinney v. University of Guelph (1990) against mandatory retirement, and her contribution to the development of the law on piercing the corporate veil in Kosmopoulos v. Constitution Insurance Co. of Canada. She also wrote on the mental element required for certain sexual offences, opinions later adopted by the Court. Throughout, her approach combined close attention to statutory and constitutional text with an insistence that legal rules be understood in their social context. She was appointed to the Permanent Court of Arbitration in 1984 while still on the Supreme Court.
After leaving the bench she continued public service. She served as a commissioner on the Royal Commission on Aboriginal Peoples, whose work examined the historical and contemporary relationship between Indigenous peoples, the Canadian government, and Canadian society and whose report appeared in 1996. She was elected a Fellow of the Royal Society of Canada in 1991 and named a Companion of the Order of Canada in 1992. She also undertook work for the Canadian Bar Association on gender equality in the legal profession. In later years she lived quietly in Ottawa with her husband. She developed Alzheimer’s disease and died in an Ottawa retirement home on April 28, 2007, at the age of eighty-three.
Wilson’s career was marked by a series of firsts: first woman partner at a major Bay Street firm, first woman on a Canadian appellate court, first woman on the Supreme Court of Canada. She did not describe herself as a feminist, yet many of her judgments expanded the legal protections available to women and to other groups facing disadvantage. Her influence is visible both in the specific doctrines she helped shape during the Charter’s formative years and in the broader expectation, now largely taken for granted, that the highest courts should include women. The Wilson Moot, an annual competitive moot for law students, is named in her honour. Her published reasons remain a primary source for anyone studying the early jurisprudence of the Canadian Charter of Rights and Freedoms.