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Contextualism, Feminism, and a Canadian Woman Judge

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Abstract

Feminist legal scholars have never cut the first woman appointed to the Supreme Court of Canada as much slack as the second. Yet the first, Justice Bertha Wilson, introduced the contextual method into the Court’s jurisprudence. Her approach to contextualism is consistent with one of three feminist legal methods that Katharine T. Bartlett identifies. More specifically, it is consistent with Bartlett’s feminist practical reasoning. However, Justice Wilson’s contextualism is not without its critics. The most challenging, Ruth Colker, contends it must work in conjunction with a distinctive substantive principle. Justice Wilson took a different approach, aligning the contextual method with the constitutional principle of proportionality. Thus construed, this paper argues, contextualism represents a new approach to feminist judging.

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Notes

  1. Appointed to the Supreme Court of Canada on 4 March 1982, Bertha Wilson was the first of seven women, four of whom currently sit on the nine-member bench. She retired on 4 January 1991.

  2. [1989] 2 SCR 1326.

  3. Judicature Act, RSA 1980, ss. 30(1) and (2).

  4. Edmonton Journal, supra n 2 at 1371–1372.

  5. Edmonton Journal v Alberta [1987] AJ No. 649; 53 Alta LR (2d) 193 (Alta CA), continuing: “It was introduced at the Spring Session in 1935 by the Reid government. Months earlier, Reid’s predecessor as Premier had resigned after an action for damages was brought against him by the father of his secretary under the Seduction Act, RSA 1922, c. 102. Some newspapers had reported the details of the allegations in the pre-trial materials as well as the trial testimony, and many people claimed to be shocked that such material could be seen in daily newspapers delivered to the home. Indeed, a newspaper was convicted of contempt. Moreover, another cabinet minister, McPherson, had been party to a divorce. The trial was on April 22, 1931. In an effort to avoid publicity, the case was heard in the library of the old Courthouse at Edmonton. Later, the Privy Council vacated the order because the case was heard in camera. See McPherson v McPherson [1936] AC 177”.

  6. Canadian Charter of Rights and Freedoms 1982, ss. 2(b) and 15(1) provide:

    2 Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

    15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

  7. Edmonton Journal, supra n 2 per La Forest J at 1382, stating that the distinction was not “in any way analogous to the enumerated grounds” in s. 15(1).

  8. Canadian Charter of Rights and Freedoms 1982, s. 1 provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

  9. R v Oakes [1986] 1 SCR 103 at 138–139.

  10. Edmonton Journal, supra n 2 at 1352.

  11. Ibid.

  12. Ibid.

  13. Ibid.

  14. Ibid.

  15. Ibid at 1355.

  16. Ibid at 1352.

  17. R v Oakes, supra n 9 at 139.

  18. Edmonton Journal, supra n 2 at 1353.

  19. Ibid.

  20. Ibid.

  21. Ibid at 1354.

  22. Ibid at 1367.

  23. R v Morgentaler [1988] 1 SCR 30.

  24. R v Lavallee [1990] 1 SCR 852.

  25. Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code [1990] 1 SCR 1123.

  26. R v Konkin [1983] 1 SCR 388; R v Hess, R v Nguyen [1990] 2 SCR 906.

  27. Pelech v Pelech [1987] 1 SCR 801; Richardson v Richardson [1987] 1 SCR 857; Caron v Caron [1987] 1 SCR 892.

  28. Edmonton Journal, supra n 2 at 1341.

  29. Ibid at 1360.

  30. Ibid.

  31. In re Mabel French (1905) 37 NBR 359; Reference re Meaning of the Word “Persons” in s. 24 of the British North America Act [1928] SCR 276, reversed by Edwards et al. v Attorney-General for Canada [1930] AC 124.

  32. Edmonton Journal, supra n 2 at 1378–1379.

  33. Ibid at 1361.

  34. Ibid.

  35. Ibid at 1352.

  36. Ibid at 1350 (see also 1336, 1339, 1347).

  37. Ibid at 1356.

  38. Ibid at 1365.

  39. Ibid, citing McPherson v McPherson, supra n 5.

  40. Ibid at 1366.

  41. Ibid at 1356.

  42. R v Edwards Books and Art [1986] 2 SCR 713 at 768 per Dickson CJC: “the limiting measures … must impair the right as little as possible” (emphasis added).

  43. Justice Wilson died on 28 April 2007.

  44. R v Big M Drug Mart [1985] 1 SCR 295 at 344 per Dickson J: “In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter”.

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  1. Faculty of Law, Queen’s University, Kingston, ON, K7L 3N6, Canada

    Beverley Baines

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Baines, B. Contextualism, Feminism, and a Canadian Woman Judge. Fem Leg Stud 17, 27–42 (2009). https://doi.org/10.1007/s10691-009-9108-7

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