National Affairs
Wilson promoted her view above politicians
Claire Hoy
Bertha Wilson, the first woman appointed to the Supreme Court of Canada, died earlier this month and, as you'd expect, was the subject of countless editorials and comments lauding her work.

One major newspaper's editorial, for example, pointing out she was appointed just weeks before the Charter of Rights and Freedoms because law in 1982, said that during her nine years on the bench "she became its most eloquent champion, most notably using it to define the rights of women and minorities."

Like anything else, of course, a retrospective depends upon a point of view. For those judicial activists, who believe

that nonelected, unaccountable

lawyers in robes poses greater wisdom than the collective smarts of our elected legislatures, then, it's true, Wilson was an "eloquent champion" of her pet issues.

But for those of us who prefer our politics from politicians - who, unlike judges, have to pay at least passing interest in public attitudes - Wilson was the first, and arguably the worst, example of judges who use the top bench to impose their own ideological bent upon an unsuspecting public, regardless of what either the public or their elected representatives may think.

Kent Roach, a University of Toronto law professor who was Wilson's law clerk in the late 1980s, told the Toronto Star that, "there was a real determination ... a fearless sense of principle. She really just called them as she saw them." Put another way, she used her power - which, under our system of appointed Supremes is virtually unfettered - to ram her own views down the throats of Canadians.

To be fair, Wilson wasn't the only Supreme doing this.

And most of them continue that tradition to this day, using their power to "read in," i.e. manufacture, laws whether the elected representatives of the people meant it that way or not.

Indeed, there are numerous examples of the courts "reading in" laws against the express wishes - and recorded votes - our elected politicians. But we digress. Wilson is most noted - applauded in some circles, reviled in others - for pushing the highly political notion of the "feminist critique" upon her fellow jurists.

This manifested itself in two of her most noted rulings: the 1988 Morgentaler ruling striking down Canada's abortion law, and the 1990 case of Angelique Lavallee, where the so-called "battered-women's syndrome" - an extremely dicey proposition - was invented in the process of acquitting a woman who shot her common law partner in the back of the head.

There is no doubt that in that case, the partner was a lout, a despicable man who used his superior physical strength to inflict punishment upon Lavallee and deserved to be spending considerable time in a prison cell by himself.

But to justify what amounts to the planned execution of this brute on the basis of some wonky "feminist critique" is hardly something that those who truly respect law and order should be celebrating and opens up a truly dangerous avenue of judicial thought.

And then there's Morgentaler. As a result of Wilson's tireless effort on behalf of Canada's most famous abortionist, in fact, Canada is the only westernized country on the face of the planet which does not have any restrictions whatsoever on abortion. None.

Yet public opinion polls over the years have consistently shown that a significant majority of Canadians are uncomfortable with this. Not that the majority is categorically opposed to abortion regardless of the circumstances.

But many are opposed to the idea that an abortion can be - and sometimes is - conducted on a fetus which is in the last and final stages of its' growth process.

In the U.S., for example, the Supreme Court recently upheld the government's ban on what are called partialbirth abortions on the grounds, according to the 5-4 majority view, that "the state does have an important and legitimate interest in preserving and protecting the health of the pregnant women."

Not to mention the fetus, of course. Those of us who believe - as I do - that the fetus is in fact the first stage of life, as opposed to what some pro-abortion activists charactize as a nun-human hunk of blood and flesh, also believe that this is not simply a question of the "feminist critique" approach which argues essentially that it only involves the mother and that the fetus, apparently a nonperson, is irrelevant.

That certainly was Wilson's view.

And even if you subscribe to that view - and I obviously don't - the bigger issue here, and my biggest beef with Wilson and her ilk, is that they use - abuse? - their positions of trust and power to promote their own view of society regardless of what elected representatives think.

As for Wilson, she was just one of a host of Supremes who see themselves as possessing almost god-like wisdom.

This is not meant to celebrate her death, only to lament her judicial career.