Justice Bertha Wilson: A Classically Liberal Judge

This paper argues that Justice Wilson’s approach to judging was influenced by a classical liberalism that defended the rights of the individual against the power of the state. The first part of the paper explores the concept of classical liberalism by examining Justice Wilson’s judgment in R. v. Morgentaler. Although this landmark judgment is influenced by feminism because Justice Wilson writes from the perspective of a woman, it is ultimately grounded in classical liberalism that protects the freedom of all individuals and requires the state to justify any incursion on individual freedom. The second part of the paper examines a number of procedural decisions made by Justice Wilson and suggests that they were grounded in a classical liberalism that stressed the obligations of the state to treat all individuals fairly and to give individuals the benefit of the doubt. The third part of the essay examines Justice Wilson’s approach to the substantive content of the criminal law. In decisions such as R. v. Tutton, Justice Wilson expressed a preference for subjective fault requirements that would encompass individuals in all their idiosyncrasies. at the same time, Justice Wilson respected clear decisions by Parliament to employ objective standards while attempting in cases such as R. v. Hill and R. v. Lavallee to apply objective standards in a manner that was fair to all. The fourth part of this paper examines how Justice Wilson’s classical liberalism informed her unflinching and rigorous approach to the Oakes standard of justification. Her approach was frequently a dissenting one, but it served as a pole star that helped ensure that the Court never lost sight of the fact that section 1 of the Charter required the state to justify why it was necessary to infringe rights. Justice Wilson’s approach to section 1 was ultimately grounded in liberal principles that stressed the importance of protecting all individuals from the state and it did not demonstrate any ambivalence about the potentially harmful powers of the state