Working with Bertha Wilson: Perspectives on Liberty, Judicial Decision-Making and a Judge’s Role

This paper examines the way in which Justice Wilson approached decision-making in several significant Charter cases concerning freedom of expression and liberty that came before the Supreme Court of Canada during its 1989-90 term. The author explores Bertha Wilson’s views on the constitutional constraints within which judicial decision-making must take place and her understanding of a judge’s role. The paper emphasizes her concern to develop sound methodological approaches to analyzing those aspects of the Charter rights at play in the cases that came before the Court. It also observes that she took great care not to deal with questions concerning the scope or substance of Charter rights that were not engaged in the cases before the Court. The paper stresses that much can be learned about her views on the constitutional limits to a judge’s role from an examination of paths that she did not go down when engaged in Charter analysis. The author concludes that Justice Wilson’s decisions were the outcome of a well-developed view of the constraints within which the judiciary must operate in order to maintain its legitimacy