Indigenous Supreme Court nominee ‘brings experience, understanding’

The next composition of the Supreme Court of Canada is expected to include its first Indigenous justice.

Michelle O’Bonsawin, an Abenaki member of the Odanak Nation, appeared before the Commons Justice and Human Rights Committee on Wednesday to answer questions as a nominee to the highest court.

Prime Minister Justin Trudeau’s announcement on August 19 was welcomed by Indigenous groups as a much-needed step toward further diversification of the Supreme Court and reconciliation.

Last year marked the first appointment of a person of colour to the Supreme Court.

O’Bonsawin has been a judge of the Ontario Superior Court of Justice in Ottawa since 2017. She is bilingual in French and English, a requirement to sit on the Supreme Court.

Christa Big Canoe, who served as lead commission counsel for the National Inquiry into Missing and Murdered Indigenous Women and Girls and who is presently the legal director at Aboriginal Legal Services in Toronto, calls the nomination “significant and substantial, because here’s the highest court in the land making determinations on issues that are Indigenous-specific with zero Indigenous perspective.”

Big Canoe points out that the Indigenous Bar Association (IBA) has been advocating for such a nomination for well over a decade. O’Bonsawin was shortlisted by an advisory board that, for the first time, included an additional member selected by the Indigenous Bar Association.

In a statement, the IBA said O’Bonsawin’s appointment would bring historic change.

“Historically, despite Indigenous SCC justice candidates making significant contributions to Canada’s legal systems, they are often systemically excluded or dismissed from the process due to internalized and institutional racism,” the statement read.

Retired senator Murray Sinclair, Manitoba’s first Indigenous justice and the former chief commissioner of the Truth and Reconciliation Commission, said he advised O’Bonsawin during the application process.

In a statement, Sinclair called O’Bonsawin an important voice on “issues facing Canada’s long journey of reconciliation with First Nations, Métis and Inuit.”

Big Canoe, who has argued in front of the Supreme Court, also perceives O’Bonsawin as a welcoming face when Indigenous organizations or individuals argue at the highest court.

Big Canoe remembers feeling “at least one person in the room was listening to me” when she argued at the Ontario Court of Appeal and Justice Harry LaForme was on the bench. LaForme is Anishinaabe and a member of the Mississaugas of the New Credit First Nation.

She made clear she is not expecting special treatment from O’Bonsawin because they’re both Indigenous, but said she knows O’Bonsawin will “bring the lived experience of an Indigenous person and an understanding of how there are so many issues before courts where Indigenous people are … mass represented.”

Big Canoe added: “She’ll come with a knowledge or perspective that understands the impact to Indigenous communities.”

Among O’Bonsawin’s stated areas of specialization are mental health law, Indigenous issues, Gladue principles, labour and employment law, human rights, privacy and access to information law.

Gladue principles take into consideration the unique circumstances facing an Indigenous offender due to the challenges created by colonialism. The principles apply in criminal court and are used for sentencing purposes.

Big Canoe, who once presented on a panel with O’Bonsawin, says O’Bonsawin “made a point” of speaking about the colonial legacy and its intergenerational impact on Indigenous people and communities. O’Bonsawin, she said, recognized that mental health and long-term post-trauma are part of the legal issues facing many Indigenous peoples and lead to the overrepresentation of Indigenous people in the justice system.

O’Bonsawin’s expertise, says Big Canoe, will guide other judges on the bench and diversify a Supreme Court that for years had a “lack of awareness of Aboriginal treaty rights or inherent rights.”

The seat on the Supreme Court of Canada is becoming vacant with the pending September retirement of Justice Michael Moldaver. As Moldaver was appointed to the Supreme Court from the Court of Appeal for Ontario, the vacancy he creates was open to candidates from Ontario, in keeping with the court’s custom of regional representation.

First Indigenous lawyer nominated to sit on Supreme Court of Canada ‘significant and substantial’The Supreme Court of Canada consists of nine justices. It sits in Ottawa and holds three sessions a year. Annually it hears on average 65 to 80 appeals.