Justice Michelle O'Bonsawin participates in a special meeting of the Standing Committee on Justice and Human Rights, following her nomination to the Supreme Court of Canada, in Ottawa, on Aug. 24.Justin Tang/The Canadian Press
Two major cases on Indigenous law are coming before the Supreme Court of Canada as it prepares to welcome its first Indigenous member, Justice Michelle O’Bonsawin.
The presence of the 48-year-old Abenaki from Northern Ontario gives the Indigenous legal community exactly what it has been pressing for – a voice at the table, particularly as issues affecting Indigenous peoples are decided.
But if it is an opportunity to introduce the “lived experience” of an Indigenous judge into the court’s backrooms, the appointment also puts an immediate spotlight on Prime Minister Justin Trudeau’s selection of a relatively inexperienced jurist.
In conventional terms, such as the level of court she served on, her published writings, her advocacy before senior courts and the complexity of the cases she has ruled on, Justice O’Bonsawin is well behind her new colleagues at their time of appointment, and behind several Indigenous judges on other courts, such as Len Marchand of the B.C. Court of Appeal, Jonathon George of the Ontario Court of Appeal and Paul Favel of the Federal Court.
Supreme Court judges are expected to be generalists with some areas of specialized expertise. “I’m a judge first and an Indigenous person and a mother and a Franco-Ontarian afterward,” Justice O’Bonsawin said when asked how her appointment would promote Indigenous law during her two-hour parliamentary nomination hearing last month.
Still, she joins the court at a fraught time for Indigenous law. No less than political autonomy for Indigenous peoples – the right to make their own laws, within a Canadian framework – is at issue in the two cases coming before the Supreme Court.
The first, scheduled for early December, involves the right of Indigenous peoples to write their own laws for child-welfare services. In Bill C-92, which took effect two years ago, the federal government affirmed the right to self-government. Bill C-92 gave Indigenous laws in the area of child welfare the force of federal law, making it paramount, meaning it supersedes any provincial legislation covering the same topic. Quebec argued that Bill C-92 violated provincial jurisdiction, and referred the question of its constitutionality to the province’s Court of Appeal, which upheld most, but not all, of the law.
The second case has not been scheduled yet, but the Supreme Court has invited prospective intervenors to apply to be heard. The case, from Yukon, is about an Indigenous community’s right to set a residency requirement for members of its council. It will be the first case to reach the Supreme Court under Section 25 of the Charter of Rights and Freedoms. That section says Charter rights must not be interpreted to detract from Indigenous rights.
Jason Madden, a Métis lawyer, says the two cases, taken together, will force the court to address the role of Indigenous laws and legal orders that pre-exist the writing of Canada’s founding 1867 Constitution, which divided powers between Ottawa and the provinces.
“In these two cases, the Supreme Court of Canada will have to finally deal with the ‘elephant in the room’ when it comes to modern aboriginal law; namely, how pre-existing Indigenous law, jurisdiction and self-government reconciles within Canada’s constitutional architecture.”
Mr. Madden is part of a legal team representing Métis governments seeking to intervene in the two cases.
Justice O’Bonsawin, a married mother of two boys, is a member of the Abenaki people of the Odanak First Nation. She grew up off-reserve in a francophone community near Sudbury as an only child, with a large extended family. Her father was a machinist, her mother a teacher. Her husband is an engineer and lawyer. Her mandatory retirement date is May 2, 2049. Her name means “pathfinder” in the Abenaki language.
Justice O’Bonsawin was a member of the Ontario Superior Court in Ottawa for the past five years. No other Supreme Court judge chosen from the lower courts in the Charter era that began in 1982 was appointed without appeal-court experience. But not every appointee had been a judge. Three were named straight from private practice, and were considered leaders in the profession: Justice Suzanne Côté of the current court, John Sopinka and Ian Binnie.
Before that, Justice O’Bonsawin was in-house counsel for the Royal Ottawa Health Care Group, a mental-health facility, for eight years and in-house counsel for Canada Post for nine years. She completed her PhD thesis last year at the University of Ottawa on the treatment of Indigenous people at mental-health review boards, part of the justice system. She has placed the thesis under embargo, and not only the public but the parliamentary committee that questioned her was not permitted to view it.
Her list of publications is slight; her application includes items such as a Q and A she answered for a Canadian Bar Association series on female judges, and mental-health checklists she co-authored for the judiciary.
Her views on the application of the Charter of Rights and Freedoms are largely unknown. She supplied the parliamentary committee with two Charter decisions. One attributed delay in a criminal case to the defence. In the second, she wrote a ruling upholding the lawfulness of a school principal’s search of a teacher’s computerized log, a search that led to disciplinary proceedings against the teacher. The Ontario Court of Appeal overturned the ruling. It was one of a half-dozen of her 131 rulings to be overturned, but one of the six, Callow v. Zollinger (2017), was restored by the Supreme Court, where it created an important precedent on the duty of honesty in carrying out contractual obligations.
Jim Phillips, a professor of law and history at the University of Toronto Faculty of Law, said Justice O’Bonsawin’s legal background adds to the court’s diversity.
“The mere fact that Justice O’Bonsawin doesn’t fit the mould of a Beverley McLachlin doesn’t mean that she’s a complete outlier,” Prof. Phillips said in an interview, referring to the court’s first female chief justice. “I don’t think it’s a bad thing to get people whose legal experience is other than being a partner at a major Bay Street law firm. … Lawyers work everywhere.”
Still, “most people don’t have much sense of her, because she’s done relatively low-profile things,” added Prof. Phillips, who is editor-in-chief at the Osgoode Society for Canadian Legal History.
The Liberal government has been seeding federally appointed courts with Indigenous judges. But Justice Marchand, a judge since 2013, was not eligible for the Ontario position. Justice George is not on the list of Ontario appeal-court judges who hear cases in French. Mr. Trudeau made bilingualism in Canada’s two official languages a requirement for the job. Justice Favel, who wrote this year’s landmark ruling on Indigenous child-welfare services upholding a $40-billion award against Ottawa, did not apply.
Last summer, Mr. Trudeau appointed the first member of a racialized minority to the Supreme Court. Justice Mahmud Jamal had been on the province’s Court of Appeal for just two years. But he had advocated at the Supreme Court more than 30 times and appeared before the appeal courts of seven provinces. By comparison, Justice O’Bonsawin’s only experience with the Supreme Court was in a single leave to appeal, arguing against the court taking on a case. She was successful.
Previous “firsts” have made a large impact on Canadian law. Mr. Trudeau’s father, Pierre, appointed Bertha Wilson, the first woman on the Supreme Court, in 1982. She is considered a giant of the early years of the Charter of Rights. She had been an appeal-court judge, but before that had worked in obscurity as a big-firm research lawyer.
Pierre Trudeau also appointed Bora Laskin, the first Jewish member, in 1970, and later named him chief justice (1973-84). Mr. Laskin challenged the rigid, formalistic rulings of what was – when he joined it – a conservative institution, paving the way for a more liberal approach under the new rights Charter. He, too, came from an appeal court.
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