The first Indigenous judge in the Supreme Court’s 148-year history has been left off a case with important consequences for Indigenous peoples, so the court could avoid the possibility of a tie vote.
With one of its nine members caught up in a disciplinary process, Chief Justice Richard Wagner chose to hear a major federalism case with seven judges, rather than eight, and designated Michelle O’Bonsawin, an Abenaki from Northern Ontario, to sit out the two-day hearing that began Tuesday.
The ninth judge, Justice Russell Brown, is the subject of a complaint to the Canadian Judicial Council over a physical altercation and alleged harassment of women at an Arizona hotel.
The importance of the case is reflected by the near-record 29 intervenors participating, including seven provinces. It focuses on a federal environmental law, the 2019 Impact Assessment Act and whether Ottawa exceeded its jurisdiction. Alberta asked the province’s Court of Appeal to rule on that question and the court found 4-1 that it violates Canada’s founding 1867 Constitution. The federal government appealed to the Supreme Court.
The law regulates natural-resource projects with effects in federal jurisdiction – including impact on Indigenous peoples and their lands, as well as on birds, fish and climate change.
Justice O’Bonsawin was appointed by Prime Minister Justin Trudeau last summer to replace Michael Moldaver, who retired. Her appointment came after the Indigenous Bar Association and Murray Sinclair, the former head of the Truth and Reconciliation Commission, lobbied for representation at the table of the country’s most powerful court.
Her exclusion from the panel hearing the case disappointed some legal observers.
Gillian Calder, who teaches law at the University of Victoria, said on Twitter that because of an investigation into Justice Brown’s alleged sexist behaviour, “we silence an Indigenous woman.”
Krysia Przepiorka, a Calgary lawyer who is a member of Carry the Kettle Nakota Nation in Saskatchewan, said it would have been “wonderful to see Justice O’Bonsawin on the panel. Justice O’Bonsawin, because of her Indigenous heritage and extensive academic background, would have been excellent as one of the seven panelists.”
Andrew Bernstein, a Toronto lawyer, said that because Justice O’Bonsawin is new to the court, her views on difficult federalism questions aren’t known. “But she is expected to be a strong voice on Indigenous issues and we will miss having that perspective.”
The court has always sat with an uneven number of judges since Chief Justice Wagner’s mandate began late in 2017, his spokeswoman, Stéphanie Bachand, told The Globe and Mail. The Chief Justice sets the panel of judges who hear a case, she said, but declined to explain how the process worked in this case.
Chief Justice Wagner may have chosen Justice O’Bonsawin to sit out because she is the court’s most junior judge, said Carissima Mathen, a law professor at the University of Ottawa. Or he may have asked the justices who was willing to sit out.
By law, the court has three judges from Quebec, a province deeply concerned about provincial autonomy. It would have been bad optics for the court to exclude a Quebec judge. Nor could the court exclude judges who supported the provincial-rights position in the 2021 ruling in which the court upheld the federal carbon tax. (The absence of Justice Brown, who was appointed from Alberta, left just two such judges.) The remaining judge from Alberta, Justice Sheilah Martin, could not be excluded, either, because the case is from Alberta.
That left Ontario, which by convention has three judges. Justice Mahmud Jamal has argued federalism cases before the Supreme Court and written extensively on the subject; besides all that, he went to high school in Edmonton. And Justice Andromache Karakatsanis was left off an important Indigenous case recently. So the Chief Justice may have arrived at Justice O’Bonsawin by process of elimination.
The absence of Justice Brown, a provincial-rights advocate, was noticeable in court on Tuesday. Chief Justice Wagner says he placed the judge on leave on Feb. 1, after being informed of the complaint. In hearings, Justice Brown is tenacious and well-prepared. Supreme Court hearings are a give-and-take between judges and counsel.
“His absence leaves us without his usual deeper dive into the text and structure of the Act itself,” Toronto lawyer Jeremy Opolsky said. “Likely the federal government got off much lighter without his presence on the bench.”
In his absence, Justice Malcolm Rowe of Newfoundland and Labrador stepped to the fore as the court’s most persistent provincial-rights voice. He repeatedly told federal lawyer Christopher Rupar that the law’s focus on environmental consequences distracted from its broad purposes and seemingly limitless federal discretion.
Assume, said Justice Rowe, that a government wishes to build a highway. “And it’s nominally held up because of a frog. It’s really held up because we’re not supposed to be driving cars, and fossil fuels are bad, and it’s not sustainable.” The frog that seems to hold up the highway hides the law’s real intentions, he suggested.
Justice Rowe, Justice Brown and Justice Suzanne Côté dissented in the 2021 ruling in which the court upheld the federal carbon tax 6-3, over the objections of Alberta, Saskatchewan and Ontario.
Justice Jamal, who was on the federalist side in that case, asked what constrains Ottawa’s discretion to “veto” projects. Mr. Rupar replied that the act contains no veto power. Justice Jamal did not seem convinced.
Justice Côté asked how significant an environmental impact must be to trigger the assessment process. Mr. Rupar’s answer – a substantial impact is needed – did not satisfy Justice Karakatsanis; she voiced the same concern as Justice Côté about whether anticipated effects could be merely trivial. The questions indicate some judges may be struggling with the federal position.
On Wednesday, Alberta presents its position.