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Prime Minister Justin Trudeau appointed Ontario judge Michelle O’Bonsawin to the Supreme Court of Canada on Aug. 19, making her the first Indigenous person poised to sit on the country's highest bench.HO/The Canadian Press

Robert Janes, QC, is a partner with JFK Law LLP in Toronto and Victoria. He focuses his practice on Aboriginal law.

Justice Michelle O’Bonsawin’s nomination to the Supreme Court of Canada last week was an inspired act by the Canadian government. She doesn’t just bring much-needed perspective as an Indigenous person to the country’s highest court; she’s also experienced in criminal law and in the operation of the healthcare system. These skills and perspectives will be invaluable in helping to decide cases before the country’s highest court in the coming years.

The court decides fundamental issues in the lives of Indigenous people, more than most Canadians would ever know. Its rulings have touched on who counts as an Indigenous person, who is entitled to have status under the Indian Act, how Indigenous people govern themselves, and which government is (or is not) responsible for their affairs. Even in the area of criminal law, the court’s decisions disproportionately affect the lives of Indigenous people, given their over-representation in the criminal justice system and our prisons.

And in the next two years, the Supreme Court will tackle major cases around Indigenous issues. Those decisions will set out if and how Indigenous Nations can take control of child and family care in their communities; to what degree treaty governments can determine who is qualified to serve in their governments; and whether the Anishinaabe are entitled to a fair share of the wealth taken from their lands in Northern Ontario.

Now, when lawyers argue these cases before the SCC – whether for or against – the assertions made about Indigenous people and how the laws affect them will, for the first time, be made to an Indigenous person. Now, when the judges leave the courtroom, they will not only deliberate the fate of Indigenous people, they will deliberate with an Indigenous person who will bring direct knowledge of the lived experience of those most affected by the law. The fact that she is there – in the room where it happens – will also enhance the legitimacy of the court’s decisions in the eyes of the Indigenous people affected by them.

Canada has long recognized the need for many forms of diversity on the court. The Supreme Court, after all, is not just a collection of august individuals working in silos, but a decision-making body that is made better by having judges with a wide variety of origins, characteristics, experiences and perspectives. Indeed, by law, we must have three judges from Quebec. As the Supreme Court itself pointed out in the 2014 Nadon decision, a guarantee of three Quebec judges ensures that Quebec’s unique legal traditions and societal values are represented on the Court, thus protecting both the functioning and the legitimacy of the Court.

Canada has also established new conventions that expand on this guarantee of representation. We now require the appointment of judges from Ontario and the West, and a judge from Atlantic Canada. A respected court also needs to have a strong cohort of women.

Typically, the judges on the court come from a range of legal backgrounds, too: Some were academics, some were criminal lawyers, some worked in government, and some worked in private practice. The appointment of Justice O’Bonsawin now expands this range of life and professional experience to make the court an even stronger institution.

It is important to recognize Justice O’Bonsawin’s other expertise. Canadians are living through a healthcare crisis, and Dr. Brian Day’s challenge to British Columbia’s healthcare system over private surgical clinics is likely going to go to Ottawa for a final ruling in the next year or so. Cases about mental health, drug addiction and MAID are also likely to come before Court over the next few years. Justice O’Bonsawin’s experience as in-house counsel for the Royal Ottawa Hospital will be directly relevant for these cases.

Similarly, after recently losing its strongest criminal-law jurist with the retirement of Justice Michael Moldaver, the Court will likely see more cases dealing with the issues around the effects of COVID-19 on the criminal courts. In Justice O’Bonsawin, the Court gains a judge who has been in the judicial criminal law trenches since 2017 and through the worst of COVID-19′s shutdowns and delays in our court system. This kind of practical, on-the-ground experience will be vital for the court, particularly given the limited criminal law trial experience of the current bench.

In short, Justice O’Bonsawin’s selection is good for the court, and good for Canadians.

Michelle O'Bonsawin, the first Indigenous person nominated to sit on the Supreme Court of Canada, spoke with MPs and senators at a special committee hearing. O'Bonsawin was most recently a Superior Court of Ontario judge in Ottawa and identifies as a Franco-Ontarian and an Abenaki member of the Odanak First Nation.

The Canadian Press

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