SCC nominee ‘embargoes’ for five years her PhD thesis on extending Gladue principles beyond sentencing

By Cristin Schmitz

Last Updated: Wednesday, August 24, 2022 @ 4:33 PM

Law360 Canada (August 24, 2022, 10:06 AM EDT) -- Ontario Superior Court Justice Michelle O’Bonsawin, whose Supreme Court nomination is under scrutiny by parliamentarians on Aug. 24, is withholding from public view for at least five years her successful PhD thesis in law titled “A Principled Approach: The Mandatory Application of the Gladue Principles at Review Board Hearings.”

The product of some five years of research and analysis by the judge, who finished it after she joined the Ontario Superior Court in 2017 and who successfully defended it on Dec. 10, 2021, the thesis has been recommended unanimously for an academic achievement award (the highest accolade) by a University of Ottawa jury of three legal experts and a forensic psychiatrist.

The thesis contains original empirical analysis of review board decisions in Ontario, and puts forward the idea of requiring that the Gladue principles applicable in the sentencing and bail of Indigenous persons be applied in review board determinations in the forensic mental health system.

Justice Michelle O’Bonsawin

Justice Michelle O’Bonsawin

The judge has, however, barred from publication both the thesis and its abstract (which were deposited with UOttawa’s institutional repository Jan. 7, 2022) for the maximum initial allowable time of five years, i.e. until Jan. 10, 2027.

At that time she will have been with the Supreme Court for more than four years — a period during which legal questions around the idea of extending the Gladue principles into non-criminal areas of the law (e.g. into Indigenous child welfare cases) could come up in court — including the idea of requiring provincial review boards to apply the Gladue principles when considering the fate of Indigenous individuals who have been found by a court to be either unfit to stand trial or not criminally responsible on account of mental disorder (the subject of Justice O’Bonsawin’s thesis.)

Although an abstract of the judge’s doctoral thesis was initially publicly posted, it was removed at the judge’s request last January. The UOttawa website also appears to indicate that a PDF of the thesis was downloaded at least four times before it became “restricted.”

The UOttawa website also indicates that there have been 234 “page views” by the public — with most (157) occurring this month, after the information was removed and Prime Minister Justin Trudeau announced his historic nomination of Justice O’Bonsawin, 48, who is poised to become Canada’s first Indigenous Supreme Court of Canada judge in the coming days.

“At the author’s request, the abstract has been removed due to the confidential nature of the thesis. It will be added once the embargo period has passed,” the University of Ottawa’s website explains.

(In academia, an “embargo” is a restriction placed on a thesis or dissertation that allows only the title, abstract and citation information to be released to the public, while the full text of the work is kept hidden for a limited period of time — usually from one to five years. Most theses and dissertations are not embargoed, but some typical reasons for doing so include that the author wants to patent something described in the work; wishes to publish the work in whole or in part in the future and is concerned that making the work public will hamper doing so; or the thesis includes information covered by a nondisclosure agreement for a certain period of time, such as personal information, confidential company information, or intellectual property.)

Justice O’Bonsawin did not immediately respond to requests from The Lawyer’s Daily seeking a copy of her thesis and asking why she has chosen to withhold its public release

Joao Velloso, University of Ottawa

Joao Velloso, University of Ottawa

Her thesis supervisor, University of Ottawa law professor Joao Velloso, told The Lawyer’s Daily Justice O’Bonsawin’s thesis was adjudged “excellent” by the independent jury.

He said an academic embargo is not unusual, particularly when it involves a thesis written by a judge. “It’s a way to protect them regarding cases on the same topic that may be in front of them in the near future,” he said, noting that the restriction on publication can be “renewed” beyond the initial five-year period. “Not all the contents of this thesis, but ... some of our conclusions, ideally should not be disclosed, as she may need to decide on this in the near future,” he remarked.

However, a Supreme Court judge’s decision to suppress public disclosure of off-the-bench writings which could be relevant — directly or indirectly — to a matter that comes before the top court, at some point, cannot cure a possible question of apprehension of bias that might come up, suggested a senior civil litigator, who practises before the Supreme Court, and who did not wish to be named.

“Once you apply to be appointed to the Supreme Court of Canada, putting an embargo for five years on your thesis so that it can’t be reviewed, and lawyers can’t read it, and consider a challenge to you and whether you should be recused, that just strikes me as making the situation worse for you as a judge,” he remarked. “If it’s transparent, if it’s out there, in most cases, it won’t be the basis for recusal in any event,” he said. “And you know it just raises suspicion, if you’ve done a lot of work and expressed an opinion on the subject, and won’t let people know what the opinion is,” he said. “If you’ve expressed an opinion [off the bench], for example, that Gladue principles should be considered in not-criminally-responsible cases, and then you’ve tried to hide the fact that you’ve expressed that opinion, that seems to me to make recusal more likely.”

The lawyer added that articles written by academic lawyers or practising lawyers, before they’re elevated to the bench, are not, generally speaking a problem with respect to a judge’s impartiality. “Judges do change their minds, and the fact they’ve written an article and expressed an opinion doesn’t mean they can’t be convinced otherwise,” he said. Judges benefit from a presumption of impartiality.

(After The Lawyer’s Daily revealed Aug. 24 that the judge had embargoed her thesis, Justice O’Bonsawin was asked at a question-and answer-session with MPs and senators later that day, why the secrecy?

“My understanding is that to embargo a thesis is quite unusual,” remarked Conservative MP Kerry-Lynne Findlay, a former Canadian Bar Association president.

“I think it’s unusual because my understanding is not many judges actually go through the PhD process while they’re still sitting,” Justice O’Bonsawin replied. “Will [the embargo] be maintained? At this time, I can’t really tell you,” she said. “It depends as time moves forward, but it was a preliminary decision given the fact that I’m still a sitting judge at this time.”)

While Justice O’Bonsawin’s thesis, including her conclusions, are not public at this time, the judge has spoken publicly about the thrust of her doctoral research.

In a talk last November at the Canadian Institute for the Administration of Justice on the application of Gladue principles beyond the criminal law context, the judge noted that the Ontario Court of Appeal ruled in 2005 that review boards are not obliged to consider Gladue principles, but that doing so is highly recommended.

The judge said that in her PhD research she had analyzed 70 review board cases that mentioned Gladue principles and reports from 2006 to 2021. “I wanted to see, ‘are the boards being cognizant of the fact that these principles are out there?’ How do they affect a not criminally responsible [or] unfit accused? And unfortunately, my statistics are quite shocking,” she disclosed. “They only did so in 38 per cent of the cases ... when an actual Gladue report was created to be provided to the board.”

She said in other cases, only 27 per cent mentioned the Gladue principles. “It made me look into ‘well, what’s the core of this’? Is there a way to actually get this into a better stead? And I really think there is ... a possibility of getting the review boards to consider this.”

Justice O’Bonsawin also said she believes that Gladue principles should be considered in the context of Indigenous child welfare cases. “The answer, in my view, is yes,” she said, explaining that in 2016, there were 14,970 indigenous children in foster care — which equated to more than half the children in care being Indigenous. “I think that Gladue principles are very important because they give us the context,” she said. “ I understand that the primary consideration in child protection cases are the best interests of the children.”

But determining a child’s best interests involves looking at “the whole context” which, for an Indigenous child, can include whether or not there is intergenerational trauma because a grandparent or a parent attended residential school, the judge said. “What kind of an impact did that have on the immediate family? What kind of an impact did it have on the society where they were raised? Was the child raised with the parent, a grandparent? So I think that there is definitely the role to play. It doesn’t necessarily have to be by the provision of a Gladue report. I will take any letter that will provide me with that information because I think it’s important, as a judge who sits in these types of files, to really get a good understanding of the whole context, and part of that context, are the Gladue principles.”

In a column in The Lawyer’s Daily on access to justice written by Justice O’Bonsawin in September 2020, the judge noted that a Gladue report “is not just a sentencing report: it is often the first step in an Indigenous person’s healing. It examines the past and considers the systemic and background factors that may have played a role in bringing the offender before the courts. More specifically, a Gladue report addresses the offender’s micro-circumstances, such as community, family and addiction, in addition to macro-circumstances like colonialism and discrimination. This allows the judge to view the individual’s circumstances in the context of the systemic discrimination that affect Indigenous peoples in Canada.”

The judge wrote that even with the Supreme Court’s guidance, “we continue to struggle in applying the Gladue principles. We must ask ourselves a series of questions. Are we all properly playing our part in the judicial system? What is the impact on the lack of the appropriate use of Gladue reports? Are there other areas such as in the family law or civil law context that Gladue type reports could be useful? If we all work together in uniformity, I am hopeful that we can answer these questions that will lead to a better access to justice for Indigenous persons.”

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