Justice O’Bonsawin brings refreshing experience to highest court | Naomi Sayers

By Naomi Sayers

Law360 Canada (August 24, 2022, 12:36 PM EDT) --
Naomi Sayers
Naomi Sayers
Last week, it was news across my social media and I enjoyed seeing the positive words from other colleagues online.

The first Indigenous woman judge appointed to the Supreme Court of Canada.

Justice Michelle O’Bonsawin’s experience is publicly available for others to review. Her Honour’s experience includes mental health litigation which intersects with complex criminal issues involving not criminally responsible issues and being counsel to a hospital. Together with her judging experience in the Ontario Superior Court, Her Honour’s experience — both personal and professional — will be a welcomed addition to Canada’s highest court. I believe having someone with her experience is refreshing.

Yet, despite her professional experience, some comments I have seen online wonder whether this new justice will be, in one way or another, unbiased, competent and able to serve with an open mind. I have even seen some comments judge her experience without even fully reading or appreciating her biography. Some saying she has, though later correcting their error, no judging experience (refusing to read her biography altogether before commenting) and some saying she does not have the criminal law experience of the retiring justice. I wasn’t aware that judges replacing a retiring one had to be an exact duplicate.

This article’s commentary is not to speak about how an Indigenous woman judge being appointed to the bench is welcomed (because it is, and this doesn’t need repeating) or that this will help facilitate reconciliation in Canada. Those words have been spoken by others and I do not need to repeat them here.

What is important to acknowledge the individuals, who include other lawyers, who question whether the new justice will be unbiased, competent and able to serve with an open mind, all because Her Honour is an Indigenous woman.

Let me be clear — these same people who question whether the first Indigenous woman judge will be able to serve have not raised these questions for our country’s historically white, male-dominated bench for years prior.

I think it is important to acknowledge these misplaced, misguided questions.  

Will a new judge be biased? To a certain degree, all human beings are biased. So, yes, I agree that there has been some bias and historically our courts in Canada have served Canada’s colonial agenda. So, yes, there is some bias. Everywhere. Rhetorically speaking, our historically white-male dominated bench did not seem to be biased until women started to show up and now, an Indigenous woman. 

Will a new judge be competent? We all enter our new jobs and opportunities without knowing everything. To think that we know and understand everything that comes our way is the first mistake. So, I agree that there will be some learning that all judges go through. This is not unique to the first Indigenous woman judge. What is unique is that people are now questioning this openly and dangerously without understanding how our system works. I think our justice system can do a bit more around public education about how justices remain competent. Our judges are humans and humans are not perfect.

Will a new judge be able to serve with an open mind? This is type of questioning is an important one because it requires the person asking it to also have an open mind — one of understanding. I invite those people who are raising these questions to keep an open mind and to understand that the importance of this appointment and what it means for Indigenous people in this country.

Naomi Sayers is an Indigenous lawyer from the Garden River First Nation with her own public law practice. She sometimes teaches primarily on Indigenous rights and governance issues. She tweets under the moniker @kwetoday.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, The Lawyer’s Daily, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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