Incoming Supreme Court judge says top court ‘must work to move society forward in a progressive way’

By Cristin Schmitz

Law360 Canada (August 31, 2022, 10:32 AM EDT) -- Ontario Superior Court Justice Michelle O’Bonsawin, who Sept. 1 becomes the first Indigenous jurist to join the Supreme Court of Canada, said in her application for that post that, in her view, the top court “must work to move society forward in a progressive way yet remain respectful of the law.”

That is among the glimpses of her views and background the public has seen since Prime Minister Justin Trudeau announced Aug. 26 the historic appointment of Justice O’Bonsawin, a member of the Turtle clan of the Abenaki Odanak First Nation in Quebec, who describes herself as hardworking and “very aware” of her Indigenous identity, who she is and who she represents.

The fluently bilingual 48-year-old jurist who grew up, off reserve, in Hanmer, Ont., a small francophone community near Sudbury, Ont., has broken other ground, too. She is, for example, the only (ex) non-governmental in-house counsel in recent memory to be appointed to the top court, and is also the first trial judge in 59 years to be make the jump straight to the highest court (research from The Lawyer’s Daily indicates that in 1963 Justice Wishart Spence was similarly elevated from Ontario’s superior trial court. Direct appointments from the trial level (i.e. skipping appellate courts) have not been rare in the Supreme Court’s 147-year history, with at least three of its chief justices having done so.)

Justice Michelle O’Bonsawin

Justice Michelle O’Bonsawin

Nominated to the top court Aug. 19, Justice O’Bonsawin sailed through her Aug. 24 question-and-answer session with MPs and senators, at which time she shared some key information that the Liberal government had not provided, i.e. her age (she has 27 years until mandatory retirement), and also what the judge called “fun facts”: She likes to paint and golf in her spare time, and shares two sons with her lawyer-industrial engineer spouse whose name she did not disclose (Pierre Robichaud of Ottawa’s IP and business law boutique, Andrews Robichaud PC), as well as eight chickens, dogs Max, Pixie and Zorro, and a gecko named “Lizzy”.

Justice O’Bonsawin has disclosed some of her background and views in the detailed questionnaire she had to fill out to apply for the Supreme Court of Canada, as well as her educational talks and interviews while an Ontario Superior Court judge, and also during last week’s question-and-answer session with parliamentarians, which ended in a standing ovation, with Liberals, Conservatives, NDP and Bloc Québécois members all expressing support for her nomination. 

The only child of a machinist and a teacher, who taught her “the importance of working hard and doing my best, 100 per cent no matter what the task, and this is what I’ve always done,” Justice O’Bonsawin told MPs and senators she decided to be a lawyer at age 9, and stayed that course, despite a high school guidance counsellor’s suggestion that this might be aiming too high “for a little girl, a francophone who came from northern Ontario.”

“I thought to myself, ‘OK you just watch me now,’” she said during her opening statement before the legislators.

A committed lifelong learner with a strong belief that education is key to social progress, Justice O’Bonsawin earned her BA from Laurentian University in Sudbury, a French common law degree from the University of Ottawa, and a master’s in law from Osgoode Hall Law School (with a specialty in mental health). Last December, she also successfully defended her award-nominated doctoral thesis on the use of the Gladue principles in the forensic mental health context, earning a PhD in law from the University of Ottawa, which she completed while also working full-time as a superior court judge. (When she joins the top court, three of nine members will hold doctorates.)

“It was a good thing that I’m a really organized woman,” the judge smiled as she outlined her background. She said her passion for education includes mentoring others. She has participated in many educational sessions, including as a frequent speaker on mental health and Indigenous issues.

Justice O’Bonsawin said she was “very passionate” about Indigenous law and Indigenous issues as a law student, and had hoped to practise as a litigator in that area. But instead her career path led her to stints as counsel with Canada Post and general counsel to the Royal Ottawa Health Care Group.

She said she is continuing to study the Abenaki language.

“During my childhood, I didn’t have the opportunity to really learn my heritage because I was living off-reserve,” she explained. “However, since my teenage years, the linkage with my family and Odanak has become stronger.”

She said she remains close to her cousins and other extended family.

“I am very aware of my identity, my Indigenous identity, and who I am and who I represent,” she said.

Other passions for the judge include access to justice in the French language, and mental health. “I think it’s very important for people who have issues with mental illness to be seen and heard — it impacts so many in our population,” she said. “I would say that people who are affected by mental illness need to be supported throughout our community because at the end of the day, everyone is value added, and we can never forget that,” she said. “I would say we always have to remember our Charter values and make sure that we’re a very inclusive society.”

Justice O’Bonsawin also acknowledged that her knowledge of Quebec civil law is “very limited.” However, she said “I can commit in front of you and everybody here that if indeed I am appointed to the Supreme Court that I will learn, I will make it my duty” to acquire that understanding, she said. “I am a lifelong student. I like studying, and I learn every day.”

Noting that “I have to pinch myself from time to time to ensure that this just isn’t a dream,” Justice O’Bonsawin said she hopes that her “different path,” including her extensive research into the use of Gladue principles in the forensic mental health setting, and her experience in the legal areas of mental health, labour and employment, human rights and privacy and access to information will be beneficial and allow her “make a lasting contribution to the court.”

She said her eight years as general counsel with the Royal Ottawa Hospital — where she set up the legal department of one of the country’s foremost mental health-care, teaching and research hospitals — provided her with insight into people affected by mental health issues and who are often marginalized. “My experience has assisted me as a judge to review all cases with an open mind and sensitivity,” she said.

As a trial judge for more than five years, she said she dealt mainly with criminal law, family law and child protection. Her experience as an inside counsel who also litigated, mainly in labour and employment  matters, helped her when she became a judge, she said. “I hope I can be described as a judge who is well-prepared, listens attentively, is sympathetic, and makes judgments that are clear and solid.”

Asked what she hopes her eventual legacy will be, Justice O’Bonsawin told MPs and senators, she hopes people will say she was a hard worker, approachable, sympathetic and a good listener. “And hopefully they’ll say I make sound decisions.”

Justice O’Bonsawin has said in other public fora that she sees retired chief justice of Canada Beverley McLachlin as a role model due to that jurist’s “great wisdom, dedication, and poise” throughout her career.

Sharing advice she got as a lawyer from her own highly valued mentors, Justice O’Bonsawin said during a recent educational session, “first, ensure all your dealings with others are appropriate, even with opposing counsel. You only have one reputation and make sure you protect it because if you lose it, it is gone forever. Second, prepare every file like it is your first one. Preparation is the key to success.”

Asked to share some “key Indigenous teachings” that contributed to taking her to where she is today, Justice O’Bonsawin replied, “I think being humble, which is the first one.”

“It’s important to recognize our place where we’re at in the world because we have to work our way throughout life by remembering who we are, what our roots are,” she elaborated. “And no matter where we are in society, and how far we move up, we always have to remember where we come from.”

Justice O’Bonsawin added that “honesty has always been extremely important in my life. I’m a tell-it as-it is person. I don’t sugarcoat things. And I’ve really learnt that from my roots. How it’s important to be honest, and to be compassionate, and to love others how we want to be loved.”

Calling herself a “strong proponent” of talking about the Gladue principles — i.e. the guidance from the Supreme Court that sentencing judges must take into account an Indigenous person’s personal background and larger social context — Justice O’Bonsawin said it is “essential” that these principles be part of judicial education, and are applied by judges so that fair and fulsome decisions are made. “I’ve always said it’s extremely necessary, and I think it should be something that we’re constantly striving to achieve to be fair when [Indigenous] people appear in front of us,” she said.

Asked to describe her vision of the respective roles of the courts and legislatures, and their interaction, Justice O’Bonsawin said (French translation) that courts “have to be a bit more limited because we each have our roles to pay. You as parliamentarians play a legislative role. We, as jurists, well it’s different because we don’t insert ourselves so much in social norms. So there is a very clear distinction that can be made between the two. And as a judge, it’s important for me as someone who is impartial, who would look at a file and make a decision based on the … grounds of the matter. So I’ll just follow my path, and I think you should follow yours.”

Asked about “legal pluralism,” and how her Supreme Court nomination helps “promote and shape” Indigenous laws in Canada, Justice O’Bonsawin responded “I can tell you I’m a judge first and Indigenous person and a mother and a Franco-Ontarian afterwards. So I think that what’s important for me to remember is my roots and the voice that I bring — my life experience — but also my background as someone who has worked in mental health law, Indigenous issues, and also in labour and employment, and human rights.”

Justice O’Bonsawin said she couldn’t comment much more because such issues are on their way to the Supreme Court. “But I can tell you, I have my voice as one of nine judges, hopefully.”

Asked to comment on how the distinct life experiences and perspectives of Supreme Court judges should inform their work, given their responsibility to be impartial, Justice O’Bonsawin elaborated that at the end of the day, the judge’s first duty is to be impartial. “And our backgrounds all inform how we live and how we perceive things, and I don’t think we can get away from that,” she said.  “But I think that it is our obligation to be impartial. Our backgrounds will sometimes educate our decisions, but I don’t think they are necessarily the … driving force that lead us to fall a certain way on matters that are before us.”

Asked by NDP MP Lori Idlout, an Inuit lawyer who represents Nunavut, how Justice O’Bonsawin, as an Indigenous judge, will work with the Supreme Court to create a pluralistic legal system that reconciles with Indigenous laws, “which have purposefully been ignored and hidden”, i.e. that Indigenous laws “are seen and heard,” Justice O’Bonsawin replied, “I am a voice at the table.”

Justice O’Bonsawin said she lives her Indigenous traditions.

“I bring these traditions and my heritage to the table,” she explained. “I am, hopefully, a voice of nine, where we make our decisions based on the file in front of us and the facts and the law as it’s presented. But I can tell you that I do bring my voice as an Indigenous person and that’s what I have to offer in addition to my own experiences, and also my work experience.”

Asked what challenges she faced in applying for the federal bench, Justice O’Bonsawin replied, “I have to say, to be honest, I didn’t face any challenges. I met the requirements because I had my 10 years of experience as counsel.”

She said it was also helpful that she was a bilingual lawyer who would be sitting in a bilingual city. “And I had something I think a bit different to bring to the court, with my mental health experience and my criminal background in forensic mental health. So to be honest, I didn’t face barriers.”

Asked what the judge can do to give hope and encouragement to young girls who also aspire to great careers, Justice O’Bonsawin said “I think it is to do the best job that I can.”

“Miracles happen,” Justice O’Bonsawin remarked. “I’m here today. I was a long shot.”

Asked how she handles the pressure of being “the first” and the pressure to be perfect and inspire others — particularly since she carries the hopes and aspirations of so many people — Justice O’Bonsawin said she spends time with her family on weekends, paints and plays with her dogs. “I have to admit, I’m far from perfect,” she said.

“It is not always easy being a first because you’re under a microscope at times,” she admitted.

“But I have learned how to go about it, and it is to be hard-working, to do the best I can with my background and my experience, to remain humble, listen well, and be collegial with others, because at the end of the day, if I do get this nomination, [the job] is working with eight other individuals on a day-in, day-out basis,” she said. “I’m in it for the long haul, so I definitely want to get along and play well with others. And those are the things I will do to make sure that, hopefully, I’m successful in my role there.”

In her application form for the Supreme Court of Canada (she was one of 12 applicants — six of whom were interviewed), Justice O’Bonsawin said the role of a judge in a constitutional democracy like Canada “is pivotal, wide-ranging and should be responsive to change.”

“It is crucial that providing access to justice occurs in a politically neutral fashion and unbiased by all external influences,” she wrote. “Nevertheless, Canada should not be isolated from an ever-rapid evolution of technology and social values and must strive to be a beacon for others as to how a constitutional democracy should be protected and fairly applied to all.”

Justice O’Bonsawin said the role of a judge in a constitutional democracy “requires them to always apply impartiality, act independently and with integrity, and remain cognizant of the pillars of the Constitution and the Canadian Charter of Rights and Freedoms. A judge must put aside their preconceived notions regarding all matters, groups or associations in order to ensure that they are objective throughout the process. They must be sensitive to the legal, factual and social context surrounding the matters before them. A judge must ensure that their decisions are always consistent with the rights enshrined in the Constitution and the Charter.”

Justice O’Bonsawin said that during their decision-making process, a judge must recognize that, under s. 15 of the Charter, every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

“Equality is not treating everyone the same but treating everyone with fairness and equity taking their differences into account,” she said. As well, “s. 16 of the Charter mandates the official recognition of languages. According to law, every Canadian citizen has the right to be heard in either official language, French or English.”

Justice O’Bonsawin endorsed the Canadian “living tree” approach to the Constitution and expressly rejected American-style originalism. “A judge must continuously interpret the Constitution as a living and breathing document that is reflective of the beliefs and aspirations of generations since its original implementation,” she wrote.

“The Constitution should not be used as an impediment to individual rights. It must be interpreted in a manner that addresses issues that were not foreseen when the Constitution was first drafted. However, the main objective of the Constitution is to treat people equally under the law and the only way a judge can do so is to always be aware, open-minded and to interpret it as an ever-evolving document for those it seeks to protect as well as those who seek it for protection.”

Justice O’Bonsawin said following the principle of stare decisis provides predictability and consistency, but the Supreme Court of Canada must also “work to move society forward in a progressive way yet remain respectful of the law,” she wrote. “Future generations are part of the audience as current decisions will have an impact upon them. This approach helps guarantee a society that continues to be respectful of the law and reflective of ever-emerging awareness of inclusiveness that continues to move our Canadian society to evolve to the betterment of our citizens and our nations.”

Asked what she regards as her most significant contribution to the law and pursuit of justice in Canada, Justice O’Bonsawin cited “my effort to assist all involved in the justice and mental health system, with a particular emphasis on Indigenous Peoples. I strive for the judiciary to clarify the legal issues in order to have an inclusive and compassionate legal system for First Nations, Inuit and Métis.”

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