On September 1, Michelle O’Bonsawin of Odanak First Nation became the first Indigenous judge to serve on the Supreme Court of Canada. The fluently bilingual 48-year-old Abenaki was raised off-reserve in Hanmer, a small francophone community in northern Ontario.
“I believe my experience as a francophone First Nations woman, a parent, a lawyer, a scholar and a judge provide me with the lived understanding and insight into Canada’s diversity because I and my life experience are part of that diversity,” stated O’Bonsawin in her application questionnaire.
O’Bonsawin had previously become the first Indigenous Ontario Superior Court judge in 2017. As general counsel for the Royal Ottawa Health Care Group for eight years, she developed an expertise in legal issues related to mental health and conducted significant research into Gladue principles in the forensic mental health system.
“It is crucial that our legal system recognize and support efforts to sensitize the general public regarding mental illness via their judicial behaviour and understanding as articulated in judgments,” she said. “Quickly identifying mental health problems at the start of any legal proceeding would help individuals access the appropriate treatment they need.”
Prime Minister Justin Trudeau announced his nomination of O’Bonsawin to the county’s highest court August 19, after an open, non-partisan selection process. Last year, Mahmud Jamal became the first person of colour appointed to the court.
In 2020, the National Association of Women and the Law (NAWL) sent Trudeau a letter, endorsed by dozens of organizations, advocating for the Supreme Court’s vacancies to be filled by candidates from “equality-seeking communities.”
Considering the over-representation of Indigenous people in the criminal justice system, NAWL was “heartened” to see a nominee with specific expertise related to Gladue principles, which considers the unique experiences of Indigenous people in judicial decisions.
O’Bonsawin’s appointment was celebrated by Indigenous advocates as a victory for inclusivity. Murray Sinclair, the former senator and chair of Canada’s Truth and Reconciliation Commission, shared that he had advised O’Bonsawin during her application process and asserted it was “long past due that the court has a seat for an Indigenous Justice.”
“Justice O’Bonsawin will be an important voice at the Supreme Court, given her deep knowledge of issues related to Indigenous peoples in Canada,” stated Sinclair. “The court is made stronger, and our decisions are better, when there are diverse perspectives where they are needed most.”
Several First Nations offered their congratulations, asserting the nomination signified a monumental shift towards true reconciliation and better outcomes for Indigenous communities. The Mississaugas of Scugog Island First Nation stated, “The diversification of our institutions is critical to strengthening the voice of Indigenous people in this country.”
“Representation of Indigenous people is important at every level of government and the justice system, to ensure that issues are examined through a sensitive and unique Indigenous lens,” said Mohawk Council of Akwesasne Grand Chief Abram Benedict. “It is also inspirational and motivational for young people – and women – of all First Nations communities to see a person like them climb the ranks of success.”
Her family name, which means “pathfinder” in Abenaki, was made famous by her cousin, renowned filmmaker Alanis O’Bomsawin. Another cousin, Chief Richard O’Bomsawin of the Odanak First Nation was elated by her nomination, declaring, “She’s definitely the person for the job.”
O’Bonsawin told MPs and senators she decided to become a lawyer at age nine, undeterred by a high school guidance counsellor’s suggestion she might be aiming too high. While she felt disconnected from her heritage during childhood, she joined the Indigenous Law Students Association when she attended law school at the University of Ottawa and started getting involved in Indigenous cases.
Questioned about the Indigenous teachings that shaped her, O’Bonsawin responded, “being humble … we always have to remember where we come from.” She is studying Abenaki but doesn’t yet consider herself a fluent speaker. “It is not always easy being a first because you’re under a microscope at times,” she admitted.
With two major cases about to come before the Supreme Court that could potentially impact the future of Indigenous political autonomy, it’s hoped her perspective can help expand minds among the court’s nine judges. These judges representing the country’s four major regions work collaboratively on deciding issues of the highest national importance.
In early December, the court is scheduled to hear Quebec’s appeal that the federal Bill C-92, which concerns the right of Indigenous peoples to write their own laws for child-welfare services, violates provincial jurisdiction. The federal government affirmed this right to self-government two years ago.
Another case from Yukon with no date yet determined concerns an Indigenous community’s right to set a residency requirement for members of its council. These two cases together will force the Supreme Court to confront the role of Indigenous laws and legal orders that pre-exist the country’s founding 1867 Constitution.
O’Bonsawin’s appointment comes at a time when more Indigenous people are assuming important roles in Canada’s institutions. On September 22, Dene (K’ashógot’įne) judge Shannon Smallwood became the first Indigenous person to be named chief justice of the Northwest Territories Supreme Court.
While some policy analysts are skeptical about how much O’Bonsawin’s appointment will impact constitutional change in what remains a colonial institution, her legal and personal background will certainly enhance the court’s diversity. As the most recognizable symbol of Canada’s justice system, reflecting society’s diversity is one of the court’s three stated “institutional needs.”
“It’s very difficult to have confidence in the ability of the court to pronounce on those issues when you don’t have any individuals at the court who spent their lives working in Indigenous laws, customs or traditions,” commented Indigenous Bar Association president Drew Lafond. “Hopefully with Michelle’s appointment, we can begin to change that.”
by Patrick Quinn, Local Journalism Initiative Reporter