Justice O’Bonsawin: Carrying the Burden of Four Centuries

“No matter where we are in society, no matter how far we move up, we always have to remember where we come from.” – Michelle O’Bonsawin (The Globe and Mail, August 2022)

Introduction

On September 1st, 2022, Michelle O’Bonsawin was sworn into office at the Supreme Court of Canada (“SCC”). Justice O’Bonsawin was appointed by Prime Minister Justin Trudeau on August 26th, 2022, after a lengthy review process initiated by the announcement of Justice Moldaver’s retirement on May 19th, 2022 (The Globe and Mail, August 2022). That process involved eight non-partisan members of the Independent Advisory Board for Supreme Court of Canada Appointments, who created a shortlist of candidates for the Prime Minister to choose from (The Globe and Mail, August 2022). As she was sworn in, Justice O’Bonsawin stood at the center of a watershed moment in Canadian history, becoming the first Indigenous person to serve as a Justice on Canada’s highest court. 

Humble Beginnings

Justice O’Bonsawin was born in 1974. She grew up in a Francophone community in Hanmer, Ontario, which is part of the Greater Sudbury Area. Her father was a machinist and her mother was a school teacher. She is an Abenaki member of the Odanak First Nation (The Globe and Mail, August 2022). In her questionnaire, Justice O’Bonsawin recollected on her experience growing up as a working-class Indigenous woman in a settler community:

“My childhood was not a privileged one. In addition to having a First Nations father, ours was a working-class household. It was expected that I would contribute in real, financial terms and that no work was not worthwhile. As such, I did whatever jobs were available to me—babysitting, retail and service” (Questionnaire for Judicial Appointment).

Suffice it to say, Justice O’Bonsawin did not grow up in the way many of her predecessors on the SCC did. She was not white, not male, not from a major metropolitan city, not from a family of white-collar professionals, and not a settler. Her resistance to the ‘norm’ is a common thread throughout her career.

The Settler’s Academy

After completing her high school education, Justice O’Bonsawin attended Laurentian University in Sudbury, Ontario, completing her Bachelor of Arts in the spring of 1995. While for many who grew up in rural Indigenous communities, as a result of colonial-era systems of extraction, dispossession, and underfunding depriving Indigenous peoples of the tools necessary to pursue higher education, this may have been considered the ceiling of her professional growth, Justice O’Bonsawin was determined to climb even higher, go even further, and leap over even more seemingly insurmountable barriers. She began her legal education in the summer of 1995 at the University of Ottawa Faculty of Law (Common Law Program). It was here, Justice O’Bonsawin explained, that she began to fully embrace her Indigeneity outside of her community:

When I moved to Ottawa to study law, my world as an Indigenous person changed. Many recognized my family name (which actually means Pathfinder in Abenaki) as a renowned Indigenous name, which was made famous by a cousin, who is a filmmaker and an Order of Canada recipient, Alanis O’Bomsawin. I joined the Indigenous Law Students Association and began to get involved in Indigenous cases (Questionnaire for Judicial Appointment).  

During law school, Justice O’Bonsawin committed herself to public interest law. She worked as a Caseworker at the University of Ottawa Faculty of Law’s Legal Aid Clinic and Aboriginal Legal Services in Ottawa. She also spent her summers in between as a Researcher for the Royal Canadian Mounted Police. Before even beginning her legal career, Justice O’Bonsawin was gaining valuable exposure to how marginalized, often impoverished communities—including Indigenous Canadians—were navigating the criminal justice system.

An Unconventional Professional Pathway

Most 2Ls in Canadian law schools will tell you that the default path from law school to one’s early legal career crosses through the financial center of any major metropolis in the country. In Ontario, that center is Bay Street, where many find themselves practicing corporate/commercial law after completing the licensing process. If your interests were more concentrated in the area of criminal or constitutional law, your alternative option would be to work for the Ministry of Attorney General or one of many criminal defence firms housed in Toronto’s slick, shining glass towers in the downtown core. Justice O’Bonsawin decided to chart her own path, beginning her legal career as in-house counsel at Canada Post, where she focused on labour & employment law and human rights litigation. During her nine years at Canada Post, Justice O’Bonsawin also taught Les autochtones et le droit (“Indigenous Peoples and the Law”) for two semesters at her alma mater. From 2009 until her appointment to the bench, Justice O’Bonsawin served as General Counsel at the Royal Ottawa Health Care Group (“The Royal”), where, among other things, she specialized in mental health law. She explained its importance to her understanding of peoples experiencing mental health issues:

My extensive experience in legal issues related to mental health provides me with a window into a group of individuals that make up part of Canada’s diversity and variety. It also provides me with a glimpse into their unique perspectives. Thanks to my work at the Royal, I deal every day with mental health issues by meeting with psychiatrists, patients and their family members, and community groups. I regularly encounter diverse points of view from people who are suffering from or affected by mental health issues (Questionnaire for Judicial Appointment).

Passion Matures into Philosophy

While working at The Royal, Justice O’Bonsawin continued to build on her expertise in mental health law, completing a Masters of Law in 2014 at Osgoode Hall Law School, with a particular focus on the many ways mental health issues appear in our justice system. Her thesis, Treatment Orders in the Mental Health Context – Do They Really Work? drew on her practical experience and expertise with the doctrinal law surrounding mental health to deconstruct existing practices in the criminal justice system.  In 2016, Justice O’Bonsawin began her Doctorate in Law at her alma mater, the University of Ottawa Faculty of Law. Five years later, she would successfully defend her dissertation, A Principled Approach: Mandatory Application of the Gladue Principles at Review Board Hearings (which has been nominated for the Governor General’s Gold Medal Award), proposing an expanded scope of application for Gladue principles which currently guide sentencing decisions in criminal proceedings. Beyond her formal education, Justice O’Bonsawin deepened her understanding of mental health in the criminal justice system by involving herself in various pro bono activities and continuing legal education opportunities that helped her build a more robust understanding of this unique pocket of the justice system.

From the Bar to the Bench

In May 2017, Michelle O’Bonsawin was appointed as a Judge at the Superior Court of Justice in Ottawa. Within her role, she presided over criminal prosecutions of indictable offences, appeals of summary convictions, and was a panel member at the Divisional Court to decide on administrative appeals. It was here that Justice O’Bonsawin brought in her comprehensive knowledge of both mental health law and of the Indigenous experiences in the criminal justice system to oversee proceedings involving Gladue principles and the Ontario Review Board. After five years on the bench, Justice O’Bonsawin applied to the Supreme Court of Canada. In one of the answers to her questionnaire, Justice O’Bonsawin summed up, with concision and clarity, her case for being appointed to Canada’s court of last resort:

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. My background is a clear example of the intersectional diversity that makes our country so special to me and my family. My experiences have taught me that while discrimination is an ongoing reality in Canada, my abilities allow me to contribute to our country and assist us to be a more inclusive society, not to mention one that is fair and just to all (Questionnaire for Judicial Appointment). 

A First for First Nations

On August 26th, 2022, after reviewing each shortlisted candidate, Prime Minister Trudeau chose Justice O’Bonsawin, appointing her to the SCC. Nearly 150 years after its inception, the Supreme Court of Canada finally includes a justice from a First Nations community (The Manitoulin Expositor, August 2022). A long, overdue development that illustrates just how slow and frustrating the march towards Reconciliation has been in Canada.

Minister of Justice David Lametti, when asked about his thoughts on Justice O’Bonsawin’s appointment, said that “it is extremely important that Indigenous Peoples be able to see themselves in, what are quite frankly, colonial institutions” (The Globe and Mail, August 2022). Justice O’Bonsawin herself, when asked about the magnitude of having an Indigenous person finally sit on the SCC, was—as is often the case with members of the bench—tempered in her response:

I’m a judge first and an Indigenous person and a mother and a Franco-Ontarian afterwards” (The Manitoulin Expositor, August 2022).

Nevertheless, she made clear that her identity will fundamentally shape her approach to her new role:

I am a voice at the table. I bring my background as an Indigenous mother of two sons and everything that comes with all of my background. What I can tell you is I live my traditions. I bring these traditions and my heritage to the table (The Manitoulin Expositor, August 2022).

The Burden of Four Centuries

Settlers first made contact with Indigenous people in Canada in 1603, specifically in the Maritime region of the country (The Canadian Encyclopaedia, June 2021). For the next four hundred years, those Indigenous peoples and their succeeding generations would be subject to war, domination, subjugation, colonization, and the systematic erasure of their laws, languages, cultures, and societies. And while there have been attempts since then to rectify many of the wrongs committed against Indigenous Peoples by settlers, there remains much more work to be done. Justice O’Bonsawin’s appointment to the SCC is only twenty-five years removed from the closure of the final Residential School in Canada, where First Nations, Métis, and Inuit children were subjected physical, emotional, and sexual abuse at the hands of school faculty, administrators, and religious leaders in government-sponsored schools (CBC, June 2021). 

She is carrying a heavy burden on her shoulders, shaped by the perceptions and expectations of Indigenous peoples and Canadians at large, who are waiting to see how her experience with Gladue principles, within mental health legal contexts, and as an Indigenous woman, jurist, and scholar, will inform her judicial decisions. They will expect her to spearhead well-needed reconfigulrations of legal doctrine, whether in Aboriginal title, Treaty interpretation, or s.35 jurisprudence, and give greater weight to Indigenous sources of law. It is important for us to recognize that expecting the world of Justice O’Bonsawin on Indigenous or mental-health related issues would be a disservice to her agency and individuality and an unfair shifting of responsibility away from the structural powers that continue to entrench disparities in Indigenous wealth, health, safety, and security. These are structural powers that lie outside Justice O’Bonsawin’s prerogative. It is also important for us to be mindful of the fact that she is one of nine judges on the SCC, and the Court’s ultimate direction will bend based on consensus rather than individual will. 

Finally, the significance of Justice O’Bonsawin’s appointment must not be siloed to merely her Indigenous identity, but must include recognition of the many other facts of her identity which remain sparsely represented in the judiciary: as a working-class woman, as a member of a rural community, as a trial court judge, as an in-house practitioner, as a mental health expert, and as a trilingual jurist. These identities must be appreciated as they are bundled, each having an effect on the other and, at their interstices, generating a unique experience interfacing institutions and agents of power. Justice O’Bonsawin may welcome the lofty expectations, but it is our responsibility, as settler Canadians, and particularly settler members of the legal profession,  to ensure we provide her the same flexibility, benefit of the doubt, and scrutiny, as any other appointment to the new Court.