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Michelle O'Bonsawin nominated to Supreme Court, making her first Indigenous justice

OTTAWA — Prime Minister Justin Trudeau nominated Ontario judge Michelle O'Bonsawin to the Supreme Court of Canada on Friday, making her the first Indigenous person poised to sit on the country's highest bench.
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Prime Minister Justin Trudeau appointed Ontario judge Michelle O'Bonsawin to the Supreme Court of Canada on Friday, making her the first Indigenous person poised to sit on the country's highest bench. O'Bonsawin is shown in this undated handout photo. THE CANADIAN PRESS/HO-PMO

OTTAWA — Prime Minister Justin Trudeau nominated Ontario judge Michelle O'Bonsawin to the Supreme Court of Canada on Friday, making her the first Indigenous person poised to sit on the country's highest bench. 

O'Bonsawin comes to the court after spending five years as a judge at the Ontario Superior Court of Justice in Ottawa, where she was also the first Indigenous woman to hold that position.

Before that, she spent eight years serving as the Royal Ottawa Health Care Group's general counsel. She has also taught law at the University of Ottawa, and earlier worked in legal services for the RCMP and Canada Post.

Born in Hanmer, Ont., just outside Sudbury, O'Bonsawin identifies as a bilingual Franco-Ontarian and an Abenaki member of the Odanak First Nation, according to a biography released by the Prime Minister's Office. 

The First Nation's elected chief, Richard O'Bomsawin, said news of her appointment has made him proud. 

"She's definitely an inspiration to the nation. She's definitely an inspiration to other up-and-coming native people," he said in an interview. "She's truly showed native people that anything is possible. We just have to keep struggling and trying."

O'Bomsawin said he knows the newest Supreme Court justice personally, describing her as "a really good person" who put in a lot of hard work and deserves the opportunity. He and O'Bonsawin belong to the same family but are not closely related, he added.

Praise from O'Bonsawin's appointment came from outside her home community as well.

"Canada's top court has always been missing an individual to interpret Canadian laws through an Indigenous lens — but not anymore," Elmer St. Pierre, the national chief of the Congress of Aboriginal Peoples, said in a statement Friday. 

"Indigenous people have long faced discrimination, racism and prejudice in Canada’s justice system, leading to the overrepresentation of our people in courts and prisons. Governments must continue to ensure Indigenous voices help create laws, interpret and enforce them."

The congress said it is "thrilled" about the decision — the same word used by the Canadian Bar Association, which said O'Bonsawin will be a "great asset" for the court.

Murray Sinclair, a former senator and former chair of the Truth and Reconciliation Commission, said in a statement O'Bonsawin will be an "important voice" on the court.

Sinclair said he advised O'Bonsawin on her application for the job and described her as "immensely qualified" for the position. 

"It is long past due that the court has a seat for an Indigenous justice, one who has seen firsthand the impact of colonialism on Indigenous communities," he said. "The court is made stronger, and our decisions are better, when there are diverse perspectives where they are needed most."

RoseAnne Archibald, the national chief of the Assembly of First Nations, tweeted that O'Bonsawin's nomination is "an important appointment at a critical time" and congratulated the incoming justice for making "#HERstory."

O'Bonsawin will fill the vacancy left by Justice Michael Moldaver, who is set to retire Sept. 1 a few months before he turns 75, the court's mandatory retirement age. 

Last year, Justice Mahmud Jamal became the first person of colour to join the Supreme Court's ranks.

The requirement for English-French bilingualism has been cited as a factor that previously complicated efforts to find Indigenous candidates for the court amid long-standing criticism about diversity on the bench.

Drew Lafond, president of the Indigenous Bar Association, said despite three seats being set aside for Quebec judges, the court has also never reserved a spot for somebody to represent Canada's population of Indigenous Peoples.

The process that led to O'Bonsawin's nomination was the first to include Indigenous representation on the Trudeau-era Independent Advisory Board for Supreme Court of Canada Judicial Appointments. Lafond's association successfully nominated lawyer David Nahwegahbow to join the committee earlier this year. 

When it comes to matters that affect Indigenous Peoples, "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," Lafond said. "Hopefully with Michelle's appointment we can begin to change that."

Polsia Carrozza and Brooke Wakegijig, both executive members of the Indigenous Law Students Governance at O'Bonsawin's alma mater, the University of Ottawa, said they were excited — though not surprised, since her name's been "floating around for a while," as Carrozza put it — when they heard news of the nomination Friday morning. 

"The worry with these kinds of big appointments is, 'are they just ticking a box? Is this a diversity hire?' That’s always the fear, that she’s just there for Justin Trudeau to say that he did this and he gets to put that on his track record," said Carrozza.

But the incoming justice is "unbelievably qualified" and her nomination is a much-needed first step, said Carrozza, who is Métis and a third-year student in the same French common law program that O'Bonsawin graduated from. "It’s taken a long time for Indigenous people in general, but especially Indigenous women, to be taken seriously and to be trusted in positions of authority."

Wakegijig, a second-year law student from Wiikwemkoong First Nation in northern Ontario, said she feels a little cynical about how dramatically things will change with one Indigenous voice at the table. 

Still, she's enthusiastic about the experience O'Bonsawin brings to the court. 

"It's a good day for Indigenous women, and women in general, and it's a good day for people who experience mental health issues that are involved with the law, and Indigenous peoples involved in the criminal justice system."

Before O'Bonsawin begins in the new role, the House of Commons justice committee is expected to meet next Wednesday to hear from the justice minister and the chairperson of the independent advisory board for Supreme Court appointments. O'Bonsawin will then appear before the committee and members of the Senate for a question-and-answer session. 

The hearing is not expected to prove controversial, with Canadian Supreme Court nominees rarely facing the same dramatic scrutiny as their counterparts in the United States. Conservative justice critic Rob Moore issued a statement on Friday congratulating her on her nomination.

O'Bonsawin's biography says she has "developed a thorough understanding of legal issues related to mental health" and "performed significant research regarding the use of Gladue principles in the forensic mental-health system." 

She successfully defended a PhD thesis at the University of Ottawa earlier this year about the application of Gladue principles, which outline ways for judges to consider the unique experiences of Indigenous Peoples. 

In an online post last year, the Canadian Institute for the Administration of Justice quoted O'Bonsawin, one of its board members, saying that her role model is former Supreme Court chief justice Beverley McLachlin. 

A required questionnaire posted by the Department of Justice upon her appointment to the Ontario Superior Court elaborated on her experience with mental-health law.

"I would like to ensure that the stigma associated with mental health is reduced and one day completely eliminated. This applies not only to the general population but also to the judiciary," O'Bonsawin wrote. 

"Quickly identifying mental-health problems at the start of any legal proceeding would help individuals more quickly access the appropriate treatment they need to improve their mental health and to become productive members of society."

She also wrote about her appreciation for the situation faced by Indigenous Peoples and described being discriminated against and made fun of as a young Indigenous girl growing up off-reserve.

She said her experience as a francophone Indigenous woman, as a mother and as a professional in the mental health and Indigenous law fields is "a clear example of the rich diversity that makes our country so special to me and my family." 

Answering a question about the appropriate role of a judge in a constitutional democracy, O'Bonsawin wrote that judges must interpret the constitution as a living document and "demonstrate great skill in striking the delicate balance between the needs of the public and the rights of the individual." 

She said judges must be politically neutral, without external influence and always keep in mind that decisions "may help protect vulnerable populations, those that cannot speak for themselves and are often exploited."

In a video posted to the University of Ottawa website, O'Bonsawin described wanting to become a lawyer as early as the age of nine and pushing back when a high-school guidance counsellor said it might not be in the cards for someone from a small northern Ontario community. 

"No, this is what I'm going to do," she told him then. "Watch me." 

This report by The Canadian Press was first published Aug. 19, 2022.

Marie-Danielle Smith, The Canadian Press

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