After a month as a Justice of the Supreme Court of Canada, Michelle O’Bonsawin talks to Evan Solomon about why she wants people to see her first as a judge and as the first Indigenous judge to serve on the Canada’s highest court, then.
In the interview, O’Bonsawin also discusses the changing composition as well as the politicization of the Supreme Court of Canada, and the legal challenges facing the courts and the country’s justice system in general.
Below is a full transcript of the interview that aired on Sunday during CTV’s Question Period. Transcript has been edited for clarity.
Evan Solomon: It is an absolute pleasure to welcome you to the program. Thank you very much for sitting with us.
Michelle O’Bonsawin: “Thanks a lot.”
Evan Solomon: I want to start with something you said when you appeared in your question and answer session with parliamentarians. Let me read it to you. You said, it was in August, “I am a judge first and an aboriginal person and a mother and a Franco-Ontarian second.” I am a judge first. Was that an intentional comment you made given all the news about you that you are a historic first as the first Indigenous on the bench?
Michelle O’Bonsawin: ” Absolutely. Because I think what is important for people to know is the judges of our court, we are impartial. before the tribunal ? So I was, I guess I would say strategic when I answered the question to say I’m a judge first because I’m impartial.
“But as the first Indigenous judge to be appointed to the Court, I think it’s important for people to understand that I have my own background that is relevant to me as a Franco-Ontarian and Indigenous woman and I brings this perspective to the Court which is unique.”
Evan Solomon: But it’s interesting that you want to send that signal. Was there or is there pressure perceived as a first? … Is there a perceived pressure that now you represent a certain community, now you have to represent and kind of cross that line in an almost militant position?
Michelle O’Bonsawin: “Well, sure. I think it’s always a question, ‘Is she going to be our spokesperson on the bench?’ This is one of the issues that everyone is talking about. What I can say is that I will do my best in terms of the cases that are brought to court. I come under the microscope as being one of the first, but ultimately I’m impartial and will base my decision on what’s presented.”
Evan Solomon: Is it also a little embarrassing that you are even asked these questions? Frankly, because it’s like, ‘Oh, you haven’t asked the person of Irish descent if they’re…so it’s like, ‘Why do I have to make sure that I have to strategically say that my prejudices will in no way distort the views, but you didn’t ask him that? Is this part of the problem?
Michelle O’Bonsawin: “Oh, absolutely. I think so. Because at the end of the day, if you’re a man sitting on a case involving women’s rights, is there a bias on that front, isn’t- Isn’t it? So of course that’s a question to ask.”
Evan Solomon: I guess the other question is what took so long. The first woman was appointed in 1982, the first Jewish judge in 1970. The first person of color last year, now the first indigenous person on the court. What took so long? And what will change because we now have a court that reflects our country much more faithfully than before?
Michelle O’Bonsawin: “I really don’t know what the answer is. I think there’s been a shift in our society where people want to look at a bench that looks like them. I think there’s been a lot of activism from from the different groups, so it may I’m really not sure, but it’s nice to see variety on the bench.”
Evan Solomon: It’s nice to see a bench that reflects the country. What’s the biggest challenge, I mean the Supreme Court is kind of this awesome institution. People are a little nervous, people are nervous about talking to you now, aren’t they?… What is the biggest challenge facing the court?
Michelle O’Bonsawin: “I think access to justice is still something that exists. I hope there has been an evolution because of the pandemic. So now that we have electronic means to connect to the Court, I “Hope that’s better. One of the challenges that we face at all levels of justice, are unrepresented litigants, because it’s difficult for them and for us to deal with these kinds of issues.”
Evan Solomon: The other problem for the Court, and this goes back to when Beverley McLachlin was the leader, is the politicization of the courts. You see it all the time in the United States. How concerned are you about the politicization of the courts — that people are confused that the courts are going to start bleeding into areas that are really within the purview of elected politicians?
Michelle O’Bonsawin: “I said it during my question period. We have totally separate roles, we are not like other countries. We are unique. We have a system that was put in place in 2016 for the appointment of different candidates. So it’s not a pass type of party-based nomination. I think we’re quite different from others and I don’t think that’s our role. Let the politicians do their job and we’ll do ours .
Evan Solomon: Although you see the politicization of the Bank of Canada, as it is happening now. The Court is a subject of political debate in which, I suppose, it is not bad that the decisions of the Court are debated?
Michelle O’Bonsawin: “Yeah, at the end of the day, we’re independent and I would definitely say we don’t fall into the kingdom like you see in other countries.”
Evan Solomon: One of the issues you talked about is the incarceration rates of aboriginal Canadians, people of color, black Canadians in particular. What’s at the heart of it? Like when you watched this, you were in the justice system, is this systemic, institutionalized racism?
Michelle O’Bonsawin: “I think there’s a mix of different things. I think there are societal issues that come into play. You have the whole impact of intergenerational trauma from residential schools, so there are issues social issues associated with this, and this has led to a very high number of Aboriginal incarcerations.
“We are less than 5% of the population, but when you look at the latest report from Dr. (Ivan) Zinger (the Correctional Investigator of Canada), I think Aboriginal women were almost 50% and men over 30 %. So it’s ridiculous to be such a small part of society, but to be such a big number in incarceration rates.
Evan Solomon: There is a concept that many Canadians may not be familiar with. Some will be, but you said you’re a strong proponent of talking about the Gladue principles, which means taking into account the backgrounds of aboriginal peoples and their personal histories with respect to their incarceration. Why is this so important? And how does it work?
Michelle O’Bonsawin: “Well, I think that’s really important. It was an amendment made by the Government of Canada in response to high incarceration rates in the mid-1990s. And unfortunately the courts haven’t always been consistent on how to apply them. So when an aboriginal comes forward for sentencing, the trial judge is supposed to consider the individual background of the individual.
“Unfortunately sometimes it’s not consistent use. And we’ve seen that… So hopefully there will be an improvement, more than me and others talk about the need for judges to be aware of that.”
Evan Solomon: Now part of your training was in mental health. There is a big discussion about mental health going on. But when it comes to crime, how does the system balance sanity because you know… There are critics who call it “soft on crime and hard on victims”. How do you report on a mental health crisis, while holding people accountable for the actions they have taken?
Michelle O’Bonsawin: “I think that’s why we created the forensic mental health system. So when you have someone who’s been found not criminally responsible, unfit to stand trial, they go into a parallel system called health forensic mental health, which is different from what we see in regular incarceration with the parole board.
“So you have a review board looking at what kind of privileges these people should get, because sometimes what people don’t realize is that when you’ve been declared NCR (not criminally responsible) you might to be in the forensic mental health system much longer than if you were serving a sentence of two years less a day. And it’s about improving their mental health, so that they don’t pose a risk to the society and for themselves.
Evan Solomon: Justice, just before I let you go, I mean, it’s a daunting task. You mentioned it in front of parliamentarians: you are a mother, you have a life. How do you handle the rise to Court, the historical pressures, the amount of work you’re likely to take on? Is it a daunting task?
Michelle O’Bonsawin: “It is, but I must say I was very lucky. My family has always been very supportive of me. I did my doctorate while sitting as a full-time judge, so I’m good for juggling a schedule. And I don’t get much sleep. So there you have it.
Evan Solomon: That’s what I was wondering because your career is remarkable… Just one more thing, the thing you’re most looking forward to, or the thing you’re most worried about?
Michelle O’Bonsawin: “I’m really looking forward to writing my first decision. Of course, that’s the most exciting thing. But also nervous about it, because it’s a daunting task to write your first decision for the Supreme Court of Canada. So I think it’s a mix of both sides.”
Evan Solomon: And that could be in a year, right?
Michelle O’Bonsawin: “I do not know.”
Evan Solomon: Mr. Justice O’Bonsawin, what a pleasure to have you here. Thank you very much for taking the time.
Michelle O’Bonsawin: “Thanks, I appreciate it.”