Michelle O’Bonsawin, Canada’s 1st Indigenous Supreme Court justice, on demystifying the top court

It’s been six months since Justice Michelle O’Bonsawin made history as the first Indigenous person confirmed to Canada’s highest court, and she admits that her new role as a Supreme Court of Canada judge took some getting used to.

“I found September to December was more difficult — being new to the process, and how to work with your team. Plus, I have eight other new family members that I work with day in and day out in this ‘pre-arranged marriage,'” she said.

Before her appointment to the country’s top court, O’Bonsawin served as an Ontario Superior Court judge, and has experience in labour law and mental health law as it relates to criminal law and Indigenous law. Her PhD work focused on Gladue principles, which allow judges to consider unique Indigenous circumstances when trying a case.

“I’m a judge first and an Indigenous person and a mother and a Franco-Ontarian afterwards,” O’Bonsawin, a fluently bilingual Franco-Ontarian Abenaki from Odanak, told parliamentarians in August.

O’Bonsawin is in Whitehorse this week to attend a conference of the Canadian Bar Association’s Yukon chapter. She spoke to Elyn Jones, host of CBC’s Yukon Morning.

This interview has been edited for length and clarity.

You’ve had some big life changes in the last couple of years. What has it been like for you, since you were appointed to the Supreme Court of Canada?

I’ll be honest, it’s been an adjustment. Because I was in a trial division court, so the pace is very different. I have to say the Supreme Court is definitely at another level. I’m reading day and night. So a lot of reading, and the routine is different.

So it’s been a an adjustment — a good one, and I’ve found since January it’s getting more understandable and things are going well, I think.

Is there a case that that caught your interest in the Supreme Court, that made you interested in this job and want this position?

I’ve done a lot of research on Gladue principles, so R. v. Gladue for sure was what really intrigued me — being an Indigenous woman, reading this case and how judges are supposed to apply sentencing principles specific to Indigenous people.

Recently there have been cases concerning Indigenous governance, including the Vuntut Gwichin case based in the Yukon. What’s it like to explore those issues, at that level?

It’s hard to answer. I have to say it’s extremely interesting, and what I absolutely loved was going through the agreements, going through the evidence, the affidavit, and these are cases that had a lot of intervenors. So that is something I’m not used to, because we do have cases that have intervenors but this is at another level. So I found it fascinating to hear from the parties, but then hear how all of these other parties are basically directly touched by what this decision will mean for them. So I find that fascinating.

When you’re here in town, are you hoping to connect with Indigenous students who might be interested in law? 

I’m hoping. I must be honest, they set out an agenda and I’m a little robot that’s following my agenda!

But definitely, when normally I go somewhere I try to meet with different students, either high school or university, depending where I’m at. So it’s something definitely on my radar that I would like to meet with them.

I think when we come up North as Supreme Court justices, I think it’s important for us to go out in the community and meet people and not just stay at the event where we’re going. And our Chief Justice is really open about that, how it’s really important for the justices to be out there, to demystify what the Supreme Court of Canada is.

Is it something you’d like to see, more Indigenous people, young people, going into law?

Absolutely, because I think there’s a lot of advocacy to be had. This is a field that’s emerging. Indigenous legal orders are at the top of everyone’s mind, so there’s definitely a huge need for new blood.

You’re here for the midwinter conference of the Canadian Bar Association Yukon. What will you be talking to the members about?

I’m going to be talking about Gladue principles. So, how they work, how we could think outside of the box — because they apply in bail hearings and they also apply in sentencing, but these are considerations that could be had at different levels. So I’m just going to talk about that.

I just finished my PhD with regard to the use of Gladue principles and forensic mental health. [Gladue principles] are for people that are in front of the criminal justice system, Indigenous people who are found either not criminally responsible or unfit to stand trial, and why Gladue principles should apply to them. So when we’re looking at fashioning what kind of conditions could be imposed, we have to take a consideration of these individual backgrounds and try to reintegrate them in society, but by providing Indigenous support.

And how much of a difference have the Gladue principles made, do you think, in Canada?

Unfortunately, not much. There’re a lot of case reviews that have come out. Unfortunately, judges aren’t all aware of how they work and how there’s an obligation under the Criminal Code to use these principles. So there’s a long way to go and it’s really evident, I’m sad to report. I’m hopeful, but up to date it’s not been as used as we would have hoped.

What needs to change then? 

I think it’s the education, and I’ve been a strong proponent of that, even as counsel and then in my role in the Superior Court and even at the Supreme Court, I continue. Because we have to educate everyone who has a role to play. It’s not only the lawyers and the judges, but I think that’s an essential component, but also at the social-services level.

At times you have Indigenous people that don’t even know what this means: “what’s a Gladue principle? Why would it apply to me? Like, what’s it going to do?” Then you have non-Indigenous people that seem to think it’s a get-out-of-jail free card, and it definitely isn’t.

So it’s really to educate all those involved in the criminal justice system, but also in the social services system, because I think that we all have a role to play, and everyone has to know what their role is in the system.