Michelle O’Bonsawin: “I’m not a token Indigenous judge”

In a world of Amy Coney Barretts and Brett Kavanaughs, Michelle O’Bonsawin was intent on keeping a low profile. Then in September, O’Bonsawin, a 48-year-old mother of two, was appointed the first Indigenous judge to sit on the Supreme Court of Canada in its nearly 150-year history—and with that came backlash. Critics picked apart O’Bonsawin’s credentials, which include a past stint at the Ontario Superior Court of Justice, plus a recent Ph.D. thesis (now embargoed) with a focus on Indigenous law.

O’Bonsawin’s lived experience as an Abenaki member of Quebec’s Odanak First Nation has never been more relevant to Canada’s highest court, which will field two landmark cases pertaining to Indigenous self-governance in the coming months. (One of them, centred on Bill C-92, will determine whether it violates provincial jurisdiction to give Indigenous communities precedence over child-welfare cases.) O’Bonsawin has said herself that she’s a judge first and an Indigenous woman second, but you can’t exactly fault Canadians for wanting to know a bit more about the woman wielding the gavel. Here, O’Bonsawin revealed, well, a little bit.

You’ve wanted to be in law since you were nine. Was there any precedent for that in your family or community?

No precedent. I come from a working-class family. My father worked as a machinist at Inco, then a mining company in Sudbury. My friends’ fathers worked at Falconbridge—another mine—and my mother was a schoolteacher. There were no legal professionals anywhere in my family, but when people asked me what I was going to be, I said, “A lawyer.” In French, we say, “C’est inné.”

Innate?

There you go. It’s not like I was a kid who watched Matlock every day after school. Law was just what I was going to do. I really don’t know why. 

One of your distant cousins, Richard O’Bomsawin, is the current chief of Odanak First Nation. Your family clearly has some heavy-hitting leadership genes.

He tells me we’re related. O’Bonsawin is sometimes spelled with an “m,” but it’s all the same family. 

You completed your Ph.D. defence last year. Supreme Court judge is an enviable first job to land post-graduation.

I started my Ph.D. in law at the University of Ottawa back in 2016. I took a brief leave from the program because applying to join the Supreme Court is, of course, a lot of work in and of itself. It’s one thing to do a Ph.D. when you’re working full time as general counsel, but this was something different. I ended up emailing former Chief Justice Beverley McLachlin to ask whether she thought I could do it all. She encouraged me to go back and finish.

Your thesis, which is now embargoed, focused on the use of the Gladue principles in Canada. It’s a legal framework that says judges must factor colonial traumas—like racism and displacement—into the sentencing of Indigenous people during criminal trials. Why are the paper’s contents hidden?

I had a discussion with my supervising group. It wasn’t just my decision. A lot of people think there’s something odd about the embargo, but it does happen. Many theses by pharmaceutical experts are embargoed for different reasons. My situation was unique, in that this was something I wrote as a sitting judge. It’ll be embargoed for five years, and then we’ll revisit it.

I suppose people have questions about what’s in it. How would what you wrote impact your job now? 

I wouldn’t want anyone to read into something specific and then say, “Well, she’s not impartial because she writes about Indigenous issues,” for example. That would be ridiculous. As a judge, my job is to be impartial. No one at the university had dealt with a situation like this, so it was better to err on the side of caution.

Sometimes judges take a stand. You’re filling the vacancy left by Justice Moldaver, who was outspoken in his support of complainants in sexual-assault trials. Now there are several high-stakes cases before the Supreme Court that deal directly with Indigenous self-governance in Canada. Do you think it’s possible for you to be impartial?

Yes. If you ask people who appeared in front of me when I was a trial judge, they’d say I’ve always been impartial—and I’ll maintain the same position on the Supreme Court. Whether it’s a Black judge hearing about a Black person, or a Jewish judge hearing about a Jewish person, everyone brings baggage to this job. My life informs my position, but we decide on the facts as they’re presented.

There’s a lot of scrutiny surrounding your appointment. How do you respond to criticism that you have less experience than Supreme Court judges who’ve been appointed in the past? 

I’m very qualified for this position. I practised as an in-house litigator for 17 years—at the RCMP, Canada Post and the Royal Ottawa Health Care Group. I have specialties in labour, human rights and mental-health law. I have a Ph.D. I’ve conducted trials in French and in English. To the naysayers, I would say: have a look at what I’ve done. The work shows that I’m not just a token Indigenous judge. 

Speaking of your CV: you’ve had some extremely Canadian jobs. You once worked as a tour guide at the Big Nickel in Sudbury, which was a huge Ontario tourist draw, thanks to the statue.

It was very Sudbury. The tour we gave in the mid-’90s is quite different from the way the place is set up now. During our training at nearby Creighton Mine, we went down into the mine shafts in cages to see how fast they dropped. They turned the lights off to show us how dark it was when the mining was going on—you couldn’t even see your hand in front of you. We turned off the lights during our Big Nickel tours, too. Every once and while, you’d hear a little kid scream.

Do any fun, tourist-friendly facts linger in your mind?

At that time, Creighton Mine had an underground garden. We were all surprised, but I remember seeing a lot of vegetables.

I want to go back to the Court for a second—

Oh, and before I ran tours at the mine, I worked for my aunt at a chip stand. When I got home, I smelled so much of grease that my mother would make me change clothes in the garage.

In the U.S., the Supreme Court nominations have been unambiguously politicized—it’s a hot mess, really. No offence, but I don’t think most Canadians could name all of our Supreme Court justices. Do you think that’s a good thing?

I think it’s a neutral thing. Informed Canadians are always good for society. But as a sitting judge, I like the anonymity of being able to go out and not get recognized—not in Ottawa, which is a very political town. In Montreal or Toronto,  however, no one knows who Justice O’Bonsawin is. 

Do you consider yourself to be a private person?

Yes.

Perfect answer. Before she died, Ruth Bader Ginsburg had a dedicated stream of merchandise. I guess that’s not something you aspire to?

Everyone aspires to be R.B.G. She was a rock star. But I just want to be me, a judge who’s fair, impartial and renders great decisions. I don’t need to be a public figure to do that work.

R.B.G. aside, who are your legal heroes?

Georgina Jackson on the Saskatchewan Court of Appeal. Her and McLachlin: they were trailblazers. They started out when there weren’t many women on the scene. Ontario Justice Charles Hackland—whom I know as Chuck—was brought on to handle the Rob Ford conflict-of-interest case back in 2012. He taught me a lot about being a good listener when you’re sitting in court. 

Were there any game-changing cases that unequivocally cemented the power of the Court in your mind?

Definitely R. v. Gladue in 1999, which effectively mandated the sentencing principles we talked about. There was also Delgamuukw v. British Columbia in 1997, which established that Aboriginal title—like land ownership—was protected by the Constitution. I’m interested in the upcoming cases related to Indigenous title, but also things like privacy and other Charter issues.

You’ve been on the bench for a few months now. Have you built relationships with any of the other judges? 

The Supreme Court is basically an arranged marriage with eight other people. There’s no welcoming committee—no one brought me muffins—but people dropped by and introduced themselves. I knew Justice Brown and Justice Martin beforehand. One of the first lunches I had was with Justice Moldaver, whose seat I’d just taken over. Justice Kasirer, who I’ve adopted as my mentor in civil law, gave me my first copy of Le Droit Civil. 

Have any Indigenous colleagues reached out to talk about what your appointment means to them? 

I know my community is extremely proud of me. At my private swearing-in ceremony, the chief of my nation gave me a basket made of black ash and braided sweetgrass, which the Abenaki people are known for. When I went to the Indigenous Bar Association’s annual conference in Montreal in October, I got a standing ovation.

Were there any young, aspiring M.O.B.s in the audience? 

I met some Indigenous junior counsel who said that my appointment was inspiring to them—that even given the colonial process we’re working within, we could be named to the highest court in Canada. I still mentor young women, and some young men too. I’ll have some advice for them, I hope.

Some justices have a reforming streak inside of them, and some are reformers by virtue of being who they are, where they are. Would you say that you’re a reformer? 

I wouldn’t call myself that. I’d definitely say that I’m someone who’s progressive and centre-minded. That’s served me. The evolution of social norms is really important. There are many social changes we want to see as Canadians. I’m not saying I’m going to spearhead those changes, but I may be a part of them just by sitting on this court. 

You live in Ottawa, which is all politics, all the time. What do you do when you’re off-court? 

Before I came to Ottawa, I would sew a lot—even my own clothes. I called myself a little seamstress. After the move, life took over, and I realized I needed to do things other than… judging. So I read murder mystery novels, like ones by Harlan Coben or John Sandford. I paint a lot of Indigenous imagery, like the creation story of Turtle Island. (Sometimes there are eagles.) You may have also heard I have quite a few pets: three dogs, eight chickens and a gecko. 

Did you just say you have eight chickens?

We have eight chickens. My husband and son built a coop for them in our backyard. It’s so large that we call it the “Château des Poules.” On a busy summer day, we’ll get six to eight eggs from them. At this time of year, we get two.

Nine chickens is a Supreme Court bench.

Maybe I should rename them. 

Do your kids have any awareness of the gravity of your job? Any innate lawyers among them? 

My youngest, who’s 16, is a political junkie. When I was a trial-court judge, he was curious to find out about the kinds of cases I was working on. I didn’t get into the specifics, but he knew I was doing criminal law—so drugs, sexual assault cases, things like that. My husband constantly has CNN on, so we talk about what’s going on in the world. My oldest is a student who’s specializing in glass art. He does not want to be a lawyer. 

Some might say that practising law is an art.

Oh, absolutely. The art of the word.

Did your parents ever give you context for the social hierarchy that you’d face down when you became a lawyer? How do you think about that now, given where you’ve ended up?

My dad was very poor growing up. My grandfather worked two jobs. It was not easy living. When my dad was young, his family were known as “the savages of Sunnybrae Avenue.” We talked politics, but we didn’t see people like us in positions of power. That’s changed now.

This interview has been edited for length and clarity. 


This article appears in print in the December 2022 issue of Maclean’s magazine. Buy the issue for $9.99 or better yet, subscribe to the monthly print magazine for just $39.99.

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