Michelle O’Bonsawin: Q&A with the latest SCOC justice

Michelle O’Bonsawin, a month-long judge on the Supreme Court of Canada, speaks with Evan Solomon about why she wants people to see her as a judge first and second as the first indigenous judge on Canada’s highest bench.

In the interview, O’Bonsawin also discusses the changing composition and politicization of Canada’s Supreme Court, and the legal challenges facing the country’s courts and legal system.

Below is a full transcript of the interview that will air on CTV’s Question Period Sunday. The transcript has been edited for clarity.

Evan Solomon: It is an absolute pleasure to welcome you to the program. Thank you very much for joining us.

Michelle O’Bonsawin: “Thank you very much.”

Evan Solomon: I want to start with something you said when you showed up at your question-and-answer session with parliamentarians. Let me read it to you. You said, this is in August: ‘I am a judge first and then an indigenous person and a mother and a Franco-Ontarian.’ I am a judge first. Was that an intentional comment you made given all the news about you being a historic first as the first Indigenous person on the bench?

Michelle O’Bonsawin: “Absolutely. Because I think it is important for people to know that judges are at our court, we are impartial. And the question is, ‘Well, will she be biased because she is an Indigenous person when it comes to Indigenous matters? who will come to court?’ So I was, I think I’d say strategically, 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 is important for those to understand that I have my own background that is relevant to me as a Franco-Ontarian and an Indigenous woman and I bring that view to the fore.” the Court that is unique.”

Evan Solomon: But it’s interesting that you wanted to send that signal. Was there, or is there any pressure as a scoop? … Has there been any pressure perceived that you now represent a certain community, now you have to represent that line and sort of overstep it into an almost activist position?

Michelle O’Bonsawin: ‘Well, of course. I think it’s always a question: ‘Will she be our spokesperson on the bank?’ That’s one of the things everyone is talking about. What I can say is that I will do my best with regard to the files that are submitted to the court. I do fall under a microscope as one of the first, but in the end I am impartial and will base my decision on what is presented.”

Evan Solomon: Is it also a little awkward that you get these questions? Honestly because it’s like ‘Oh, you didn’t ask the person of Irish descent if they… so it’s like, ‘Why do I have to make sure to say strategically that my prejudices don’t affect the view in any way, but you didn’t ask him?’ Is that part of the problem?

Michelle O’Bonsawin: “Oh, absolutely. I think so. Because at the end of the day, if you’re a guy who’s in a case that talks about women’s rights, there’s a bias on that front, isn’t there? So of course that’s a question to be asked.”

Evan Solomon: I think the other question is why it took so long. The first woman was appointed in 1982, the first Jewish judge in 1970. The first person of color in the past year, now the first indigenous person in the court. What took so long? And what will change because we now have a court that reflects our country significantly more accurately than it used to?

Michelle O’Bonsawin: “I really don’t know what the answer is. I think there’s been an evolution in our society where people want to look at a bank that looks like themselves. I think there’s been a lot of activism by the different groups, so she can I’m really insecure, but it’s nice to see variety on the couch.”

Evan Solomon: It’s nice to see a sofa that reflects the country. Which is the biggest challenge, I mean, the Supreme Court is such a great institution. People are a little nervous about it, people are nervous to talk to you now, right?… What’s the biggest challenge for the court?

Michelle O’Bonsawin: “I think access to justice is always something that’s there. I think hopefully there’s been an evolution because of the pandemic. So now that we have electronic means to connect to the Court, I hope that’s better. that we face at every judicial level are self-representative litigants, because it’s difficult for them and for us to deal with those kinds of issues.”

Evan Solomon: The other issue before the Court and this goes back to when Beverley McLachlin was the head is the politicization of 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 will begin to bleed in areas that are effectively the jurisdiction of elected politicians?

Michelle O’Bonsawin: “I said this during my question time. We have completely different roles, we are not like other countries. We are unique. We have a system that was put in place in 2016 for the nomination of the different candidates. So it is not a partisan nomination that I think we’re very different from the 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 fodder for a political debate in which, I think, it is okay to debate the Court’s decisions?

Michelle O’Bonsawin: “Yes, we are independent in the end and I would definitely say we don’t fall into the empire like you see in other countries.”

Evan Solomon: One of the issues you’ve talked about is the number of incarcerations of Native Canadians, of people of color, especially black Canadians. What’s the gist of that? Like when you looked at this, you’ve been in the legal system, is it downright systemic, institutionalized racism?

Michelle O’Bonsawin: “I think there’s a mix of different things. I think there’s social issues involved. You’ve got all the impact of intergenerational trauma caused by residential schools, so there’s social issues associated with that. And that’s led to real high rates of incarceration of indigenous peoples.

“We make up less than five percent of the population, but if you look at the latest report by Dr. (Ivan) Zinger (the Correctional Investigator of Canada), I think that Indigenous women were close to 50 percent and men more than 30 percent. so is ridiculous to be such a small part of society but be such a large number in the 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 big believer in talking about the Gladue Principles, which means you have to consider the backgrounds of indigenous peoples and personal backgrounds in terms of their incarceration. Why is that so important? And how does that work?

Michelle O’Bonsawin: “Well, I think it’s very important. It was an amendment tabled by the government of Canada in response to the high incarceration rates in the mid-’90s. And unfortunately, the courts have not always been consistent about how these So when an Indigenous person comes up for sentencing, the court of first instance is expected to take into account the individual background of the individual.

“Unfortunately, sometimes it’s not consistent use. And we’ve seen that… So I hope there will be an improvement the more I and others talk about the need for judges to be aware of that.”

Evan Solomon: Now, part of your background was in mental health. There is a lot of discussion going on about mental health. But when it comes to crime, how does the system balance mental health, because you know… There’s some criticism that sees that as a “soft approach to crime and hard on victims.” How do we explain a mental health crisis, but still make people responsible for the actions they have taken?

Michelle O’Bonsawin: “I think that’s why we created the forensic mental health system. So if you have someone who has not been found criminally responsible, unfit to stand trial, they go to a parallel system called forensic mental health, which is different from what we see in regular incarceration with the probation service.

“So you have a review committee looking at what kind of privileges these individuals should be given because sometimes people don’t realize that when you’re found NCR (not criminally responsible) you could be in the forensic mental health system for a lot longer than when you were.” you would do a sentence of two years less a day. And it’s all about improving their mental health so that they don’t pose a risk to society and to themselves.”

Evan Solomon: Justice, just before I let you go, I mean, this is a daunting task. You said this in front of parliamentarians: you are a mother, you have a life. How do you deal with the ascent to Court, the historic pressure, the amount of work you’re likely to take on? Is it a daunting task?

Michelle O’Bonsawin: “Yes, but I must say that I have been very lucky. My family has supported me the whole time. I did my PhD while I was a full-time judge, so I’m good at juggling a schedule. And I’m not sleeping a lot. So there you go.”

Evan Solomon: I was wondering because your career is remarkable… The last thing you most look forward to, or fear most?

Michelle O’Bonsawin: “I’m really looking forward to writing my first decision. That’s obviously the most exciting. But also nervous, because it’s a daunting task to write your first decision before the Supreme Court of Canada. So I think it’s a mix of both sides of it.”

Evan Solomon: And that might take a year, right?

Michelle O’Bonsawin: “I don’t know.”

Evan Solomon: Judge O’Bonsawin, what a pleasure to have you here. Thank you so much for taking the time.

Michelle O’Bonsawin: “Thank you, I appreciate that.”

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