Justice O'Bonsawin on the 'evolution' of and challenges facing Canada's top court

Marking one month as a judge on the Supreme Court of Canada, Michelle O'Bonsawin, speaks with Evan Solomon about why she wants people to see her as a judge first and the first Indigenous justice to sit on Canada's highest bench, second.

In the interview, O'Bonsawin also discusses the changing makeup as well as the politicization of the Supreme Court of Canada, and the legal challenges facing courts and the country's justice system writ large.

Below is a full transcript of the interview airing Sunday on CTV's Question Period. The transcript has been edited for clarity.

Evan Solomon: It is an absolute pleasure to welcome you to the program. Thank you so much for sitting down with us.

Michelle O'Bonsawin: "Thank you very much."

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

Michelle O'Bonsawin: "Absolutely. Because I think what's important for people to know is judges on our court, we're impartial. And the question is, 'Well is she going to be biased because she's an Indigenous person when it comes to Indigenous matters that will come before the court?' So I was, I guess I would say strategic when I answered the question to say that I'm a judge first because I am impartial.

"But as the first Indigenous judge to be named to the Court, I think it's important for those to understand that I have my own background that's relevant to me as a Franco Ontarian and an Indigenous woman and I bring that view to the Court that is unique."

Evan Solomon: But it's interesting that you wanted to send that signal. Was there, or is there any perceived pressure as a first? … Is there any perceived pressure that now you represent a certain community, now you have to represent and to kind of cross that line into almost an activist position?

Michelle O'Bonsawin: "Well, of course. I think it's always a question: 'Is she going to be our spokesperson on the bench?' That's one of the issues that everyone's talking about. What I can say is I'm going to do the best that I can with regard to the files that are brought to the Court. I do fall under a microscope as being one of the first, but at the end of the day, I'm impartial and I'm going to base my decision on what's presented."

Evan Solomon: Is it also a bit awkward that you even get asked these questions? Frankly because it's like 'Oh, you didn't ask the person of Irish background if they're … so it's like, 'Why do I have to make sure that I have to strategically say my biases won't in any way distort the views, but you didn't ask him that?' 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 man sitting on a case where it involves women's rights, is there a bias on that front, right? So of course that's a question that has to be asked."

Evan Solomon: I guess the other question is what took so long. The first woman was appointed in 1982, the first Jewish justice in 1970. The first person of colour just in the 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 significantly more accurately than it used to?

Michelle O'Bonsawin: "I really don't know what the answer is. I think that there's been an evolution in our society where people want to look at a bench that resembles themselves. I think there's been a lot of activism by the different groups, so that may be it. I'm really unsure, but it's nice to see variety on the bench."

Evan Solomon: It is nice to see a bench that reflects the country. What is the biggest challenge, I mean the Supreme Court is kind of this awesome institution. People are kind of nervous of it, people are nervous to speak to you now, right?... What's the biggest challenge facing the court?

Michelle O'Bonsawin: "I think access to justice is always something that's out there. I think, hopefully, there's been an evolution because of the pandemic. So now that we have electronic means to hook into the Court, I'm hoping that's better. One of the challenges we face in every court level, are self-represented litigants, because it's difficult for them, and for us to deal with those types of issues."

Evan Solomon: The other issue for the Court and this goes back to when Beverley McLachlin was the chief, is the politicization of courts. You see it in the United States all the time. How concerned are you about the politicization of the courts -- that people are confused that the courts are going to start bleeding into areas which is really the jurisdiction of elected politicians?

Michelle O'Bonsawin: "I said this during my question period. We have totally separate roles, we're not like other countries. We’re unique. We have a system that was put in place in 2016 for the nomination of the different candidates. So, it's not a party-based type of nomination that comes through. I think we're quite 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, like this is happening now. The Court is fodder for political debate in which, I guess, it's not bad that the Court's decisions are debated?

Michelle O'Bonsawin: "Yeah, at the end of the day, we're independent and I would definitely say we don't fall in the realm as you see in other countries."

Evan Solomon: One of the issues that you've talked about is over incarceration rates of Indigenous Canadians, of people of colour, Black Canadians specifically. What is at the core of that? Like when you've looked at this, you you've been in the legal system, is it straight up systemic, institutionalized racism?

Michelle O'Bonsawin: "I think there's a mix of different things. I think there's society issues that come into play. You have all the impact of intergenerational trauma caused by residential schools, so there are social issues related to that. And that's led to really high numbers of incarceration of Indigenous people.

"We're less than five per cent of the population, but when you look at Dr. (Ivan) Zinger (the Correctional Investigator of Canada’s) last report, I think Indigenous women were close to 50 per cent and men over 30 per cent. So, it's ridiculous to be such a small part of society, but be such a large number in the incarceration rates.

Evan Solomon: There's a concept that a lot of 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 Indigenous peoples and personal backgrounds in terms of their incarceration. Why is that so important? And how does that function?

Michelle O'Bonsawin: "Well, I think it's really important. It was an amendment brought in by the Government of Canada in response to the high incarceration rates in the mid 90s. And unfortunately, the courts haven't always been consistent on how to apply these. So when an Indigenous person comes up for sentencing, the trial judge is supposed to consider the individual background of the individual.

"Unfortunately, at times, it's not a consistent use. And we've seen that... So I'm hoping there's going to be an improvement, the more that I and others talk about the need for judges to be cognizant of that."

Evan Solomon: Now, part of your background was in mental health. There's a big discussion about mental health going on. But when it comes to crimes, how does the system balance mental health because you know… There's some criticism that views that as a 'soft on crime and hard on victims.' How do we account for a mental health crisis, but still make people responsible for actions that they've taken?

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

"So you have a review board that looks at what kind of privileges these individuals should get, because sometimes, what people don't realize is when you've been found NCR (not criminally responsible) you could be in the forensic mental health system much longer than if you did a sentence of two years less a day. And it's all about improving their mental health, so that they're not a risk to society and to themselves."

Evan Solomon: Justice, just before I let you go, I mean, this is a daunting task. You mentioned this in in front of parliamentarians: You're a mom, you've got a life. How are you handling the ascension to the Court, the historic pressures, the amount of work that you probably are taking on? Is it a daunting task?

Michelle O'Bonsawin: "It is, but I have to say I've been quite fortunate. My family has been very supportive all along. I did my PhD while sitting as a full-time judge, so I'm good at juggling a schedule. And I don't sleep a lot. So there you go."

Evan Solomon: That was what I was wondering because your career is remarkable… Just last thing, the thing you're most looking forward to, or the thing you're most trepidatious 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 of it."

Evan Solomon: And that could be maybe a year away, right?

Michelle O'Bonsawin: "I don't know."

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

Michelle O'Bonsawin: "Thank you. I appreciate it."