There was something peculiar about the appointment of Michelle O’Bonsawin, the first Indigenous Canadian ever named to the Supreme Court of Canada. Not about the historic appointment itself. Not so much about the choice of Justice O’Bonsawin, who is an Abenaki member of the Odanak First Nation in Northern Ontario, a Franco-Ontarian who is fluent in both official languages. Peculiar in the manner the prime minister chose to make the announcement on Aug. 19.
The naming of the first Indigenous Supreme is a big deal, as was the appointment a year ago of the high court’s first jurist of colour, Kenya-born Mahmud Jamal. But where Jamal was announced with fanfare – including a ceremony and welcome speeches at the Supreme Court and a webcast that went across the country – O’Bonsawin’s announcement was made in the clandestine fashion used when the government has news it hopes no one will notice – news that might create unwanted controversy.
It works like this. On a Friday afternoon (yes, Aug. 19 was a Friday), as the weekly news cycle is winding down, the government posts an announcement. (In O’Bonsawin’s case, it was on the prime minister’s website.) By this time on a Friday, cabinet ministers are headed home for the weekend. Senior officials who could provide information are firing up the barbecue at the cottage. Columnists have filed their weekend opinion pieces. And the reporters who cover official Ottawa have decamped to their favourite fern bars.
The gurus who manage the news for the prime minister know that questions not answered on Friday afternoon will not be asked again on Monday morning. The news cycle will have moved on to new issues and controversies. There is no place in this week’s cycle for stale news from last week. It’s done and gone.
There were questions that might have been asked, or issues raised, on the Friday. One was, how old is O’Bonsawin? The prime minister didn’t say in his bare-bones announcement, and it wasn’t given in the limited material posted by the PMO. It turns out she is 48, meaning she will be able to spend 27 years on the court before mandatory retirement at 75. Last year’s appointee, Jamal, has 20 years to go. It is entirely possible that one (or both) of the “youngsters” will one day be chief justice.
In the interval, the two will change the face of the court, and potentially increase its sensitivity to the special needs of minority Canadians to overcome the legal, economic and other obstacles to full participation in Canadian life. Which has to be one reason why Trudeau chose them.
Another question. Isn’t O’Bonsawin’s judicial resume unusually thin? Yes, it is. These days, most Supreme Court judges come from the appeal divisions of provincial superior courts. Trudeau elevated O’Bonsawin directly from the trial division of the Ontario Superior Court. There’s nothing wrong with that; the Supreme Court Act provides for it. But it means she has never heard an appeal, which is what the top court does.
A third question. Why make O’Bonsawin’s appointment effective as of Sept. 1 when Michael Moldaver, the Ontario jurist she is succeeding, does not turn 75 until Dec. 23? I suspect Trudeau had the same reason for the early appointment as he had for the Friday strategy. The reason: Pierre Poilievre.
By making the appointment before Poilievre becomes leader of the Conservative party on Sept. 10, and before he can redouble efforts to defeat the minority Liberals in Parliament, Trudeau eliminated the possibility of the Ontario vacancy falling into the hands of the Conservatives. The first Supreme Court appointee of a right-wing Poilievre government would not be a First Nations woman who, as she said last week, takes a progressive approach to the law.
The Friday strategy temporarily silenced the Conservatives and protected the new Supreme from instant criticism of her limited judicial experience. It gave her time to present herself on her own terms when she appeared before the Commons justice committee at a get-acquainted session last Wednesday, five days after her appointment.
She did well. Obviously very bright – she researched, wrote and successfully defended a PhD thesis while serving on the Ontario bench – she may become recognized as the scholar of the high court. She came across as an open, warm and accessible person. Asked how she thought her Indigenous heritage and upraising had shaped her, O’Bonsawin replied: “I think being humble. No matter where we are in society, no matter how far we move up, we always have to remember where we come from.”
All in all, a promising opening of a new chapter for the Supreme Court of Canada.
Cambridge resident Geoffrey Stevens is an author and former Ottawa columnist and managing editor of the Globe and Mail and Maclean’s. He welcomes comments at geoffstevens40@gmail.com