Article Canada: First Indigenous Justice Appointed to Supreme Court

On August 19, 2022, Canadian Prime Minister Justin Trudeau announced his intent to nominate Ontario Superior Court Justice Michelle O’Bonsawin to the Supreme Court of Canada. The nomination will be formalized when Governor General Mary Simon accepts the recommendation from the federal cabinet. Justice O’Bonsawin, an Abenaki jurist from the Odanak Nation, will be the first Indigenous person to serve on Canada’s highest court, and will replace retiring Justice Michael Moldaver. Justice O’Bonsawin also identifies as Franco-Ontarian and is bilingual.

The formal qualifications for being on the court are set out in the Supreme Court Act and by convention. Section 5 of the Supreme Court Act states that a candidate must be either a judge of the superior or appeals courts of the provinces or a member of a law society (bar association) for at least 10 years. At least three judges must be from Quebec, and judges serve until the age of 75 unless they retire earlier or are removed by the House of Commons and Senate for cause, which has yet to occur.

By convention however, the court’s composition hews to regional quotas in addition to the statutory Quebec seats, with Ontario allocated three seats, the Atlantic provinces allocated one seat, and the western provinces allocated two seats. The federal government also announced in 2016 that all appointees must be functionally bilingual in English and French. In 2022, the government introduced a bill in the House of Commons that would extend application of the Official Languages Act to all federal courts, including the Supreme Court, requiring Supreme Court justices to understand proceedings in either language “without the assistance of an interpreter.”

The current Liberal government also announced the formation of independent advisory boards for each region that provide a short-list of Supreme Court candidates to the prime minister. The short-listed candidates are also reviewed by stakeholders, including the chief justice of Canada, the attorneys-general of the provinces and territories, and opposition critics. The successful candidate’s application questionnaire is made public upon appointment.

The candidate appears before an ad hoc committee consisting of House of Commons Standing Committee on Justice and Human Rights members (Justice Committee), the Standing Senate Committee on Legal and Constitutional Affairs, and a member of the Green Party (which does not have requisite representation to sit on committees), moderated by a law professor. The appearance does not affect the status of the appointment and, unlike other countries such as the United States, there is no vote on the nomination. The minister of justice and the chairperson of the independent advisory committee also appear before the Justice Committee to discuss the appointment process.

The Supreme Court of Canada has become increasingly diverse and representative of the population, and will now include four women and five men. The first non-Christian justice, Bora Laskin, was appointed in 1970, and the first female justice, Bertha Wilson was appointed in 1982. Beverley McLachlin served as the first female chief justice from 2000 to 2017. In 2020, the Canadian Bar Association called on the federal government to appoint more judges from racialized communities to all federally appointed courts in Canada. The first person of color to serve on the Supreme Court, Mahmud Jamal, was appointed in 2021.

Critics have alleged that the bilingualism requirements would inhibit the advancement of otherwise highly qualified candidates from outside of Canada’s major bilingual population centers of Ottawa, Montreal, and New Brunswick. The Indigenous Bar Association in particular called for the abolition of the bilingual requirement and for the permanent allocation of one Supreme Court seat for an Indigenous justice. Some have argued that the requirement itself is unconstitutional as part of a regular government bill and should require a parliamentary vote as well as the consent of the legislatures of all 10 provinces. A parliamentary committee that studied the issue reported that a legislated bilingual requirement would meet constitutional muster.

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