The Current

Supreme Court needs at least 3 Indigenous justices — even if that means bigger court, says lawyer

Michelle O'Bonsawin has become the first Indigenous person nominated to the Supreme Court of Canada, but some legal experts say she shouldn't be the only one.

Important to have judges 'familiar with Indigenous legal traditions': Bruce McIvor

Prime Minister Justin Trudeau nominated Michelle O'Bonsawin to the Supreme Court of Canada on Friday. (PMO/The Canadian Press)

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Prominent Indigenous lawyer Bruce McIvor says Michelle O'Bonsawin's nomination as the first Indigenous person to Canada's Supreme Court is an historic step, but he thinks the country's highest court needs "three Indigenous people at a minimum."

"In the same way that there's a requirement for three justices from Quebec, [and] there's a tradition of three from Ontario, there should be three Indigenous appointments," said McIvor, a partner at First Peoples Law and a member of the Manitoba Métis Federation.

Prime Minister Justin Trudeau announced O'Bonsawin's nomination Friday, setting her on the path to become the first Indigenous person to serve on Canada's highest court. O'Bonsawin is Abenaki from Odanak, and has served on the Ontario Superior Court of Justice since 2017. 

McIvor said his proposal of three Indigenous justices could be appointed through an act of Parliament to expand the court from nine to 11 members. That would allow two more Indigenous justices to join O'Bonsawin, and would not require constitutional change.

Having Supreme Court justices that are "familiar with Indigenous legal traditions [and] social values," is important, he said, and more Indigenous representation would recognize that "Canada is not just a nation of so-called two founding nations, the French and British."

"Indigenous people were here first with their own laws, and that needs to be reflected in the makeup of the Constitution and in the makeup of the country's highest court," he told The Current's guest host Nora Young.

WATCH | 1st Indigenous person nominated to Supreme Court of Canada:

Michelle O'Bonsawin becomes 1st Indigenous person nominated to Supreme Court

1 month ago
Duration 2:07
Prime Minister Justin Trudeau announced his nomination of Michelle O'Bonsawin to the Supreme Court of Canada, making her the first Indigenous person to serve on Canada’s highest court.

Drew Lafond, president of the Indigenous Bar Association, said the Supreme Court makes decisions on the rights of Indigenous peoples, which can impact their communities for generations.

He thinks O'Bonsawin will bring "knowledge that the Supreme Court has been lacking" in its history, "which is familiarity with Indigenous laws, customs and traditions, and how those can be used to inform the Canadian constitutional law that we currently operate in."

O'Bonsawin's application to join the court was published on the Department of Justice's website. In it she wrote that she believes her "experience as a francophone First Nations woman, a parent, a lawyer, a scholar and a judge provide me with the lived understanding and insight into Canada's diversity because I, and my life experience, are part of that diversity."

Indigenous perspectives offer diversity: prof

Lafond agreed with McIvor's call for a minimum of three Indigenous Supreme Court justices, saying that having someone with that knowledge and perspective "is something which should be commonplace and I think should be instituted in the Supreme Court Act."

"She is one voice of nine, but it would be much more beneficial, I think, for the country as a whole to have … at least three voices on the court," he said.

Val Napoleon said she did 'did a little happy dance' at the news of Michelle O'Bonsawin's nomination. (University of Victoria)

Val Napoleon, acting dean of the faculty of law at University of Victoria, said she "did a little happy dance" when she heard of O'Bonsawin's nomination, and she thinks her appointment will make the institution stronger.

She says O'Bonsawin's eventual seat on the court will add to its legitimacy among Indigenous communities, especially when "little Indigenous girls and boys are going to be able to see that there's an Indigenous person on this court, and they can see themselves in the institution."

"What I hope is that one day we can get to a point where it's completely normal to have Indigenous peoples through all of our institutions," said Napoleon, a member of the Saulteau First Nation.

But she pointed out that while Indigenous peoples have diverse laws and cultures, they also offer diverse perspectives on Canada itself, adding to the country's overall diversity. 

"As Indigenous peoples, we have multiple perspectives of Canada — and that multiplicity is representative of Canada," she said.

Written by Padraig Moran. Produced by Enza Uda, Melissa Gismondi and Ines Colabrese.

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