Getting to the Supreme Court of Canada, not that hard apparently…

Never have I been one to think that somehow the Americans always get it right. In fact I think I could argue that they more often than not mostly get it wrong. However, in Canada, our flaw seems to be more often than not we don’t seem to get it at all. We just seem dis-interested. In the last few weeks and months, we have watched the two countries each nominate and then elevate a person to their respected highest courts. Watching the process in both was both illuminating and discouraging.

In the U.S. the process and the subsequent hearings to determine whether one was suitable for the Supreme Court has become highly political, polarized to the point that the proceedings are often irrelevant and therefore wholly predictable because of the overwhelming party rhetoric. Both the Democrats and the Republicans engage in vitriolic hyperbole, but the candidates need to run the partisan gauntlet, and then gather sufficient support from both sides to be officially sanctioned in a vote. That is their system.

In Canada, the process is mostly behind closed doors, just the way we like it, out of the public view, and therefore never contentious. Confrontation and diligent examination is to be avoided at any cost.

Let’s keep in mind that in both cases we are not talking about a minor promotion here. The Supreme Courts in both countries, are there, at least in theory, to interpret from a judicial perspective some of the toughest questions that confront a democratic society. Their rulings once made will reverberate throughout all levels of society and literally could have life and death consequences. To assume a post in amongst the nine judges that each court holds is a serious and for most would be a personally overwhelming undertaking.

In the U.S. the Supreme Court is fundamentally there to protect the constitutional rights of each and every citizen: speech, religion, press, assembly, and the right to petition the government. The U.S. constitution as originally written is the founding and fundamental document which acts as their guide.

In Canada, the Canadian Constitution is the similar base document, which has also been bolstered by the enshrining of the 1982 Charter of Rights. Those rights are: freedom of conscience and religion, freedom of thought, belief, opinion and expression, including freedom of the press and other media communication, freedom of peaceful assembly and freedom of association. So the two base documents in the two countries are similar if not identical.

Recently Kejanji Brown-Jackson was put forward by the Democrats as their candidate for the U.S Supreme Court. Ms. Brown-Jackson is a woman and is black. That is mentioned here because it is something which is continually leading every headline of that country’s newspapers in reference to her application. She was not only the first black woman to be tendered for the job she was also the first public defender. The lady is highly qualified; Harvard Law school, editor of the Law Review, a clerk for three different judges including Stephen Breyer, of the U.S. Supreme Court, who she was now destined to replace. She served as a District Judge in the District of Columbia from 2013 to 2021, vice Chair of the U.S Sentencing Commission, and for a year served as a U.S. Court of Appeals judge.

Her credentials like most who ascend to the American highest court are impressive. Nevertheless, she needed to go through four days of public hearings, and submit to extensive questioning by the Republicans on the Committee. They researched, reviewed and then questioned her sentences from days on the court. In often un-friendly terms they described her as an “activist” judge, and accused her of being “evasive” with no base “judicial philosophy”. Senator Lindsay Graham a hardline Conservative described her as more appealing to the “hard left” and therefore a political appointment as opposed to a judicial appointment. And the Republicans presented some legitimate argument in that regard. They examined all her sentencing documents in all the child pornography cases that had come to her over the years; and then effectively demonstrated how she was very light, in fact below the sentencing guidelines on those types of cases. They asked her questions on her judicial predilections such as “how does the court define gender discrimination”.

Ms. Brown Jackson was clearly coached and was at times politically evasive on her view of certain issues, but she survived relatively unscathed and held up to most of the questions. She was therefore sworn into office on June 30th at the U.S. Supreme Court, after a very long application process, having met with all the political heavy weights on both side of the government, and having endured the four day process, and then been voted on.

In Canada, in this gentler country, there is not the same process.

Nominated for the highest Canadian court was Michelle O’Bansawin. She was to replace the retiring Michael Moldaver, who had been appointed to the Supreme Court in 2011. Before joining the Supreme Court Moldaver had been a Judge at the Ontario Superior Court of Justice and then the Court of Appeal for Ontario for over twenty years. He was a former criminal lawyer and considered a foremost expert on criminal law and the Charter of Rights.

The Canadian headlines for the 48 year old O’Bansawin, were sadly predictable, and often only made reference to the fact that she was the “1st Indigenous woman” to be nominated for the Supreme Court of Canada. So what enduring process and examination did she have to go through in Canada?

The Minister David Lameti and H. Wade McLauchlan , started off the coronation . The latter who headed up the “Independent Advisory Board” along with the Cabinet Minister, appeared before the House Committee to announce and promote O’Bansawin, on the same day she was to appear for her one and only “hearing”.

McLauchlan is a former Liberal Premier of P.E.I and a “community leader” according to his bio, and clearly a liberal political operative. There are a total of eight members of the Committee such as ; Paulette Senior, CEO of the Canadian Women Foundation; Kohrad Sioui, a Grand Chief; David Nahwegahbow who heads an Indigenous law firm and was nominated to the Committee by the Indigenous Bar Association. You are probably safe in assuming that there were no conservative people affiliated with this group and you would probably be safe in also assuming that it was weighted in favour of an Indigenous candidate.

Lameti and McLauchlan began by lauding this process that had been undertaken. They described how they had received a grand total of 12 applications; then went on to praise all the candidates who had completed what they described as a very “elaborate application form”. The requirements of that form were not presented. The three main criteria they said for the job was tellingly– that the person needed to be “bilingual”, “qualified”, and “represent Canadian diversity”. They then short-listed 6 of the candidates who were then interviewed by the Committee for an hour each. All of this less than intensive vetting was done behind closed doors. The Committee then completed a report and sent it to the Prime Minister to choose between the 3-5 that they felt were suitable. Lameti said that the candidates would be “guiding the evolution of justice” and would bring a “deep understanding of the diversity of Canada” to the job. He felt he needed to add that the process was “free of partisanship”.

Then Ms. O’Bansawin appeared in the Committee room and was given a round of applause by those in attendance in the gallery. Lameti and MacLauchlan were clearly the warm-up opening act. She appeared for what was described as an “informal chat” on the merits of her elevation to the highest judicial post in the land. For the next 90 minutes, the members of the Committee lobbed what could only be described as softball questions at her while in the same breath praising the fact that she comes from an Indigenous background. This was not even a full committee hearing, where possibly deeper evidence could have been brought forward for examination. Lameti bragged that they were trying to avoid the U.S. model and that this Canadian model was better and much more of an “independent evaluation”.

Despite their insistence that competency was first and foremost in their criteria, McLauchlan admitted that the “character” of the candidate was as important as “competency”, and boasted that she would be “bringing the element of diversity” and this would all assist in the “path of reconciliation”. Lameti also admitted that part of his “mandate letter” given to him by his government included the boosting of the “under represented” to the higher levels of the court.

So what are Michelle O’Banswin credentials? She received a B.A. from Laurentian University, and went to the University of Ottawa for her legal degree. From there she acted as “in-house” counsel for the Legal Services section of the RCMP, and then to “in-house” counsel for Canada Post. After working for the post office, she went to the Royal Ottawa Health Care group where she would stay for the next eight years, again to act as in-house counsel. There she says she developed an interest in mental health while at the “Royal”, and would get her Masters in Law, and in 2021 her PHd. Her Phd is not available for viewing(it is under “embargo”-a rather unusual move) but she described it as being about Indigenous and Mental Health issues.

In 2017 she was appointed to the Ontario Superior Court as again “the 1st Indigenous woman” and that is where she was until her nomination. She did her Phd while sitting on that Court. She was never a part of any court of Appeal.

When asked about her criminal experience, because after all about 55% of the issues which come before the Court are criminal matters, she pointed to her expertise in Mental Health and being an expert on the Gladue Principles. For those that forget, the Gladue principles are a way for the Judge “to consider the unique circumstances (“experiences”) of Indigenous peoples” in sentencing.

Even though the politician and the public servant lauded her competency, none of it was questioned or brought to the table, it was all about her Indigenous heritage. Lori Idlout of the NDP praised her appointment as she felt that there was a need to incorporate the laws of the Indigenous “before colonialism” (the Indigenous have hundreds of legal systems) into the Canadian legal system, and that finally they could finally address the facts that the “lands have been stolen from them”. Another NDP’r, a former member of the Elizabeth Fry Society was hopeful that with Ms. O’Bansawin on the court they could finally deal wit the “colonial racism” and the “over-representation” of Indigenous in the jail system (currently 50% of the incarcerated are Indigenous to the 5% of the population). There was considerable mention of the drive to “self-government” and “self-determination” that all clearly felt could be hastened by Ms. OBansawin on the court.

Was her candidacy strictly a political Liberal move to appease their favoured Indigenous constituency as one could not get around her relatively limited credentials, even the left and Liberal supporting Globe and Mail called her a “relatively inexperienced jurist”? Or was it more than that? Is it coincidental or does her appointment also foretell an outcome in two cases which are coming to the Supreme court in the next few months? Without too much exaggeration, the settlement of these cases and the decisions coming from them could prove dangerous to the unity of this country as a whole.

In early December of this year coming before the Supreme Court is a case which concerns the right of Indigenous peoples to write their own laws for child-welfare services in which the Federal government in Bill C-92 of two years ago “affirmed the right of self-government”. This bill gave the Indigenous laws in the area of child welfare the force of Federal law. This means that their “laws” will supersede any Provincial law. This has stirred up Provinces like Quebec who will argue in front of the court that it emphatically violates Provincial jurisdiction.

The second case is about an Indigenous community right to set a residency requirement for members of its council. At first blush that seems less than significant. But, it will be the first case tested under Section 25 of the Charter, which states that charter rights should not be interpreted to detract from Indigenous rights. Could this mean that the unwritten and uncharted “laws” of first Nations will not be bound by the Charter of Rights?

As a Metis lawyer for the pro Indigenous argument explained, the two cases will finally address modern “aboriginal law…and how pre-existing Indigenous law, jurisdiction, and self-government reconciles within Canada’s constitutional architecture ” . The argument at its simplest is that the Indigenous were here first, therefore their “laws” should supersede the laws of Canada.

So there you have it. Without any serious debate, without any examination of her rather limited record, written or otherwise, we now have a sitting Judge on the Supreme Court for possibly the next 27 years, who Professor Phillips an editor in chief for the Osgoode Society for Canadian Legal History describes as: “most people don’t have much sense of her, because she’s done relatively low-profile things”. This is lawyer speak meaning that she is un-qualified for this appointment, unless of course merit is measured not in competencies, but in your cultural background.

None of this is shocking anymore. This is not the first time that the Federal government has appointed someone because they are aware of their identity, we are kind of getting used to it now, when the political need is clearly held to be greater than the need for professional competence. But, in this incidence it could prove dangerous for this country, and if we don’t care, we should care. It has all been done with the efficiency and secrecy of the Catholic Church in appointing the next Pope, but without the white smoke coming from the Parliamentary chimney.

Photo Courtesy of Alex Gubord and Flickr Commons – Some rights reserved