Double Aspect

Last week, the Canadian government announced the appointment of Justice Michelle O’Bonsawin of the Ontario Superior Court of Justice to the Supreme Court. As I had done after the appointment of Justice Rowe, I have read the questionnaire in which she explains her views on her career, diversity, and the role of the Supreme Court and its judges. It brings to mind the notorious argument Roman Hruska, a US Senator from Nebraska, made on behalf of the nomination of G. Harrold Carswell to the US Supreme Court: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.” Justice O’Bonsawin, I am afraid, is also no Cardozo, and no Frankfurter either, for better and for worse.

Nothing in particular qualifies Justice O’Bonsawin for the Supreme Court. She had a seemingly ordinary career as in-house counsel, first at Canada post and then as General Counsel at the Royal Ottawa Health Care Group. I presume she has done good work there ― especially in relation to mental health, with which she seems to have been much concerned, given the nature of her job ― but it is not the stuff of stardom. She has been a Superior Court judge for five years and claims that she has “developed significant knowledge and expertise in our three areas of work: criminal, family and civil litigation”. So, presumably, does any other Superior Court judge, to say nothing of those on the Court of Appeal. Remarkably, Justice O’Bonsawin lists her PhD, for which she did most of the work while on the bench ― and which she has made inaccessible to the public! ―, among the “most significant cases or matters that [she] dealt with while in legal practice or as a judge”. Perhaps I am blasé, but this strikes me as a bit pathetic as a qualification for the Supreme Court, though of course, as Justice O’Bonsawin notes, getting it done while also having a demanding day job is a testament to her work ethic and commitment.

Justice O’Bonsawin’s answer to the question about her “insight into the variety and diversity of Canadians and their unique perspectives” is perhaps the most interesting one of the whole questionnaire, albeit for what it says about the “diversity” discourse more than about her. Tellingly, Justice O’Bonsawin speaks more about her various identities ― “as a francophone First Nations woman, a parent, a lawyer, a scholar and a judge” ― than about “the variety and diversity of Canadians”. I’m not criticizing Justice O’Bonsawin here. Of course a single person’s experience of “the variety and diversity of” soon-to-be 40 million people is limited. But her answers hold up a mirror to the way that diversity talk is usually more about oneself than it is about the diversity of one’s fellow-citizens. Another characteristic point: back when she was first applying to the bench, Justice O’Bonsawin simply said that she had grown up off-reserve. Now, she speaks of “[t]he colonial separation of my family from my First Nation”. To me this feels rote rather than heartfelt. But again, that’s what the diversity discourse requires.

That said, to her credit, Justice O’Bonsawin isn’t entirely down with the programme. She writes that “[a]s Canadians, we must stop focusing on our differences and embrace diversity in order to move our country forward in a progressive manner”. While this ― like much else in Justice O’Bonsawin’s answers ― is more about the feeling than the meaning, the idea that embrace of diversity is compatible with, and even requires, a little less narcissism of small differences is a pretty good feeling to have.

Sadly, I have little positive to say about Justice O’Bonsawin’s answers about the role of judges and of the Supreme Court. While they are banal, and no more “unbound”, to use the word I’d applied Justice Rowe, than might be expected of a generic judge appointed by the Liberal government, they are remarkably shallow. A very average first-year law student might have written something quite similar, and received a very average grade for the effort. This applies, by the way, to Justice O’Bonsawin’s writing style (and indeed grammar), though as I said about Justice Rowe, one should not be judged too harshly on the prose with which one fills a government form.

The first sentence sets the tone. The soon-to-be Supreme Court judge informs us that “The role of a judge in a constitutional democracy requires them to always apply impartiality, act independently and with integrity, and remain cognizant of the pillars of the Constitution and the Canadian Charter of Rights and Freedoms”. I’m not sure how one “applies impartiality”, or what “the pillars of the constitution and the Canadian Charter” are. I’m also not sure whether Justice O’Bonsawin actually thinks the constitution and the Charter are two different things ― this is by no means the only place in her questionnaire where she uses this sort of phrasing.

Another puzzler, from a bit later on: Justice O’Bonsawin writes that “[t]here is a fine balance between constitutional and legislative powers”. Does she mean constitutional rights (she might, because that’s what she is talking about just before). Or some kind of powers that aren’t about legislation? And another one, from the discussion of the Supreme Court’s relationship with its various “audiences”: “Decisions from the Supreme Court of Canada guide litigants through the legal system. This guidance must assure litigants proceed with legal claims well founded in fact and the law.” How can guidance from on high provide this assurance? Does Justice O’Bonsawin mean that it must help litigants formulate sound claims? That would be a sensible thought, but one can only hope that Justice O’Bonsawin’s opinions will be clearer than this, if indeed they are to guide anyone.

Let me now discuss some substantive issues that arise from Justice O’Bonsawin’s answers. First, her thoughts on the constitution. She explains that “[a] judge must continuously interpret the Constitution as a living and breathing document that is reflective of the beliefs and aspirations of generations since its original implementation.” I don’t know what a “breathing document is” ― by my lights, a living one is ghoulish enough, but that’s a minority view. But even apart from that, I’m not sure, about this “generations since” business. What if the “beliefs and aspirations” of the generations that have succeeded one another since 1982, never mind 1867, are not in agreement? Justice O’Bonsawin adds that “[t]he Constitution should not be used as an impediment to individual rights”. Does that mean that when the constitution doesn’t protect a right it ought to be ignored and the right be given “benediction”, Justice Abella-style, by the courts? Conversely, when the “generations since” the constitution’s enactment aspire to impede individual rights ― as they do on a pretty regular basis, which is precisely why rights are protected by constitutions placed out of majoritarian reach ― should judges give way to their views?

The issue of the judge’s relationship with public opinion arises more broadly throughout Justice O’Bonsawin’s answers ― and she tries very hard to have it both ways. On the one hand, “a judge must remain independent from influence or pressure”. On the other ― in the very next paragraph ―, “[a] recurring and oft heard criticism of the judiciary is that judges are out of touch. In an ever-changing climate, a judge must adapt to respond to these changes.” We are not told what changes exactly judges must adapt to, but telling the judges to evolve with the zeitgeist is not so easy to reconcile with their remaining independent from external influence. On the one hand, Supreme Court judges “do not react strategically to external political pressures”. On the other ― in the very next sentence ―, the reason for not reacting strategically is that “[t]his maintains the legitimacy of the Supreme Court of Canada’s standing and its decisions”. Is this not a strategic consideration? The worst of it is that I am pretty sure Justice O’Bonswain isn’t being sneaky ― I really don’t think she realises what a maze of self-contradiction her answers are.

One more beat on the issue of external influences. Justice O’Bonsawin warns that “[a] constitutional democracy will face threats, not only from within its borders, but also from abroad which is further facilitated with social media.” This would have been music to the government’s ears, what with its worries about foreign interference, and bodes ill for the prospects of Justice O’Bonsawin standing up its ongoing attempts to censor online communications. Justice O’Bonsawin adds that “[b]eliefs in other areas of the world should not influence or affect how our Constitution is interpreted and applied to all Canadians, absent the pressure of external forces”. Again I don’t know what to make of the last bit ― should beliefs in other parts of the world influence how the constitution is interpreted if external forces are exerted? Let’s just pretend it’s not there. The idea that the courts should pay little or no attention to “beliefs in other areas of the world” is in line with recent Supreme Court decisions such as  Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32, though not with the open-minded self-image that is dear to many Canadian lawyers. But then, Justice O’Bonsawin explains that Canada “must strive to be a beacon for others as to how a constitutional democracy should be protected and fairly applied to all”. So Canadian judges ought not to be influenced by foreign thought, but those foreigners will be oh-so-lucky to learn from us. This too is not new. The majority in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3 took just this approach. I didn’t like it then, and I don’t like now.

Lastly, let me return to the issue of rights. What does Justice O’Bonsawin have in mind? She specifically mentions equality, which she explains “is not treating everyone the same but treating everyone with fairness and equity taking their differences into account”. As it happens, I recently urged students to drop the word “fairness” from their vocabulary, because it means nothing in particular and tends either to hide a lack of thought given to the subject or to paper over disagreement. Justice O’Bonsawin, who is a prolific user of the f-word, should do the same.  Alongside equality, she also mentions language rights, specifically s 16 of the Charter. And that’s it. Freedom of religion? Freedom of expression? Presumption of innocence? Not that one should necessarily expect a would-be Supreme Court judge to name-check every Charter right in their questionnaire, but the exclusive focus on equality is sadly characteristic of a certain kind of thinking about the law that strikes me as quite impoverished.

There would be still more to say, but none of it more positive than what I have already said. Let me quote just one more passage:

Charter values, such as substantive equality, dignity, fairness and human rights, are beacons for a Supreme Court of Canada Justice’s reasoning. Respecting these values support the public interest in ensuring all Canadians are treated fairly and equally for all rights protected and shared by all. They ensure national equality before the law, which is a core value of our judicial system.

Again, some of it plain silly ― Charter values include human rights! Some, incomprehensible ― national equality before the law? Is that equality before the law with Canadian characteristics? None of it is interesting or thoughtful.

I repeat my verdict: Justice O’Bonsawin is a very average lawyer who is out of her depth when it comes to the big-picture questions that a Supreme Court judge is forced ― by no means in every case, but with some regularity ― to turn his or her mind to. I’m sure she is a good and well-meaning person; she may, for all I know, have been a competent trial judge; but neither her career nor her thinking come close to qualifying her for the Supreme Court. Her appointment is transparently political, and it does a disservice to the Court that will have to welcome her, and to the Rule of Law in Canada.