Idlout questions Supreme Court nominee on Indigenous laws, language barriers

O’Bonsawin would be first Indigenous justice on Supreme Court if appointed

Nunavut MP Lori Idlout asked Supreme Court nominee Michelle O’Bonsawin what she thinks the Supreme Court can do to ensure Indigenous-language speaking “people are better heard in terms of seeking justice” on Wednesday in Ottawa. (Screenshot from the House of Commons committee meeting)

By Meral Jamal

Nunavut MP Lori Idlout questioned Supreme Court nominee Michelle O’Bonsawin about Indigenous laws and language barriers Indigenous people face in the court system Wednesday in Ottawa.

O’Bonsawin — nominated Friday by Prime Minister Justin Trudeau to be the first Indigenous justice on the supreme court — appeared before the House of Commons justice committee, whose Wednesday meeting was livestreamed.

Idlout, an NDP member and associate committee member, asked O’Bonsawin how she would ensure “Indigenous laws are seen and heard” if she is appointed to the Supreme Court.

“How will you, as an Indigenous justice, work with the Supreme Court of Canada to lead in the potential for Canada to be a pluralistic legal system that reconciles with Indigenous laws which have purposefully been ignored and hidden?” Idlout asked.

“In other words, how will you ensure that Indigenous laws are seen and heard?”

“What I can tell you is I live my traditions,” O’Bonsawin responded. “I bring these traditions and my heritage to the table.”

She said she hopes her legal experience dealing with mental health laws would also benefit Indigenous communities, many of which grapple with intergenerational trauma caused by the residential school system.

A Franco-Ontarian, O’Bonsawin is an Abenaki member of the Odanak First Nation.

Idlout also questioned O’Bonsawin on how the Supreme Court can ensure Indigenous people can access better language support within the justice system.

Referring to the committee meeting earlier in the day when translation from Inuktitut to English and French was not immediately available, Idlout asked O’Bonsawin how the Supreme Court can ensure Indigenous-language speaking “people are better heard in terms of seeking justice.”

“I think [language barriers are] often a reality that is experienced by individuals in the court system who have non-Indigenous lawyers that don’t understand them fully,” Idlout said.

O’Bonsawin responded, saying “I think it’s a bit difficult to provide an answer to that question, but I could tell you that in my experience in our court we have translation services.

“I would hope that if we appear in front of courts with our language, we would have proper translation [available].”

If appointed to the Supreme Court, O’Bonsawin would fill the vacancy left by Justice Michael Moldaver, who is set to retire on Sept. 1.

O’Bonsawin most recently served on the Ontario Superior Court in Ottawa.

 

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(44) Comments:

  1. Posted by Lost Merit on

    I really wonder if these individuals feel to be token appointments or if they actually believe that they are being selected based on merit. A career with Canada Post and some mental health law is very narrow indeed to be on Canada’s top court.
    .
    I guess I am old fashioned to believe that individuals being appointed to an office they hold as of right until age 75 should be based purely on merit, not the common polarizing philosophy that thinks an indigenous person will somehow render better verdicts than anyone else. I wonder if they did a blind selection based on credentials only if they would have the same nominee. Doubtful.

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    • Posted by Unmuted on

      I suspect your intuitions might be right, at least some of the time. A person selected for the highest position in their field for criteria other than their accomplishments in that field probably should carry a feeling that they didn’t really earn it.

      That is unfortunate for them, unfortunate for the field itself, and ultimately for all of us.

      The counter will be that representation and diversity matter. I can agree to that to the extent that those come attached to whatever standards are in place for, in this case, a Supreme Court Justice, or manager, or ‘you name it’.

      In reality we are seeing the subversion of standards across the board in the name of diversity for reasons you’ve identified; there is, we are told in subtle language, a kind of sociological ‘magic’ that comes attached to onboarding people of different backgrounds (read: ethnicity or race).

      Is that true? Diversity of experience and background are good things, even more importantly is they contribute to viewpoint diversity, but I don’t think that is happening. If anything the ‘other’ selection criteria (never mentioned) appears seems to be ideological conformity.

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    • Posted by Southerner in the North on

      Way to minimize Justice O’Bonsawin’s qualifications. Here is a comprehensive picture of her legal career as opposed to the crudely drawn cartoon you presented (from the Government of Canada website).

      “The Honourable Michelle O’Bonsawin is a widely respected member of Canada’s legal community with a distinguished career spanning over 20 years.

      Justice O’Bonsawin was appointed to the Ontario Superior Court of Justice in Ottawa in 2017, becoming the first Indigenous woman judge of that court. Prior to her appointment, she was General Counsel for the Royal Ottawa Health Care Group for eight years. In this role, she developed a thorough understanding of legal issues related to mental health and performed significant research regarding the use of Gladue principles in the forensic mental health system, appearing before various administrative tribunals and levels of courts, including the Human Rights Tribunal of Ontario, the Consent and Capacity Board, the Ontario Review Board, the Ontario Superior Court of Justice, the Ontario Court of Justice, and the Ontario Court of Appeal. She began her legal career with the legal services at the Royal Canadian Mounted Police and was then Counsel with Canada Post, specializing in labour and employment law, human rights, and privacy law.

      Justice O’Bonsawin has taught Indigenous law at the University of Ottawa’s Common Law Program and was previously responsible for the Indigenous Relations Program at the Royal Ottawa Health Care Group. She is a frequent guest speaker on Gladue principles, Indigenous issues, as well as mental health, labour, and privacy law.

      She previously served on the Board of Governors of the University of Ottawa, as well as its Executive Committee, and as a Board member for the Aboriginal Legal Services of the University of Ottawa Legal Aid Clinic. She is currently an observer member of the Membership Committee of Odanak First Nation, a Board member of the Canadian Institute for the Administration of Justice, and a Partner Judge for Afghanistan Women Judges with the International Association of Women Judges.”

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      • Posted by How it looks from here on

        These aren’t bad accomplishments at all, but I think the question of whether they warrant a position on the Supreme Court remains a reasonable one.

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        • Posted by Southerner in the North on

          Considering none of the existing judges have significant experience in the law as it relates to indigenous persons, particular the Gladue priniciples, and the court is a bit light on experience in administrative law, I think her experience makes her a good fit.

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    • Posted by Name Withheld on

      Often I was told that Inuit didn’t have such word as “You are welcome” until much later years.

      Indigenous language and English is not the same at all. Indigenous use’s tone’s when they speak their language. One word can mean a lot of other meanings and it all depends what tone you speak it with.

      Prime Minister Trudeau appointing indigenous is part of the step taking place as reconciliation. This is a huge step

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      • Posted by Come on… on

        All languages use “tones”…

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      • Posted by uakallangaa on

        You are so full of it. Yes, all languages have tones. However, it is true, there were no specific words for you are welcome or even the word ‘hello’. As Qallunaat and west erners stayed, the newcomers’ ways influenced new language. Any which way, you will find a way to oppress Indigenous cultures. You are a perfect example of oppression and continuing influence of colonialism. You have such a euro-centric attitude.

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        • Posted by okay, but… on

          There are a lot of indigenous languages, they aren’t all the same. Also, this nominee does not speak any of them.

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    • Posted by Merit on

      Interesting critique. I hope that you are a bilingual 20+ year professional who earned your PhD while raising two children, working full time and writing scholarly papers while doing extensive volunteer work.

      The woman is exceptional.

      Your comments are classic elitist garble

      Every SCC appointment is carefully chosen for diversity geography and gender. On top of diligent competence.

      I sincerely hope you re-evaluate your approach to this issue.

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      • Posted by The Bar is Low on

        It’s disappointing that the best response you can come up with is “elitist garble”

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      • Posted by Interesting Critique, Merit. on

        This comment from “Merit” is a perfect Ad Hominem fallacy. Undermining the original poster’s argument by attacking their traits. You do not have to be better than a Supreme Court nominee in order to make an argument for or against that nominee.
        .
        If NASA were to disregard an astronaut application from a 35 year old who graduated with honours from Princeton University and has 12 years of astronaut experience with SpaceX to hire a 23 year old who was middle of the class at University of Pittsburgh that likes to play the Space Simulator app on his phone, I would still be able to criticize that decision. Even though the 23 year old UPitt grad is probably still much more qualified than I am to go to space. As long as I make a valid argument as to why NASA should have chosen somebody else.

    • Posted by oh ima on

      your comment is micro-aggression at best, and racism at its worst. your comment contributes to systematic racism. As indigenous peoples, we have to be way better than non-indigenous people at our jobs just to be considered equal or qualified.

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      • Posted by Brambleberry on

        @ Oh ima

        No, just no. Anyone living in Nunavut knows full well that this is simply not the case.

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      • Posted by Northern Guy on

        If only your statement were actually true!

      • Posted by Thomas Shelby on

        Hello Ima, are you awake? They were self appointing up until a few years ago, many Inuits got a job based on race, not qualifications.

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  2. Posted by Official Languages on

    Courts are in English and French, These are the official languages of Canada, period.
    Stop with this bullshit of other indigenous languages, but provide a translator. Rights and laws are known to everybody, Caucasian, Indigenous, First Nations, Metis, and Inuit. There are over 50 languages and you cannot expect that everybody will be served based on the mother tongue. It’s already bad enough that there are special court rules for Inuit and other groups which makes offenders get off with a slap on your hand. Lori at her best…again. What else did you accomplish so far

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  3. Posted by Not so veiled on

    The veiled racists masquerading as champions of the meritocracy always come out of their caves for these stories. Sorry, The supreme court can’t just be old white men anymore. Get over it.

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    • Posted by No Moniker on

      Meritocracy is an ideal many people uphold as paramount. For us, it is the only true path to equality. Granted, I know that ideal is not always met, even within the small realm of ‘white men.’

      From that perspective social promotion, irrespective of who benefits, is understood as an ill and a degradation of our societal norms, something to be resisted not celebrated.

      Also from that perspective, it is not inconsistent to believe that diversity of opinion and background matter and contribute to a more well functioning society. I think they do. Yet I am not willing to suspend my other ideals to achieve that.

      To call this evidence of racism frankly betrays a superficial and unserious mind.

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      • Posted by Not so veiled on

        Meritocracy is a worthy goal and we should have the best people for the jobs. Unfortunately, it be delusional to think that has been what bodies such as the supreme court has enshrined in the past. The objections always come when the nominees are not white men.

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        • Posted by Objections To White Men on

          Yes, we all know that there were no objections to Justice Brett Kavanaugh in the US.

      • Posted by Warren Bernauer on

        To suggest that an Indigenous woman with an extensive legal career is unqualified to serve on the Supreme Court, and that her nomination could only mean she is being ‘socially promoted’ without merit, is an absurd position to take.

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        • Posted by Not so veiled on

          Absolutely correct. The threat these people feel for any kind of diversity is clinical. I would bet if this was a white man with same credentials there would be no criticism or a single question raised by No Moniker and associated ilk. They would be quick to attack anyone disappointed there wasn’t a nominee who would diversify the table.

          They automatically equate diversity to social promotion, their go to attack that veils their racism and privilege, especially here since she is obviously qualified.

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          • Posted by No Moniker on

            You appear to have missed what I said. Either that or you are intentionally misrepresenting it. I suspect the latter.

          • Posted by How it looks from here on

            To ‘not so veiled,’ your comment has the ring of religious zealotry.

            • Posted by Not so veiled on

              That was weak.

    • Posted by Northern Guy on

      With respect to an appointment to Canada’s Supreme Court there should be no other determining factor other than merit! To suggest that the idea of meritocracy is one to be shunned and avoided does a great disservice to Justice O’Bonsawin and suggests that she was chosen for other less valid reasons (which isn’t true).

  4. Posted by Lost Merit on

    I see I’ve triggered some individuals. Please understand I am neither a racist or misogenist. My query was not meant to degrade the nominee or suggest she is not accomplished, but rather to ask whether she is the most accomplished and if she really believes she is. People seem to be suggesting the qualifications are outstanding. That’s your opinion I guess. However, I’m sorry to say that 20 year lawyers are not uncommon. Administrative law practitioners are also common.
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    It truly is telling that individuals champion the idea of nominating individuals for traits other than merit. L
    .
    Let’s be honest and at least call it like it is if that is what happening. It seems labeling this accordingly is a problem for many although apparently the idea itself should be supported? Okay..
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    Oh well, I tend to think propogating equality of outcome instead of equality of opportunity is a bad idea for society.
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    Then again, I am a white male and clearly should not say anything but voice my unequivocal support for any person of color being nominated. Clearly I should accept there is no one else in all of Canada more qualified and that if they are, their skin colour should disqualify them. If I do otherwise I suppose I should selfevaluate and consider how my privilege and inherent racism drive my thinking to this conclusion.

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    • Posted by Southerner in the North on

      Dude! I’ve already pointed out that the current Justices have no background in the law in how it affects Indigenous persons, particularly the Gladue principles. This is the niche she is fulfilling in the Court.

      Whether you support the Gladue principles or not, they are the law of the land and to have a new Justice who is well versed and experienced in them is definite a big plus.

      Also of note, she is experienced in the law and how it relates to mental health, another area in which the current Justices have little experience.

      As for “most accomplished” or “best person” there is no absolute objective test of that. There is always a judgement call. In this case, the court is gaining expertise in areas in currently doesn’t have.

      While the Prime Minister makes the final decision, it has to be one of the seven qualified candidates recommended by the advisory council struck each time there is a vacancy in the Supreme Court.

      Quoting from Wikipedia:

      “The advisory committee includes a Member of Parliament from each recognized party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial Attorneys General, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges.”

      So, stop trying to paint this as a token appointment. She is qualified, she has been vetted by a multi-stakeholder advisory committee and she has expertise the Court needs. She is a sound choice and the fact that she can bring personal experience as an Indigenous person in Canada is the icing on the cake.

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      • Posted by Lost Merit on

        You imply that the Gladue principles are complicated or are some form of mystery, they aren’t – they are grade 1 law school. Your suggestion that no one else on the bench, or eligible for the bench, knows Gladue is categorically false.
        .
        There may be no absolute objective test for candidates, and because of that I am free to critique the nomination of the selection committee. You seem to be very upset that someone would ask whether the nomination is really the best choice, or if we are seeing selections pushed primarily based on skin color, and in this case I think we are. Again, I agree she has impressive credentials but in the legal field similar credentials are really common enough that it is fair to ask what factors contributed to her selection.
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        In the same way I’d only want the best surgeon, not just a good surgeon who ticks the right boxes, I think Canadians only deserve the best on our highest courts.

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        • Posted by Northern Guy on

          If Gladue were such a straightforward and simple legal principle it wouldn’t keep reappearing on the SCC docket and let’s not even begin talking about the varied and nuanced legal issues related to Section 35. To take your surgery analogy to its logical conclusion. If I am in the hospital for a knee replacement operation I would chose a decent orthopaedic surgeon over the best neurosurgeon in the country. Whether your limited world view is able to acknowledge this or not skill sets matter and Judge O’Bonsawin’s skill sets have been lacking from the court.

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        • Posted by Not so veiled on

          Can you show me your previous complaints of other supreme court judge nominations and their credentials? Or do you believe everyone currently and past sitting was the perfect choice? Just really curious as to how many other nominees you have so publicly questioned?

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          • Posted by Pangloss on

            Questioning is good, it is what makes the process work.

            • Posted by Southerner in the North on

              Let me revise that… good faith questioning is good.

        • Posted by Southerner in the North on

          And now you’re guilty of the same sin you have accused others of, putting words in my mouth.

          I never said that the current Justices don’t know Gladue, of course they do. But given the length of their appointments on the Court, I would wager that none of them have ever prosecuted or defended a case where the Gladue principles were a significant factor. O’Bonsawin has. That is an important distinction.

          Moreover, if you think Gladue principles, or any other legal principle, is “cookie cutter” law, then you have very little idea as to how the law at the appellate and Supreme Court level works. There are more court hours used each year in litigating disputes over written contracts than there are in criminal prosecutions. Contract law should be as basic as it can get, yet that’s where all the money is for the lawyers who want to get rich.

          You have every right to criticize an appointment, but from the outset you seem to have assumed that this was some sort of token appointment and, by my reading, you have sought to minimize her accomplishments at every turn. You have presented no evidence to support your position other than to say “there must be someone better”.

          Your analogy to surgery is not even close to how the law works. And I’ll guarantee that unless you are filthy rich and going to have your surgery done in the US, you have never had and never will have the “best” surgeon.

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          • Posted by Lost Merit on

            Words in your mouth? “none of the existing judges have significant experience in the law as it relates to indigenous persons, particular the Gladue principles”. Present tense.
            .
            As I said, this is false. I don’t have time to run over bios for a score of SCC judges but some of them have over 20 years on a bench before their appointment running criminal law and applying Gladue no doubt.
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            I’ll say again Gladue is not complicated. Appointing someone who has done a thesis on it is not likely to enlighten anyone. Why you are raising contact law and lawyers getting rich suggests you don’t practice and are out of your depth here.
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            My question stands as whether this is tokenism. It seems like it is. If it is, let’s just call it like it is and stop pretending merit is the main factor. Others have highlighted the PMs legacy of virtue signaling and I need not spell it out again.
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            I’ll just end telling Anon that the view from my troll bridge looks pretty good when not a single one of these posters with their shallow allegations of racism can even articulate a coherent let alone a persuasive reply.

    • Posted by Anon on

      The fact that you started off that statement suggesting that you’d “triggered” people, just because folks responded critically to your post, suggests that you’re little more than a troll. Please, go back under your bridge.

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  5. Posted by Context on

    I think the biggest thing that is missing from the comments is context on the experience of other judges selected for the Supreme Court of Canada in recent years. I do not have that context. I am aware that at least geographical representation has been a factor in addition to experience and competence. It would be useful for an informed discussion and debate to look at the credentials of other SCC judges and other factors that led to their nomination than simply looking at that one individual.

  6. Posted by Observation Post on

    This is an interesting thread.

    Vigorous debate is a good thing, we all swap our thoughts and knowledge and in the end, we hope, the most well thought out and better ideas prevail. We might even learn a few things from each other. This is how it should be in a Liberal democracy.

    Just a thought, if your strategy is to personally attack those you don’t agree with and call them bad names (“racists” or “clueless” for example), you are not only going to tune them out, you’re showing off a rather sparse tool box.

    • Posted by Not so veiled on

      Your point is a fair one, However, people seem to miss the point that their approaches to these types of situations are rarely equal. For example, I am willing to bet that had this story been about al white male appointee, it would have received very little comment on the credentials of the individual.

      That reflects a degree of racism and privilege that people need to acknowledge. I am all for ensuring people have the merit and qualifications to do a job, but questioning that merit from the basis of ethnicity, sex, gender, or sexuality is a demonstration of prejudicial bias.

      Before someone says they didn’t question based on the fact the nominee is indigenous, I will ask my question posted above again, show me the same level of interest about a previous Canadian Supreme Court nominee. I bet previous nominees barely even caught the attention of any of the commenters here.

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      • Posted by Observation Post on

        I don’t think it is surprising that there is more scrutiny here than you might expect to see with a ‘white’ judge. Consider the unusual focus on O’Bonsawin’s race by the media and the Prime Minister. This too is not ‘normal.’

        Historically, we know the PM has placed unqualified people into roles way beyond what their experience or skills have warranted (see Maryan Monsef, or more recently Laith Marouf). Living in Nunavut may of us commenting live this kind of thing every day.

        It is understandable, given that, how some might see an appointment like this as a continuation of that pattern. Or as a way for the PM to promote his own virtue, prioritizing his legacy over the integrity of an institution. Again, he has done it before.

        Of course, the integrity of the court matters, and it should matter to all of us. If there is anxiety here it is based on the process, and you might decide to call those anxieties racist. I don’t think they are.

        I believe the majority of white Canadians are comfortable with a judge of nearly any background, as long as we can trust that they are held to the same standards as any other nominee. We don’t want ‘token’ representation anymore than I expect you do.

        So, is O’Bonsawin qualified? I don’t have an answer for that. I do hope she turns out to be a strong and competent judge.

  7. Posted by Tulugaq on

    Obviously there are many comments here that come from individuals that have little if any knowledge of Canada’s court systems, other than TV shows. There are many issues that enter into play for nominating a SCC justice and among these considerations are the fluency in Canada’s official languages and the region they represent. This nomination is for Ontario and the pool of candidates is generally among the judges from that province. O’Bonsawin is a justice from the Ontario Superior Court and her background in itself, regardless of her Indigenous identity, makes her eligible for the position.

    Many of the comments would not have been made had the PM appointed a “white” justice, this is very obvious. Many of the commentators don’t have a clue of her achievements, background and diplomas and even less of the requirements of the position she will hold. She mentioned the Gladue principles and, again comments were made about this issue without any knowledge of how that works. The SCC had to issue a number of decisions on that principle because sentencing judges had a hard time grappling with this issue and were often misguided. Comments like “slap on the wrist” show the authors’ lack of understanding of how criminal law work and the sentencing principles that Canadian courts must apply.

    Finally, it is well known the Canadian court system is colonial and failed Indigenous people and the last of many reports in that sense was issued last month about Nunavik’s circuit court by a provincial prosecutor mandated by Makivik and Quebec’s Justice department, Jean-Claude Latraverse. It’s online and take the time to read it, you may better understand the issue.

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    • Posted by iThink on

      So the sum of your point is, “ya’ll don’t know what you are talking about, but I do?”

      Oh, and the court is ‘CoLoNiAl’ ergo, it;’s just plain bad and should therefore bend to whatever rules you think are appropriate?

      Your comments are as uninteresting and superficial as ever, Tulugaq

  8. Posted by Transparently Political on

    There is an interesting piece in the National Post this morning by Leonid Sirota (Professor of Law) titled ‘Michelle O’Bonsawin’s very limited qualifications for the Supreme Court: Her appointment is transparently political.’

    I realize there are a lot of legal experts commenting here, but this too is worth a read. Sirota’s point can be summarized as follows:

    “I repeat my verdict: Justice O’Bonsawin is not well equipped to address 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 of Canada. Her appointment is transparently political. It does a disservice to the court that will have to welcome her, and to the rule of law in Canada.”

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