A federalism case with important consequences for Indigenous peoples is set to proceed without the Supreme Court of Canada's first indigenous judge.

Deciding to proceed with an odd number of judges to avoid a tie vote—and because one judge is the subject of an independent complaint—Chief Justice Richard Wagner designated Michelle O'Bonsawin, an Abenaki from Northern Ontario, to sit out.

The decision, as reported by The Globe and Mail, "disappointed some legal observers".

Torys litigation partner Andrew Bernstein told the Globe as Justice O'Bonsawin is new to the SCC some of her views, particularly on difficult federalism questions like this case, aren't yet known.

"But she is expected to be a strong voice on Indigenous issues and we will miss having that perspective," Andrew said.

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The Globe reported that since Justice Wagner's mandate began in 2017 the court had always sat with an uneven number of judges. It explains that the Chief Justice may have asked Justice O'Bonsawin to sit out by process of elimination.

A notable absence in court when this hearing began was that of Justice Russell Brown, who was placed on leave in February after a complaint was lodged against his conduct outside the courtroom. "In hearings, Justice Brown is tenacious and well-prepared. Supreme Court hearings are a give-and-take between judges and counsel," the article says.

"His absence leaves us without his usual deeper dive into the text and structure of the Act itself," Litigation partner Jeremy Opolsky told the Globe.

"Likely the federal government got off much lighter without his presence on the bench."

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