September 15, 2011: Justice Ian Binnie photograph at the
Supreme Court in Ottawa
DAVE CHAN/The Globe and Mail
At lunchtime each day, Supreme Court of Canada Justice Ian Binnie joins his
eight colleagues in their private dining room. They joke, gripe and gossip about
lawyers and other judges, covering every conceivable topic except the one
foremost on their minds – the cases they must decide.
Lunching together and avoiding after-hours fraternizing are part of a
concerted plan to eliminate the sort of fractious infighting that has been all
too common on previous benches, Judge Binnie said in an exclusive interview to
mark his retirement after serving 14 years as a backbone and intellectual leader
of the court.
“The worst fix we could get into is to have little cabals discussing their
perspective and voting in blocs,” the 72-year-old judge said. “We don’t want
judges going from room to room, pigeonholing colleagues and then presenting
other colleagues with: ‘Well, I’ve already got four judges to agree with me, and
that’s the outcome of the case.’ ”
In a three-hour discussion – the only such interview he has ever given –
Judge Binnie provided penetrating glimpses into an institution known for its
secretive nature, at a time when the bench is entering an unsettling period of
transition with five judges slated to be replaced by 2015. Widely seen as a
towering intellect who is arguably the country’s premier judge, he spoke with
the easy candour of a man who has spent his career as a renowned advocate.
Judge Binnie defended the court’s productivity and ideological balance. He
spoke with pride of some of his favourite cases and with wry humour about how
nine opinionated jurists achieve consensus. And while he acknowledged that the
court will look very different once Prime Minister Stephen Harper has completed
rebuilding it, he said the institution will endure.
“One of the things that always impresses me about the court is that it’s like
a freight train that is moving inexorably,” he said. “You come in the morning
and hear a case that is highly controversial. Views are sharply divided. But the
train keeps moving. A decision is produced. At the end of the day, we will all
be alive and on speaking terms.”
A jarring switch
Appointed in early 1998, Judge Binnie faced a jarring psychological switch
from a thriving, lone-wolf litigation practice at Toronto’s McCarthy Tétrault
law firm to a bench of nine judges whose mission is forging consensus. This new
reality was thrust home with his very first case – the Quebec Secession
The differences between his previous life on one side of the bench, and where
he found himself now, were immediately apparent. As a lawyer, he experienced a
great rush of adrenalin as the judges made their grand entrance into the hushed
courtroom. As a judge, he found the march into the courtroom almost monotonous –
like merely showing up at the office.
“The argument takes place and everybody gets engaged and worked up and there
are questions and debates and controversy; then, the case concludes,” he said.
“There is this great shifting of the load. The lawyers walk out free as a bird –
they have done their thing. As far as they are concerned, the thing is in the
can and they can go off for a slap-up lunch. But the judges drag themselves out
of court, carrying this huge burden of how they are going to decide the case.”
It was also an early lesson in the need to compromise, and carefully parse
every word of a decision. “When you see a judgment by the court, it will quite
often be the result of a process of sandpapering the rough edges, taking out the
little flashes or colour and reducing it to a vanilla flavour,” Judge Binnie
said. “It makes for a laborious process, but at least I have confidence that my
colleagues are not chitchatting behind closed doors without my knowing it.”
A single judge is assigned to write a draft ruling. Others judges then
append words or conclusions they hope to see added to it for them to sign
on. There is an ego-bruising rigour to the process.
“It is extremely
frustrating, when you feel you have written an elegant and clear exposition
of the law, to have your colleagues jump all over it and complain about
this, that and the next thing,” Judge Binnie said. “On the other hand, when
a judgment is released, it is a great comfort that eight other people have
been pounding away at it and pointing out the gaps in what you thought was a
seamless piece of great scholarship.”
Other major cases during his tenure included the Chaouilli ruling on the
constitutionality of privatized health care and the case of Robert Latimer,
who was convicted of murder in the mercy killing of his child.
During his years on the bench, the court has been criticized for dropping
its annual output from a range of 110 to 150 judgments a decade ago to less
than 70. The figures are “essentially meaningless,” he said, since a minor
case can require little advance preparation, whereas a major case can mean
sifting through thousands of pages of documents.
Judge Binnie was also quick to deny that the court is stingy about
granting leave to appeal (“We have never, in my almost 14 years on the
court, turned a case down, saying: ‘We’ve got too much on our plate.’”);
that it dodges some of the toughest potential cases (“All you really have to
do is look at the Rules of Practice and understand that your function is to
kick the ball up in the air in an interesting way and the judges will grab
it.”); and that judges are too intrusive during oral hearings (“When
[inexperienced lawyers] get to the Supreme Court, they don’t have a sense of
how to make an argument in less than an hour. They waste a lot of time.”)
The skills displayed by a top Supreme Court lawyer are precisely the same
as those that win arguments in judicial conferences that follow each
hearing, he said. “The effective judge is the judge who frames the question
in a way other judges accept as a legitimate characterization of what we
have to decide,” Judge Binnie said. “You’ve got nine people who all approach
it from that perspective and, of course, there are collisions.”
Court faces serious challenges
The Supreme Court that Judge Binnie leaves behind will face serious
challenges. Critics on the ideological right blame it for altering laws to
suit the judges’ personal preferences. Those on the liberal left disparage
the court as being unadventurous and overly compliant to legislators.
To Judge Binnie, however, judicial activism is a handy slogan that
misstates the evolution of Charter jurisprudence. The bench under chief
justices Brian Dickson and Antonio Lamer drew expansive boundaries to raise
the Charter from infancy to adolescence. The McLachlin court has applied
subtle shading within those lines.
“I see the McLachlin court as a consolidator rather than a cutting-edge
innovator,” he said. “Which is not to say I see the court as timid. I think
the court is very forceful when it sees the occasion to be. But I think the
legal landscape has changed and the court has evolved with the landscape.”
He foresees trouble ahead, however, thanks to runaway trials that drain
scarce resources. A key problem is lawyers who are hard-wired to hunt for
anything that could help their case, “in hopes of finding the pot of gold
that will get the result they want.” It may be time for trial judges to be
given the power to set strict deadlines for the completion of a case, he
said. “I think that trial judges eventually have to take back control of the
courtrooms,” he said.
A frequent champion of those rights, Judge Binnie defended his approach as
being consonant with public attitudes. “I think the level of support for the
rights of the accused in Canadian society is surprising,” he said. “People
somehow identify with the person in the position of an accused.”
In one of
his most-cherished judgments, R v Burns and Rafay, the court held in 2001
that Canada cannot extradite individuals who might face the death penalty
abroad unless they have assurances that the defendant will not be put to
death. The ruling effectively precluded the death penalty ever being brought
back in Canada.
Another favourite involved a rural Ontario couple awarded $1-million in
punitive damages against an insurance company that had refused to pay after
their home burned down. “It seemed to me that on a human scale, a massive
injustice had been corrected and a very powerful message sent to the
insurance industry,” Judge Binnie said. “Occasionally, you feel that you
have really made a difference.”
Judge Binnie plans to return to practice in a large firm. He hopes to be
remembered as a judge who did not shy away from the most difficult issues,
who tackled them with blunt honesty.
“I see it as a giant relay race where the baton is passed from judge to
judge to judge to judge,” he said. “You are there for a short time and you
have a huge responsibility to make sure the baton isn’t dropped on your
The sheer arrogance that evolves to those appointed to
the judiciary is frightening in the extreme.
Highly respected lawyers become increasingly aloof with their years on the
bench. They develop a "god given" right to assume what they think is going
on in people's heads, without even bothering to read the pleadings.
If its suggested that they are engaging in speculation, they are just as
likely to threaten you with a contempt order.
Its amazing what it takes to get a judge to actually read the pleadings when
they show that they don't even read the pleadings of any one they deem not
worth reading or not entitled to have a hearing before the court.
Across Canada, Male Sharia Law is enshrined in our law, male apartheid is
practiced in the courts with illegal reverse onuses that has its own
language designed to remove legal rights.
The classic is "an able bodied man", means, because a man has two arms and
two legs, he regardless of circumstances, such as education, age or
experience, is to have an income imputed to them and if he can't pay, he
will be indefinitely incarcerated in Ontario's debtor's prisons.
The Supreme Court is a court of supreme arrogance where its role is that to
enforce the illegal notions that defy the fundamental principles of justice
that will ultimately, send society down a spiral gurgle of social
The Supreme Court of Canada is a political
weapon in the hands of what ever government happens to be in power,
comprised to make politically correct decisions that defy legal logic, defy
legal reasoning to the point that legal experts toss a coin to make
predictions on how the Supreme Court will make decisions.
The Canadian Supreme Court instills a lot of hatred and loathing by those
who become victims of the incestuously corrupt cartel called the legal
profession comprised of lawyers and the judiciary who work together in a
politically motivated scam that has nothing to do with justice and
everything to do with abuses of absolute power and protecting those who have
The most disgusting fact is that there is NOT ONE recorded case in the
Supreme Court of Canada of a self represented litigant having any success.
Its a feminist court, its goals are similar to those of the Court of appeals
which are stacked with extreme feminists hell bent on their missions to
apply Male Sharia Law.