Former Supreme Court Justice Ian Binnie visited the Faculty of Law on Wednesday, October 23rd, where he spoke to a group of students and faculty on the topic of judicial activism. Binnie gave an animated presentation where he recounted going from practicing slip-and-fall law on Bay Street straight to crafting a Supreme Court ruling on Quebec secession.
Binnie described judicial activism as a term of abuse used to dismiss unpopular decisions. The concept is “an illegitimate importation from the states,” Binnie said. While the United States can draw on the writings of Jefferson, Adams, and Hamilton to ascertain the framers’ intent, he added, Canadian constitutional instruments often lack any original intent, such as in the case of the “scribbled” together British North American Act. Other constitutional tools, such as section one of the Charter of Rights and Freedoms, are simply too vague to be interpreted strictly. However, he did suggest that there is room for legitimate debate on the role of the Court, such as in cases where judges create solutions that have no grounding in the text at all.
Nadia Zaman (2L) sat down with Justice Binnie after his presentation to talk about the state of the legal profession.
Do you think judicial activism is more of a problem now than it was before?
No, I don’t think so. As I pointed out, I think judicial activism is just a label that people apply to decisions they don’t like. Quite often, people in contrary positions attack the court, each under the name of judicial activism. I think there are areas where the court is called on to be creative, but in most of those areas it is just as creative to say no as it would be to say yes. So in neither of them can you really describe the position as activist.
Chief Justice McLachlin said in an interview that she favours gender parity on the bench, and this is especially timely given the recent appointment. What are your thoughts on this?
I think the bench requires a measure of diversity. At the time that I left, there were 4 women and 5 men. I don’t think there’s any particular magic in the 4 and the 5. I think there are many diverse interests and they are represented on the court. One of the complaints in the Aboriginal community is that the court keeps dealing with Aboriginal issues and nobody with an Aboriginal background is on the court. So yes, gender is important – it’s not the only important issue. I think the expectation is that when the next appointment comes up from Quebec, it will be a woman. There are certainly many highly qualified women in the Quebec courts. But I think the numbers game can be misleading.
Given that you were appointed without ever being a judge, do you think it’s important to have diversity of experience on the bench?
Yes, I think that’s part of diversity. I think when I joined the court, Chief Justice Lamer had been a judge for something like 25 years, so he was a long way from the realities of practice. The continuity that he brought to the court was extremely important, but it’s important also to have other people – an academic, Frank Iacobucci, former dean of the law school, on the bench; Louise Arbour, another academic. So all different areas within the legal community that have something of interest to say and to the extent that this is reflected in the court, I think it’s a good thing.
So would you say that your experience informed your opinion in the case of Grant?
Yes, I think I tended to view legal problems in quite concrete terms – as to what works and what doesn’t work and how people really interact with the police in real terms. I thought the view taken by the majority was unrealistic. And I think a large part of my thinking was based on my experience in practice, and that practice included a number of attempts to correct wrongful convictions including the Guy Paul Morin case. So all of that background is something that I brought to the table. Other people brought different things to the table. And the idea is with nine judges, the sum total of all the backgrounds and experiences and viewpoints produces the best results.
What do you think makes a good advocate?
Focus. I think the major problem with young and old lawyers is they ramble around and it’s difficult for the court to figure out what they are saying and why they are saying it. The advice usually given to young advocates is to get to the point, be brief and be gone.
Was there any particular case that threw you into a moral dilemma?
The case that bothered me most probably was the Jehovah’s Witness girl who was not yet eighteen – who was according to the doctors in need of a blood transfusion. But at the same time the medical committee at the hospital said she was perfectly adult in her capacity to judge whether she wanted the transfusion or not. She appreciated the consequences, she was not influenced by her parents, she was acting based on her religious belief. I thought and I think that forced medical treatment is an extremely serious invasion of personal autonomy and the state has to have a reason for doing so and in that case it didn’t, because the hospital itself negatived any disability arising from age. And the Manitoba legislation, unlike the law in some of the other provinces, made the presumption of her incapacity irrebuttable. So no matter what she said, it was not open to her to resist the blood transfusion. So I thought that was very difficult.
To what extent do you think judges’ ideological beliefs inform their opinions?
Well, ideological is a bit loaded. I don’t really think you could point to many judges in the Canadian system who act based on ideology. I do think that judges’ values certainly are an important part of making legal judgments. For example, if you are wholly unsympathetic to the Aboriginal population, or if you believe law and order is of prime importance, then your decisions will tend to flow out of your basic convictions. But I hope that the judges who do have strong convictions are still sufficiently non-ideological that they will look at particular cases on the merits and adjust their views accordingly.
What worries you the most about the profession?
Well I think my concern is that the profession is becoming less professional and is becoming far more focused on law as a business and focused on maximizing income. As a result, we have a huge access to justice problem in this country –we have self-represented litigants required to deal with, in court, issues where a lawyer is essential. You certainly have an increase in wrongful convictions. You have an increase in marital disputes that get out of control because the parties are dealing nose-to-nose. So the ability of the profession to service the legal needs of the community is a problem, and I think it flows from a lack of sense that we owe the public delivery of legal service. And I think lawyers need to be reminded – they are aware of it, but they need to be reminded – that the monopoly which we enjoy in courts is a privilege. And generally speaking, monopolies that don’t meet the needs of their customers lose the monopoly. And I think maybe that’s the way we are going, the direction we are traveling. I think more and more of what we now see as the preserve of a lawyer will be taken over by paralegals, conveyancers, people who specialize in drawing up wills of a simple kind. So the world will adjust to the lawyers. My hope is that lawyers will first adjust to the world, and vindicate the values of the profession.