The high fees are a reflection of what the market will bear. There is no doubt that lawyers’ sense of entitlement has greatly increased over the time I’ve been at the bar. Lawyers didn’t used to expect to be as wealthy as their clients, whereas now, their clients hope to be as wealthy as their lawyers. But there are still an awful lot of lawyers out there working at low fees, doing pro bono work, taking on legal aid cases because they believe that’s their function. So, there is no doubt that access to justice is a huge problem, but I don’t think its as simple as blasting a few Bay Street firms for what seem to be very high legal fees.
You’ve seen a lot of cases involving tough sanctions. What are your feelings about the virtues of getting tough; using prison as an instrument for reform, and so on?
I’m not going there!
Are you planning to practise? Mediate? Arbitrate?
I will link up with a law firm in Toronto. I don’t know where. I really can’t talk to anybody until I’m free of the obligations on the court. But I’m not planning to walk around Africa. I’ve already done that. I think the market for aging litigators who spent some time on the bench would be opinion work, arbitrations, mediations. It depends very much on your interests. Some of my colleagues are interested in corporate law and have gone to sit on boards. I’ve always loved the kind of life and energy of a law firm. Controversies. Competitiveness. The sense of engagement. I look forward to getting back to that.
What will you miss the most?
What I’m looking forward to is return to what I very much liked before I went to the bench, which is the atmosphere and camaraderie of a law firm. What I will miss is the sense of being at the centre of legal events and having one voice amongst nine as to how they should be disposed of. It’s an extraordinary privilege to be called on to contribute at that level and it was huge honour to participate as much as I did. I sometimes think of the Supreme Court of Canada as an engine for making decisions. I hope I have emphasized enough that it has been an exceptional honour and a privilege to serve on the court for almost 14 years.
Summing up your judicial career, what legacy would you like to leave? The writing you did? The role you played in persuading the court in conference? A certain area of law you influenced?
I would say my hope is that I’m regarded as a judge who met issues head on; who didn’t slide off the point or twist the law or mess around with the facts. That if there were difficulties with a particular case I faced up to them and dealt with them as best I could, so particularly the losing party might say: ‘Well, I disagree totally with what Binnie wrote, but I have to admit he dealt with my arguments and whether I agree with him or not, it was an honest judgment.’
I would like to be remembered as a judge who didn’t shy away from the most difficult issues but tackled them head on with blunt honesty. Beyond that, if it doesn’t sound too corny, I think what my decisions show is a profound belief in a decent and civilized society where the law affords people as much scope as possible to make whatever they can of themselves, but an equally deep belief that the people have to take responsibility for whatever it is that they decide to do.