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September 15, 2011: Justice Ian Binnie photograph at the Supreme Court in Ottawa. (Dave Chan/DAVE CHAN/The Globe and Mail)
September 15, 2011: Justice Ian Binnie photograph at the Supreme Court in Ottawa. (Dave Chan/DAVE CHAN/The Globe and Mail)

SUPREME COURT

A rare look at the inner-workings of the Supreme Court of Canada Add to ...

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.

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“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 Reference.

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.”

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