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 watch.”