An interview with the Honourable Justice Ian Binnie.

• Author: Bloodworth, Michelle
• Position: Ottawa Law Review's writers and former Supreme Court of Canada judge discusses the latter's hopes on the future of legal profession and development of Canadian law

The Honourable Ian Binnie received an LL.B. from Cambridge University in 1963 and an LL.B. from the University of Toronto in 1965. He practiced litigation at Wright & McTaggart and its successor firms between 1965 and 1982 and then served as Associate Deputy Minister of Justice for Canada until 1986. He was a senior partner with McCarthy Tetrault from 1986 until his elevation to the Supreme Court of Canada in 1998. He retired from the Court in 2011. Over the course of his distinguished career, Mr. Binnie served as legal counsel to the Government o(Tanzania, represented Canada before the International Court of Justice, argued before courts in most Canadian provinces, appeared as counsel before the Supreme Court on many significant cases, and, while on the top court, authored numerous landmark decisions.

The Ottawa Law Review's Michelle Bloodworth, Linden Gregory and Cigdem litan met with Mr. Binnie at the University of Ottawa. In this interview, Mr. Binnie offers insights derived from the breadth of his vast experience in law and discusses his hopes for, and concerns about, the future of the legal profession and the development of Canadian law.

L'honorable Ian Binnie a obtenu un LL.B. de l'Universite de Cambridge en 1963 et un LL.B. de l'Universite de Toronto en 1965. Il a exerce en litige au sein de l'etude Wright & McTaggart et des cabinets qui l'ont remplacee entre 1965 et 1982, il a ensuite occupe les fonctions de sous-ministre adjoint de la Justice du Canada jusqu'en 1986. Apres cela, il exercera a titre d'associe principal au cabinet McCarthy Tetrault jusqu'a son accession a la Cour supreme du Canada en 1998. Il a pris sa retraite de la magistrature en 2011. Au cours de sa remarquable carriere, M. Binnie a occupe les fonctions de conseiller juridique aupres du gouvernement de la Tanzanie, a represente le Canada devant la Cour internationale de Justice, a plaide devant les tribunaux dans la plupart des provinces canadiennes, a comparu a titre d'avocat devant la Cour supreme dans le cadre de nombreuses affaires importantes et, alors qu'il siegeait au sein du plus haut tribunal, il a ete l'auteur de bon nombre de decisions qui ont fait jurisprudence.

Une equipe de la Revue de droit d'Ottawa composee de Michelle Bloodworth, Linden Gregory et Cigdem litan a rencontre M. Binnie a l'Universite d'Ottawa. Au cours de cet entretien, M. Binnie fait part des reflexions que lui inspire sa longue et fructueuse carriere en droit et discute en outre des espoirs et des preoccupations qu'il nourrit a l'egard de l'avenir de la profession juridique et de l'evolution du droit au Canada.

January 7, 2013

The Honourable Ian Binnie received an LL.B. from Cambridge University and an LL.B. from the University of Toronto in 1963. He practiced litigation at Wright & McTaggart and its successor firms between 1965 and 1982 and then served as Associate Deputy Minister of Justice for Canada until 1986. He was a senior partner with McCarthy Tetrault from 1986 until his elevation to the Supreme Court of Canada in 1998. He retired from the Court in 2011. Over the course of his distinguished career, Mr. Binnie served as legal counsel to the Government of Tanzania, represented Canada before the International Court of Justice, argued before courts in most Canadian provinces, appeared as counsel before the Supreme Court on many significant cases, and, while on the top court, authored numerous landmark decisions.

The Ottawa Law Review's Michelle Bloodworth, Linden Gregory and Cigdem Iltan met with Mr. Binnie at the University of Ottawa. In this interview, Mr. Binnie offers insights derived from the breadth of his vast experience in law and discusses his hopes for, and concerns about, the future of the legal profession and the development of Canadian law.

Ottawa Law Review [OLRJ: What prompted you to pursue a career in law?

Ian Binnie [IB]: It was largely a matter of elimination of the alternatives. I had thought initially of psychiatry. I was then persuaded that this was a rather frustrating profession. I dallied a bit with journalism, but in the end it seemed that law was the most interesting of the talking professions.

OLR: h was clear to you that you wanted to talk for a living?

IB: Yes. I had gone from McGill (1) to Cambridge (2) and in both places I had done a lot of debating and enjoyed it. (3) I had also done quite a lot of theatre in my high school years and at McGill. (4) So it was a natural progression into the theatre of the courtroom.

M: I'm interested to hear that you did theatre. Were you able to draw on aspects of your theatre experience when you went into litigation?

IB: Yes. There is certainly a lot that has to do with creating a presence in a courtroom. In a theatre, of course, you have your lines, so it's all predetermined, whereas in a court, half the fun is its spontaneity. But in a sense, it's all performance.

OLR: It seems that these considerations that drew you to the law are probably similar to what drew you to litigation specifically. Did you always know that you wanted to be a litigator or did that interest develop during law school?

IB: I never really considered anything else, and what little attraction I felt for other areas of the law were dispelled when articling. (5) The idea of doing commercial closings with endless checklists and adapting forms and masses of boilerplate clauses just didn't appeal to me.

I articled with Bert MacKinnon, who eventually became Associate Chief Justice of Ontario (6) He was a very prominent counsel through the 1950s, 1960s and early 1970s before he went to the Court of Appeal. I essentially spent my articling year following him around, which is why I am a great believer in mentorship. I think law is a craft. Certainly courtroom tactics have everything to do with seeing how other people do it, learning it and then eventually finding your own voice. And the fastest route into the mysteries of the courtroom lies through mentorship.

OLR: This question of mentorship is quite timely. There has been a great debate recently in Ontario about the place of articling in the profession. (7) The Law Society of Upper Canada approved a pilot project where students will have a choice to undertake traditional articling or a cooperative program with additional courses. (8) A minority of the taskforce advocated doing away with articling altogether. (9) Do you feel that there is still an important place for articling in the profession or is it time to look to new alternatives?

IB: No, I think articling is very important. In part for the reasons I mentioned, but in part because it's in the interests of the public that before a new lawyer is unleashed in their midst, there be a period of practical experience outside the classroom. I think the articling crisis--and it is a crisis--is self-inflicted. (10) At the time I began practicing, lawyers felt a professional obligation to take on articling students and they never considered that they should be making money out of them. In fact, I never kept dockets as a student. As I say, I followed my principal around from courtroom to courtroom. I think the idea has emerged in the last 10 or 15 years that everything in the law practice has to turn a profit, apart from a fairly minor component of pro bono work." Now, articling students are seen in a totally different light. Lawyers should feel a professional obligation to give people coming into the profession the same benefits that they had, including articling.

OLR: Is this professional obligation something that we can institutionalize or encourage in some way, or does it have to come from practicing lawyers themselves?

IB: It has to come from practicing lawyers. But 1 know, for example, the Toronto Lawyers' Association has made a huge effort to spread the idea that taking articling students is a professional obligation that lawyers should respect. (12) But ultimately if the lawyers won't do it, they won't do it. That's what has landed the Law Society in this predicament. I think the problem with the majority proposal is there is going to be a Team A and a Team B: those who don't get articling positions will be stamped as not being attractive enough to be offered an articling job, and that stigma will be most unfortunate.

OLR: There was also discussion about the possibility of combining access to justice issues with the articling crisis finding a way to encourage those who cannot find traditional articles to work in, for example, communities that do not have as many lawyers, for legal aid, or in areas of the law where there is a lack of lawyers. (13) Do you think that the Law Society's solution was a missed opportunity to tackle both issues at once?

IB: It is a missed opportunity, but it raises a larger problem. Graduates from the law schools tend to want to go to Toronto or Ottawa or one of the major centres to article and work, while lawyers in smaller centres are crying tears because they can't find young lawyers to take over their practices. Well, if they don't offer articling positions, they aren't going to introduce young lawyers to the kind of community practice they have and they're not going to find replacements. So it's a vicious circle in these smaller communities and, as a result, the smaller communities are going to be very under-serviced for lawyers. At the same time, young lawyers coming into the profession are going to have their opportunities reduced.

OLR: Is there anything that you wish, given the state of the law now, you had been able to learn in law school? Are there ways that you think that Canadian law schools are Jailing down?

IB: Both. When I was at law school, the emphasis was very much on bread and butter topics. But they certainly forced you to take all of the relevant bread and butter topics. And when you emerged from law school, you had a reasonable background in tax and trusts, as well as all the usual subjects that are still regarded as essential. But we didn't have...