In Praise of Oral Advocacy

• Author: W. Ian Binnie
• Pages: 17-48

In

Praise

of

Oral

Advocacy

Justice

W.

Ian

Binnie*

[Editors'

note:

This article

is the

edited text

of the

third

Charles

Dubin Lecture

on

Advocacy, presented

on 23

October

2002.]

It

is a

great privilege

to be

asked

to

give this year's Dubin Lecture

on

Advocacy.

I

read with

interest

the

contributions

of my two

predecessors,

Edward

Greenspan, Q.C.,

and Sir

Sydney Kentridge, Q.C., whose lec-

tures

offered

up a

witch's brew

of

tendentious

preaching, over-arching

generalities, ethical lapses, comic relief,

and

moral ambivalence.

I

intend

to

continue

in

that tradition.

At

the

time

I was

called

to the

Bar,

we

didn't have

to

suffer

through

too

many lectures

on

advocacy.

We

still

had the

apprenticeship system.

The

junior lawyers

followed

the

senior lawyers around,

and

eventually

we

grew into mutant copies.

So

Walter Williston's juniors learned

how

to

mumble, some

of

Barry

Pepper's juniors acquired

fake

English

accents,

and

George Finlayson's juniors developed what today would

be

called

an

"attitude problem."

Even

physical attributes were copied. Mal-

colm

Robb

had

been shot

up as a

fighter pilot

in the

Second World War,

which caused

him to

carry

his

head

at an odd

tilt.

His

juniors carried

their heads

at the

same tilt

—

though none,

to my

knowledge,

was a war

Mr.

Justice

W. Ian

Binnie, Supreme Court

of

Canada.

17

i8

ETHOS, PATHOS,

AND

Locos

hero. Charlie

Dubin's

juniors tended

to be

quite bright,

but

they

all

talked

too

much.

I had the

privilege

of

articling

for

Bert MacKinnon,

who was a

perfect

gentleman.1

The

Dubin organizing committee suggested that

as I am the

first

of

the

Dubin

lecturers

to

speak from

the

exile

of the

bench,

I

could useful-

ly

say

something about appellate

advocacy.

If I

knew then what

I

know

now,

would

I do it

differently?

Some lawyers

say

that oral

advocacy,

particularly

in the

Supreme

Court,

is

less important than

it

was and

less important

than

written

advocacy,

but I

don't believe

it. I am

going

to

spend

the

next

few

min-

utes trying

to

explain

why I

don't believe

it. The big

difference between

a

factum

and an

oral argument

is

that

the

factum

gives

you a

crack

at us

but,

from

the

judges' point

of

view,

the

oral argument gives

us a

crack

at

you.

It is in the

heat

and

apparent confusion

of

that exchange that appel-

late victories

are

often

determined. This

is not

because good lawyers

can

get the

weak judges

to

make

bad

law,

but

because

on

occasion

a key

fact

or

important legal principle,

differently

appreciated,

can

push

a

close

case

one way or the

other.

Any

competent advocate

can win (or

lose)

a

9-0

unanimous

judgment

in the

Supreme Court

of

Canada,

but it

sometimes takes serious skill

to

push

the

court over

the

line

on a 5-4

split.

The

relationship

between

the

judge

and the

advocate

can be

mutu-

ally

destructive

or it can be

quite heartwarming.

I

have

a

nostalgic recol-

lection

of a

winter morning

in

1982,

when

I

happened

to be in the

Supreme Court. Justice Ronald Martland

was

retiring,

and

there

was

what

is

quaintly called

a

"swearing-out ceremony."

The

Attorney Gener-

al

of

Canada

and the

Attorneys General

for

some provinces

and

various

dignitaries were

there

to say

nice things about

his

decades

on the

bench.

When

it

came time

for

Justice Martland

to

respond, which

he did

with

wit

and

emotion,

he

turned

to Mr.

John Robinette, Q.C.,

who was

there

to

represent

the

practising bar,

and

said words

to the

following

effect:

When

I was

appointed

to

this

Court

on 15

January

1958,

I was

greeted

by

John

Robinette,

Q.C.,

on

behalf

of the

legal

profession.

Now

that

I

i

In

this ongoing tradition,

I

wish

to

express

my

appreciation

to my law

clerk,

Patri-

cia

McMahon,

who was

able

to dig up the

citations

for my

more

obscure

refer-

ences

including, incredibly,

the

citation

of the

"swimming pool ledge"

case

in

note

13,

infra.

In

Praise

of

Oral Advocacy

19

am

leaving, twenty-four

years

later,

Mr.

Robinette

is

here

to say

good-

bye,

now as

then

the

dean

of the

Supreme Court bar.

It

was a

poignant moment

as the

departing justice

and the

great

advo-

cate

saluted each other across

a

lifetime

of

practice

and

almost

a

quarter

century

of

pitched battles

at the top end of the

legal system.

Other eminent counsel never achieved this rosy glow

of

judicial

acceptance.

I

refer

to a

recent character sketch

of

Justice Milt Har-

radence,

who

retired

six

years

ago as a

judge

of the

Alberta Court

of

Appeal.2

Justice Harradence

was a

leading member

of the

criminal

defence

bar in

western Canada.

So

great

was his

eminence

that

it was

said

in the

Calgary

press that

"if

you're guilty, call

Milty."

His

biographer

tells

of the

time

he

accompanied

Milt

Harradence

to

Ottawa

on an

appli-

cation

for

leave

to

appeal

a

conviction which they both regarded

as a

fla-

grant

miscarriage

of

justice:

Milt

had not had

great

success

as an

advocate before

the

Supreme

Court

in

Ottawa.

In

fact,

his

experiences before that nest

of

remote

and

chilly autocrats

who

peopled

its

woolsack

in the

early

'6os

was

discouraging

to say the

least.

I

accompanied

him

once

as his

junior,

and

it was a

horrible experience. This

was an

application

for

leave

in a

criminal matter, meritorious

I

say,

and the

Court

was

singularly unre-

ceptive.

I

marveled

as my

Learned Senior crawled

uphill

on

broken

glass

to be

summarily kissed off. Later,

we

walked

the

icy, windblown

streets

of the

foreign capital,

two

alienated aliens, strangers

in a

weird

land. "Let's

get out of

this

Goddamn place," growled

Milt.

"Let's

get

back

to

Canada!"3

I

have spent

my

professional lifetime trying

to

figure

out

what makes

the

difference between getting "kissed off"

by

appellate judges

and

being showered with their compliments

on

great state occasions.

There

are a

handful

of

advocates

who

could tell

us. I do not

pretend

to

be

among them.

My

Lord

Dubin,

who is

rarely silent

on any

subject,

so

far

seems reticent

to

share with

us the

secrets

of his

professional suc-

cess.

He has

left

it to

others

to

give lectures that

he

could more authori-

tatively

provide himself. Perhaps

it

could still

be

said,

as it

used

to be

2

CD.

Evans,

Milt

Harradence:

The

Western

Flair (Calgary: Durance

Vile

Publications,

2001).

3

Ibid,

at

270.