A Survivor's Guide to Advocacy in the Supreme Court of Canada
| Author | W. Ian Binnie |
| Pages | 239-256 |
A
Survivor's
Guide
to
Advocacy
in
[Editors'
Note:
The
following
is an
edited text
of the first
John
Sopin-
ka
Advocacy
Lecture
presented
to the
Criminal
Lawyers'
Association
at
Toronto,
27
November
1998.]
John
Sopinka died almost exactly
a
year
ago
this week,
and it is
very fit-
ting
for the
Criminal
Lawyers'
Association
to
inaugurate this series
of
lectures
to
perpetuate
and to
honour
his
great talent.
It is a
double hon-
our to
have John's daughter Melanie here.
She not
only shares
her
dad's
feistiness
but is, as her
opponents have come
to
appreciate,
a
very
con-
siderable advocate
in her own
right.
It
seems somewhat less
fitting
that
I
should
be
called
on to
give
the
first
of
these lectures. John Sopinka
fit
neatly into
the
long line
of
hero-
ic
counsel reaching back
to
Edward
Blake,
and
descending through
W.N.
Tilley
to
John Robinette
and
others,
including
Bert MacKinnon
and
John's
contemporary,
Ian
Scott,
in our own
day.
The
most
I can
claim
is
that
I am a
survivor,
but in
this room
we are all
survivors. What
I
have
to
say
today should therefore
be
seen
as a
survivor's guide
to
advocacy
in
the
Supreme Court
of
Canada.
Mr.
Justice
W. Ian
Binnie,
Supreme
Court
of
Canada.
239
the
Supreme
Court
of
Canada
Justice
W.
Ian
ETHOS,
PATHOS,
AND
Locos
The
first
point
I
want
to
make about John Sopinka
is
that
he was a
man
with
an
attitude
—
only
in
extreme
circumstances
would
he tug his
forelock
or use the
phrase "May
it
please
the
court."
He
liked
to win
cases.
He
didn't think
it was his job
necessarily
to
give pleasure
to the
court.
And he
never knew when
he was
beaten.
The
last occasion
we
worked
together
was at the
Sinclair Stevens inquiry
the
year before
John's appointment
to the
Supreme Court.
He was
representing
Mr.
Stevens
in his
personal capacity,
and I did so in his
government capaci-
ty.
Of
course,
the
hearing
in the end
was, unfortunately,
an
overall
dis-
aster
for
"Sine."
It was
said that
the
only difference between
the
sinking
of
"Sine"
and the
sinking
of the
Titanic
is
that when
the
Titanic sank,
there
was a
band playing. John exhibited
his
usual defiance
and
resilience
as the
icebergs closed
in. In one of the
numerous motions
to
exclude
evidence, which were invariably lost, John began
by
saying,
"I
have
three arguments,
one is
hopeless,
the
other
is
arguable,
and the
third
is
unanswerable."
The
commissioner, somewhat impatient, said,
"Well,
why
don't
you
just
give
me
your best argument." John said, "Oh,
I
am not
going
to
tell
you
which
is
which."
The
Mother
of
All
Juries
Another
of
John's great strengths
as an
advocate
was his
ability
to
adapt
his
personality
and
strategy, depending
on
what court
or
tribunal
he was
addressing.
I
only
saw him
once argue
a
case
in the
Supreme Court
of
Canada.
Instead
of the
usual
"in
your
face"
style that
he
preferred before
trial courts,
he
adopted
an
altogether more conciliatory approach, pitching
his
case
one way to one
judge
and
another
way to
another judge
as he
looked back
and
forth
around
the
semi-circle
of
wintry faces from
end to
end of the
bench. Unlike some counsel,
he
didn't
focus
all of his
argument
at
the
middle
of the
bench, where experience
is
deepest
but the
votes carry
no
more weight.
like
the
experienced violinist that
he
was,
he
played
to
every
corner
of the
auditorium.
It
struck
me
then,
as he
challenged each
judge
in
turn, sensing
who was
leaning this
way or
that, that
his
argument
before
the
Supreme Court
of
Canada
was
very
much
in the
style
of a
jury
address.
An
address,
if you
will,
to the
mother
of all
juries.
It is a
style
that
works
well
at the
Supreme Court.
In
some
ways,
the
criminal bar, with
its
constant exposure
to
jury
work,
is
probably better adapted
to
arguing
an
appeal
before
a
court
of
nine judges than
is the
civil litigation bar.
240
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