Ahmed Farahat of UWO’s new law paper interviews Justice Ian Binnie. From the February issue of Amicus.

If I can start by asking you: when did you first decide to embark on a career in law?
I think when I was in college. I arrived at it by a process of elimination. I could see all sorts of jobs that I was congenitally incapable of doing. I did a lot of debating in my undergraduate years, and becoming a barrister seemed like fun.
I noticed in your biography on the Supreme Court’s website that you did your LL.B. in Cambridge. Why did you get your law degree from the UK?
At the time I went, Ontario accepted entry to the British bar to go straight to the Bar Admission Course. So I thought: here is an opportunity to see another part of the world and get an educational qualification that is recognized in Ontario. Unfortunately, when I was away they changed the rules and when I came back, they said well, now you have to get an LL.B. from an Ontario law school. Seemed like a good idea at the beginning.
How was the Cambridge experience different from the one you had here at the University of Toronto?
The experience in the UK is totally different from University of Toronto. In the UK, they studied medieval English, Roman law, and all kinds of topics that were absolutely of no practical importance whatsoever. Toronto, when I got there, was experiencing quite a golden age with Bora Laskin and many interesting professors. So there was eventually no duplication at all between the three years I spent at Cambridge and the two years I spent at Toronto. And there is no doubt that Toronto’s education was of a higher order. The English system has law as an undergraduate degree, so you go straight from high school to law, whereas in Canada, students already completed their undergraduate degree. In England, there was no real reason to go into law other than escaping history and literature and all the other courses you performed poorly in during high school.

Shifting gears a bit, how did you initially view the Charter when it passed? Did you expect that it would have the dramatic impact it would come to have in Canadian law?
I was Associate Deputy Minister of Justice when the Charter was adopted. There wasn’t any expectation from the government that the Charter will become such a popular icon, such a cultural identification of Canadians with their rights. I am very glad that the Charter had the impact it had, but I don’t think it was envisaged even by Trudeau to achieve the centrality to Canadian culture it now has.
Say it’s 1982, and you were shown a preliminary version of the Charter. You were asked to recommend changes. What would those be?
Well, in fact I was privy to the Charter put forward by the government. And that document was much more limited than the one that ultimately became the Charter. If you look for example at the draft of s.15 that was proposed by the government, it was quite a limited anti-discrimination provision. It was the parliamentary committee that expanded it enormously by adding everything that follows the words “and in particular”. So these very broad, general equity rights were not suggested by the government, but they were part of the parliamentary activity. I think there is some language in the Charter that might be a little clearer than it is. But as a constitutional document, the Charter fits in well with the European Convention on Human Rights, the Bill of Rights in the US, and other constitutional documents. I think it has withstood the test of time very well.
Moving on to the part of your career as a Supreme Court judge. How did you know that you were being considered for a position on the Supreme Court?
Very shortly before I was appointed, John Sopinka died at the end of November 1997. I was in practice with McCarthy Tétrault at the time. I got a call early in December asking if I would be interested in the position if asked. I didn’t really take it as a very serious request. The Department of Justice was compiling a whole lot of names that would eventually go to somebody who would make a short list. So on the basis that I was a very remote candidate, I said, yes of course – if nominated, I would accept it. And then there wasn’t very much feedback until shortly before the appointment was made. There was a certain urgency, because the Quebec Secession Reference was pending before the Supreme Court, and Chief Justice Lamer said that he wasn’t going to sit without a full court. So the government was anxious that the Quebec Secession Reference proceed and so they were consequently anxious that the nomination proceed. So I got a call a couple of days before I was appointed, to confirm again that yes indeed, if nominated, I would accept it. And I think the short list went to Cabinet, and whatever criteria they applied, my name came out.
In the US Supreme Court, one could predict in advance how the judges will rule on particular issues, such as abortion or capital punishment, given their known political affiliations. My question is twofold: why is such polarization of opinion not present on the Supreme Court of Canada, and secondly, is it realistic to expect that judges shed their personal beliefs and opinions when sitting on a case?

Well, on the first point, I think that the polarization in the US Supreme Court reflects polarization in their politics. And because the selection process has become such a matter of political controversy that they look for people who agree with them – that is to say, Congressional Democrats want somebody who agrees with them, and Congressional Republicans someone who agrees with them. So the candidates whom they are interested in having nominated are almost, by definition, people who have strongly entrenched views. We don’t have that up here. When I was appointed, nobody had any questions about what I thought about any aspect of jurisprudence.
You were not asked to give a preliminary opinion on what you thought about the Quebec Secession Reference?
No. That would have been entirely inappropriate. My selection was just based on consultations within the legal community as to who should be appointed. On the second question, I don’t think a judge can put aside a lifetime of experience but I think you do appreciate that you are not there as an individual, but as part of the system of justice. It is not appropriate that I impose my personal views on the constitution. You try to divorce your personal views from what you think should be the proper legal conclusion. And I think there is an overestimate on the part of people who comment on those things that personal prejudice plays a larger role than it does in determining, for example, rights under the Charter. There is a lot of precedent in the European Courts, the American Court, and other countries with an entrenched Bill of Rights as to what the general parameters of those rights are. I don’t think that any judge in our Supreme Court thinks, well I’ll just re-write it the way I’d like to see it.