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Mykyta Zhukov: Good day everyone! It’s my pleasure to introduce Ian Binnie, as our guest for today. Ian Binnie is one of Canada’s most respected legal figures. He served as a Justice on the Supreme Court of Canada for over 14 years, playing a pivotal role in shaping the country’s legal landscape. Ian Binnie built a distinguished career in international and constitutional law, as well as intellectual property and corporate law. He also held key roles in the Canadian government as Deputy Minister of Justice and represented Canada internationally. Currently, Ian is Of Counsel at Lenczner Slaght. I'm delighted to welcome you, Mr. Binnie.
Ian Binnie: Well, thank you very much. It's a pleasure to be here.
Mykyta Zhukov: What does your daily routine look like today?
Ian Binnie: Well, today I'm more or less moving into retirement. I have a couple of awards that I have to sign off on in terms of arbitration. These are basically investor State arbitrations under the World Bank. Once they're out of the way for the most part what I have left are fairly minor. When I say minor, I mean one- or two-day mandates. So, I'm slowly cooling my Jets.
Mykyta Zhukov: You are truly regarded as a legend in the field of law. You have a wealth of experience in both the public and private sectors, and of course, as a Justice of the Supreme Court of Canada. You are undoubtedly a talented and naturally gifted person who, I believe, could have achieved success in any other field, be it medicine, art, literature, or anything else. Yet, you chose law. Going back to the beginning, what motivated you to become a lawyer, and most importantly, what kept you in the legal profession instead of pursuing another path?
Ian Binnie: I think the legal profession, when I entered it in 1965, was my call to the bar. It was a lot less competitive than it is now. It was regarded as an entertaining practice to be part of. You also had a sense of public service, that the law performs a good function in society. The actual mechanics of the law were interesting. The fact of being on your feet in courtrooms and making arguments that you thought the adjudicator would appreciate. So, all of those things came together to say, well, not only law but litigation would be where I went to feel most at home. And then, of course, you look at other occupations that you could choose. I thought of journalism, I thought of psychiatry at one point, but each of those other professions had drawbacks that I didn't think law had. And then once you get into law and you appreciate that it has more significance than when you got into it, and there's an opportunity to do justice, both as between people but also in the public law. You mentioned I was the Associate Deputy Minister of Justice. So, both the public and the private law carries you on and you feel you're doing something worthwhile and you're getting paid for it.
Mykyta Zhukov: You served as a Justice of the Supreme Court of Canada for 14 years. This is undoubtedly a very demanding position. In addition, you were invited to serve as legal counsel and adviser to the Government of Tanzania and the Government of Newfoundland. Surely, there must have been situations in your career where your decisions carried great weight. How did you cope with the emotional pressure, and what helped you to make decisions?
Ian Binnie: Yeah, well, I didn't have a lot of difficulty making a decision. My understanding is that after 20 or 30 years in the law, part of it has been so drummed into you that what you think is your intuition is in fact guided by all the precedents that you've looked at, and the work, the academic work, that you've done. I think once you decide in a particular case how to reconcile the differences among the parties, the differences in fact, the different legal authorities that are being presented, you then proceed to explain your decision. Sometimes making an explanation of the decision is more difficult than the decision itself. You appreciate at the end of the day the outcome you want to reach. It's in a matter of explaining by virtue of precedence and so on. So that's really the harder part, explaining the decision in a way that would be understandable to the parties, and particularly the losing side understands why they've lost. So that part of it never bothers me. The more important the case didn't seem to bother me. One of the first cases I dealt with in the Supreme Court of Canada had to do with Quebec's secession attempt from Canada. Probably as great a case as the Supreme Court of Canada has had to deal with. And yet, you come right down to it, there's legal principles that you feel have been established. You rest on those and you push ahead in a way that the law cautions you to. And in the end, whether it's a minor case or a major case, you come out with a decision.
Mykyta Zhukov: Should court decisions and legal documents be written in plain language? And do you find it useful to study philosophy and rhetoric to achieve both simplicity in writing and persuasiveness?
Ian Binnie: Yes, I think that the students I've met over the years, much the best, have come from a background of philosophy, political science, history, whatever, before they go into law. In Quebec, under the CEGEP system, you can go into law at a fairly early stage, without really having in mind trained in other aspects of the culture. So, I think it's important to have a broad grasp of the culture, in this case Canadian culture, and a broad grasp of insights of world literature. I think you bring that to bear in the law. The law presents a very focused issue. Is such and such right or is it wrong? But in reaching a conclusion on that, you have to have a broad-based intelligence and a broad-based jurisprudential background to make the most of it. I think lawyers should come to law with a very narrow perspective, treat it narrowly, and thus both to themselves have a lot of disservice. I think the whole function of law is to take in its larger social context in which you play a role, but only a role, and it was other parts of the complex that give nourishment.
Mykyta Zhukov: Canada combine two legal systems, Civil law in Quebec and Common law. These two legal systems have different historical backgrounds. However, if you had the opportunity to take the best elements from both civil law and common law, what would you choose, and what would you leave out?
Ian Binnie: Well, the two legal systems of course you deal with every day in the Supreme Court of Canada. I think roughly 30% of the cases come from Quebec and of the most significant part come from the civil code. So, I'm not an expert in the civil code at all. And I appreciate that there are differences and civil lawyers will tend to keep those differences in mind. They don't really like common law lawyers messing about in civil law. There are concepts in the common law such as trust, which do not translate well into civil law. They have a notion called fiducia, which to the uninitiated might appear to be fiduciary duty, but it's not. It's got its own complexity. Equally the common law has now looked to the civil law to take out the notion of contract in the performance of sort of good faith in the performance of contracts.
So, each system has certain advantages. In the Supreme Court generally those advantages are spelled out. But you have to realize that you're dealing with two different systems and not mix the two up. When you're borrowing from the other system you have to explain it in terms of your own code. So, for example, when the common law incorporated good faith into the interpretation of contract, it was done by virtue to common law principles. Perhaps burnishing some that have fallen into disuse. It will make the case in common law terms. I don't think at any stage Canadian lawyers see the two systems as coming together or being melted in the way you suggest.
Mykyta Zhukov: Based on your biography and track record, one might get the impression that everything in your life came easily. Studying at prestigious universities, holding positions at leading law firms, receiving awards and professional recognition. You also received many unique appointments. You were described by a Canadian magazine as one of the strongest hands on the court. You were the first Canadian to be elected President of the Cambridge Union Society. However, as is often the case in life, behind the scenes lie all the hardships, difficulties, anxieties, and challenges, while on stage, we see only a perfectly crafted image. What challenges in life do you believe have had the most impact on you, reinforced you, and made you who you are today? And what helped you get through these challenges?
Ian Binnie: Well, first of all, I should salute the Ukrainians who have come to Canada to a foreign culture, foreign language, foreign legal system, although I imagine the Ukraine has much in common with the Quebec Code as opposed to the common law. So, all of that is worthy of great attention and respect and admiration. And certainly, I think all Canadians feel a terrible loss at what Ukraine is going through at the moment under the hands of the Russian imperialist state. In my own case, I have not had that kind of difficulty. As I mentioned at the outset when I became called to the bar, it was not considered to be a tremendously difficult occupation to get into. If you wanted to go to law school, basically you went so long as your grades were reasonably proficient. So, I came up through the Canadian education system, went to without a huge amount of difficulty. Of course, every student has problems, every student has difficulties you have to surmount, but compared to the Ukrainians that you're dealing with, my pathway was rather simple and straightforward.
So, when I went into litigation and became interested in both public law and private law, my view was always that as a lawyer you should keep your network wide open.
I think too many young lawyers have in mind a picture of how they would like to be, whether they'd like to be in a large national law firm or you'd want to be in a boutique practicing a certain specialty. And I think if you allow that those ideas to capture you, you do yourself a disservice. I think everybody who goes into law, you march along and you discover that perhaps the job you're in isn't the real reason why you went into law. Either you're slotted away in some specialty that you're not particularly interested in or on the other hand you might be all over the place working for a lot of different people in a large law firm and not get very much out of it.
So, I think it's always a challenge for a lawyer going through the legal practice is to say well, is what I'm doing now really, why I went to law school, why I am pursuing law as an occupation. And if you wake up at 65 or 70 years old and say, well, actually I didn't do any of the things I counted on doing because I was a conveyancer, I was this or that. My view is you're owning yourself to blame. Now, clearly, somebody entering the country, entering the profession, as you do from the Ukraine, the choice is rather limited. It's much easier as a Canadian to say, well, you quit your job and you take up another. It presupposes there are other jobs there that you can move into. But to the extent that all of the Ukrainians have these choices, I say, well, the future for them in law is up to them.
A law firm looks at you as someone to do their job and if you're doing their job, they're quite happy whether you're satisfied or not. I think as a young lawyer, as a Ukrainian, you say, well, that's their job to make sure I'm fitting their scheme, what about my job, what about what I'm doing, to what extent is it suitable for me. After a dozen years or so studying both public law and private law, I became quite interested in constitutional law, public law, felt that that was a part of the practice that I should deal with more specifically. So, I went on an interchange with the Department of Justice in Ottawa and then that led to an interchange program and I became the Associate Deputy Minister. Well, if I'd been going along quite happily doing what I had done, I would never have taken up an opportunity to go to Ottawa to study a different area of the law. And probably if I hadn't been to Ottawa and done a lot of constitutional cases, a lot of work in the Supreme Court, which came up in public law cases afterwards. I probably would never have had the background to go to the Supreme Court of Canada. So, your career hops about in different directions at different times. All I'm advising is that you keep track of where your career is, where your job is, where your interests are, and make sure that they all come together as you want them to.
Mykyta Zhukov: Do you feel a responsibility to pass on your knowledge and way of thinking to younger lawyers (especially those seeking mentorship in the legal field)?
Ian Binnie: Yes. I think, again, going back to when I was called to the bar, everybody had an articling position. It was regarded as part of your professional duty to have students. In more recent times, lawyers have said, “well, maybe it's not paying me, so I want to have articling students”. And that's it. There's the kind of crisis. I think articling program has been very difficult for young lawyers. I think it's extremely important that the knowledge be carried on because law is essentially a normal profession. There's a lot of writing. But the way you deal with matters in court, the way you exercised judgment dealing with witnesses, all of that is something that you have to mentor people to come into that knowledge without too much difficulty. And as I say, I think it's the job of the legal profession to pass that on.
Mykyta Zhukov: One of the outstanding writers, Stephen King, in his autobiographical book On Writing, mentions that to succeed in literature, among other things, one needs to read a lot and write a lot. What do you believe is fundamental to achieving genuine success in the legal profession, particularly as a litigation lawyer?
Ian Binnie: I think writing is critical. I'm not one of those who thinks that written argument ousts oral argument. I'm a great believer in oral argument. But clearly the first thing the judges know about you is what you've written. And if you make a persuasive written case, you're considerably ahead. I think in terms of writing, the answer is not really written work, it's rewriting. When I did a factum in practice, I might write the factum 15 different times, making little changes, making sharpening the focus, substituting language that works properly.
So, that has been an experience that I think draws heavily on your education, draws heavily on your knowledge of literature, draws heavily on aspects of your culture as a human being. And that greatly contributes to the success in law. As a judge, I see so many factors that are poorly written, arguments that aren't thought through, cases that are thrown in without much forethought as to what they prove or what they don't prove. So writing, the ability to, I always think writing is what you speak orally but put in written form. I don't believe that you have a kind of rigid written form which departs very much from how you would express yourself orally. But within that framework, it's absolutely critical that the writing be clear and succinct and pointed, and that paves the way. It doesn't achieve success, but it paves the way towards success. I believe in Ukraine; the courts are much more oriented to written argument and you have specialized judges and so on and so forth. In our court system, the oral argument is of great importance. And I think those of your colleagues who are interested in litigation should spend as much time as they can in court in order to get up to speed on how things are done orally as well as in writing.
Mykyta Zhukov: I often attend musical performances. Besides the beautiful music and atmosphere, I observe how a single person on stage, or a group of people, captivates the attention of tens of thousands of people for several hours. It takes an incredible talent, undoubtedly fueled by hard work, to hold the audience's attention for hours, leaving them completely immersed in the music. But public speaking as a lawyer requires a similar level of talent, especially in maintaining the attention of judges. In your opinion, what are the essential components of oral advocacy, and how can a lawyer develop them?
Ian Binnie: Well, the essential instruction is focus. You're not serenading the judges to keep them happy or to create some kind of welcoming environment. You're there to persuade them of an issue. There could be several issues in the case but basically there's usually only one or two that will dispose of the case one way or the other. And therefore, everything you do in court, either written or oral, has to be directed to what appeals the court to your side of the case. If you have an idea that repels the judges, well then don't go there. Stick to the line of argument that says, "well, here's the question and here's the answer." Now that itself is a problem because what is the question? Very often Canadian lawyers stand up and they make an argument as to whether everybody assumes, what the question is. Very often that is not agreed that the question is in that way. I can think of many cases where the sides have been totally at odds as to what the question is.
For example, the child pornography case in the Supreme Court. The trial judge thought that the law was so broad that it impinged artistic ingenuity. Therefore, he said that the law was unfaithful and null and void. In the Court of Appeal, they thought the real issue was harms to children. If you decide the question is harms to children, you're obviously going to take a much sterner view than if you think the real danger posed by the case is harms to artistic integrity.
So, you have to, in proposing your argument to the judges, decide initially what are the questions that will most attract the judges. Having decided those are the questions, you have to first of all organize your argument to show that, in fact, they can safely take your questions as being the questions in preference to the other side of the argument, which is the other side of the case where the lawyer is contending for a different question for different reasons. Once you have the court decided that your questions are correct, I think it's a fairly easy route at that point to fill in the blanks until you get a judgment in your favor because if it wasn't, you wouldn't have asked those questions, obviously the questions are results oriented.
So, I would say in terms of written argument, first of all, don't take forever. In the Supreme Court, the parties were given 40 minutes each. The better lawyers would do with 30, 31 minutes. In a trial court, you can go on forever unless you're stopped by the judge. But very often the judge loses interest after hearing hour after hour of the matters you're going through, which the judge is already familiar with because he's heard the evidence.
So, I think you have to be fairly brief, you have to be highly focused, you have to be somewhat entertaining. You don't want to pretend that you're reading out of a telephone book what you're presenting is a facsimile of the facts that attracted the legal issue and push that to a conclusion.
So, I would think in a written argument I would make it brief, I would make it highly focused. I would ask myself if I were the judge and I got this fact in, could I more or less turn it into a judgment with very little difficulty? And if that was the case, then I would say that's fine, we'll go with it.
Mykyta Zhukov: You have had the opportunity to litigate before international arbitration tribunals and the International Court of Justice. Can you compare your experience in these institutions to domestic litigation?
Ian Binnie: Yes, the international courts are much more written argument conscious. Almost everything that goes in is in writing. The oral argument is basically staged. The cases I was in, I think we had about eight lawyers presenting the case for Canada. I was given a warning to talk about the economic impact of, in this case it was dealing with boundary lines in the ocean as a result of the law of the sea.
You have to be utterly predictable. In that case, it's not a question of focus, it’s really a question of covering the material because the written documents are so extensive that you don't know what point the judges have gone into it and what they need to learn.
So, that whereas if you go to the Supreme Court of Canada, you know the judges have read what they need to read. If you're appearing before the international court, you've no idea what the judges have read and therefore the rule is that you in your particular area have to be as comprehensive on the points that you're dealing with as possible.
There's a famous case in the court where one of the lawyers was reading from a certain provision in a contract that had great importance in the case and the judge said, “well, no, no, we move on, move on, we understand that the contract has this sort of role in the interstate dispute, so we'll look at it at our leisure”. And the lawyer said, “well, will all of the judges look at it at their leisure?”, but they all say, “Yes, yes”, “so, well, if that's the case, let's all read it together.”
So, he got the judges to read the document because the document was critical to his case and he did not want the judges to leave the courtroom without being aware of everything they needed to know.
So, that's a broad difference between domestic courts and international courts.
Mykyta Zhukov: You began your legal career in 1967, 57 years ago. How has the legal services market changed since then? What positive and negative changes do you see, and in which direction do you think the legal services market will develop in the future?
Ian Binnie: Well, the legal market has changed substantially. When I was in my early years at the bar in the late 60s, pretty well anybody could bring an action in court. The delays were not too long. If you had a procedural motion, you could get that heard in two days instead of having it stood down for months. The market for legal services was very broad. wasn't limited to rich people and large corporations. So, as a young lawyer you had a lot of practice with cases that amounted considerably to the people involved but were not great jurisprudential issues.
Well, over the years since, lawyers insist on making a lot more money than they used to. When I started at the bar, I would think lawyers were very much in the kind of middle of the middle class. It was not an occupation you went into if you want to earn a lot of money. That has since changed. I think lawyers today regard themselves as being equally worthy of wealth as their clients, and they charge accordingly. So, that far from being within the ordinary householder's reach, it becomes the reach of the wealthy. I'm talking about places like Toronto, Montreal, Calgary. I'm sure in the smaller towns, there are lawyers who regard themselves as sort of solicitors to the people in those towns who practice in the old way. But if you're looking at the big city practices, you're looking at a fairly restricted category of case that demands high fees and that requires special expertise. and that means that the lawyers have changed from all-around generalists to more and more to specialists. At the top of the profession, in the litigation, there are all-around lawyers, but that's because their real skill is in presenting a case. So, they can take almost any case and use that talent to bring it forth. But in terms of the ordinary lawyers, you're dealing with a much narrower market, you're dealing with a much richer market, you're dealing with a lot of issues that the ordinary community lawyer is not able to deal with. And to me it's a pity. I mean I think lawyers ought to be part of the community. I think they ought to be there to help people not simply to satisfy the very rich but that's the way the profession has gone. So, what is happening now is you have paralegals, you have, various non-lawyer, lawyer types coming in to fill the vacancy. You have non-lawyers practicing going to land titles to check out the root of property, you've got paralegals working on domestic disputes. So, all of these things, all sorts of other people are coming in to fill the work that used to be done by the lawyer. And the legal community is shrinking and I think it will (I mean not necessarily to the whole in absolute terms but in relation to the whole population it's a lesser percentage now than it used to be), and I think that will continue.
So, to your colleagues from the Ukraine interested in furthering a career as a lawyer, you've really got to look down the road as to where the practice is going to be rather than where it is now or where it has been in the past, and go for those areas where the long-term future is guaranteed.
Mykyta Zhukov: I remember well the words of one of my professors during my first year of law school in Ukraine. "If you understand the foundations of law, if you grasp legal theory as a foundation, then all the branches of law you study afterward will build up like bricks into one large structure. But no matter how perfect these bricks are, if you don't have a strong foundation in understanding the basics and theory of law, your structure won't last long." In your opinion, how important is it for a lawyer to engage in academic work in addition to practice, or at least to read academic literature in the field of law?
Ian Binnie: Well, I think in the best of all possible worlds, it is desirable. Most lawyers have a great deal of work to do and they don't have much time to read academic books. What they will do is read the Ontario reports or the Quebec Superior Court reports to find out what's going on in the law. As a recreation they will read books, literature, histories what have you.
But I think the notion of the philosopher lawyer clashes with the day-to-day work of the practicing lawyer. If you look at it in terms of the legal profession, I agree with the professor that the understanding of the profession, of the foundation of the law is critical.
In North America, particularly in the States, they've adopted what's called the Socratic method, where the judge or the professor simply poses questions to the students and the students scramble to come up with answers. So, they don't get the broad sweep of legal policy, legal history that you would, for example, in London. When I studied at Cambridge University, their interest in cases was very secondary. What they were really interested in is the professor's drawing conclusions out of those cases and philosophizing as to how it fits into a larger legal framework. So, I benefited from both. I benefited from the legal foundation trained in Cambridge. But also, I benefited from the Socratic method at the University of Toronto. I think both are essential, but it's more difficult for a Canadian lawyer and a Canadian law school to build up that foundation than it would be for a European.
Mykyta Zhukov: Thank you, Mr. Binnie, thank you for your answers and thank you for this wonderful conversation. This was the last question on our list. Thank you very much.
Ian Binnie: Not at all. It's a pleasure and as I say I greatly admire you and your colleagues coming to Canada to contribute to the legal profession. I'm sure that you will do very well with the kind of energy we've come to expect from Ukrainians. As you realize there's a huge Ukrainian community in Canada so we're fairly familiar with Ukrainians here whether from the Ukrainian and from here. So anyway, the best of luck to you and good luck to your colleagues!