Queen’s Law inaugurated the new decade with a visit by Supreme Court of Canada Justice William Ian Corneil Binnie on January 7, 2010. Justice Binnie spoke to a capacity crowd of students and professors about constitutional law, in particular “unwritten constitutional principles,” and answered questions from attendees.

Professor Cherie Metcalf, who previously clerked for Justice Binnie at the Supreme Court, introduced her former mentor. She noted some of his many accomplishments, including his involvement in the Gulf of Maine dispute between Canada and the United States, lecturing at Osgoode Hall, working for the Government of Canada as Associate Deputy Minister of Justice and, while on the bench, writing some of the Supreme Court’s leading decisions on a wide range of topics. Metcalf said that working for Justice Binnie was “an intense experience…but we all loved it…Justice Binnie has a true passion for the law which is really infectious.” 

Photo by Alexandra Manthorpe

Associate Dean Stan Corbett, Professor Cherie Metcalf and Justice Ian Binnie and at the reception in the student lounge.

“[If] those who are saying, ‘stick to the constitutional text,’ and ‘we don’t like judicial activism and unwritten constitutional principles,’ would read the Constitution, they would see that it doesn’t function as they think it does,” Justice Binnie said. “As to the focus on the drafters, we all know about the ‘Persons Case’ [Edwards v. Canada (Attorney General)] and…we have a ‘living tree,’ which is a metaphor for a departure from the intent of the drafters.”
 
Justice Binnie continued by stating that unwritten principles are not really as “scary” as many people believe and that they fill in many of the gaps left where there is no specific constitutional text. He also discussed federalism and again drew attention to the Reference re: Secession of Quebec.
 
“What is Canada?” said Justice Binnie. “Well, it’s the product a multitude of transactions and the exercise of political judgement over very long period of time, so that instead of the original unit, you now have an inter-connected, inter-dependent, functioning state. That is the reality of the Constitution, and while we respect Quebec’s right to express its democratic view, at the same time there is a rule of law which says you cannot simply overnight say, ‘That’s it, I’m out of here,’ and let people figure out how to deal with the legal mess that remains.”

Justice Binnie ended his speech by noting that the cases involving unwritten constitutional principles will continue to come before the courts. He encouraged Queen’s Law students to become advocates, add to the discussion, and be part of the solution to these issues.

“Many of my colleagues who went [on to practice] after graduation are now 45 to 55 years later getting up from their desks wealthy, but having a sense somehow things went by,” Justice Binnie said. “They weren’t part of the ‘Great Debates’ that they envisaged when they were at law school…I hope that when your career is behind you, you will not say, ‘I wish I had directed myself otherwise and were involved in the resolution of the great issues of the day.’”

Justice Binnie then answered questions from attendees, with topics ranging from aboriginal law to the importance and persuasiveness of oral advocacy. After the talk, he spoke with law students privately at a gathering in the Student Law Lounge.

Adrian Di Lullo, Law ‘10, got to ask Justice Binnie a question about New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly),a leading decision on parliamentary privilege.

“It is clear that Justice Binnie is a thoughtful person who wants to impart his tremendous knowledge of the law,” Adrian said. “I appreciated the fact that he was not dismissive of the question that I asked but rather took the time to state where he agreed and where he disagreed with what I said.”

“As law students, we get to read the judgments of the Court and the academic criticisms, but it is rare to get the opportunity to hear a judge respond to those criticisms,” said Margaux Peck, Law ‘10. “I think that the lecture provided some much needed perspective and clarity in the developing area of unwritten constitutional principles which could not be gained by reading the judgments and the academic criticisms alone.”