By Kathleen Harris, CBC News
Posted: Apr 12, 2012 10:46 PM ET
Canada’s Indian Act is riddled with “archaic features,” but Parliament would be wise to phase in reforms rather than scrap it and start from scratch, retired Supreme Court justice Ian Binnie says.
In a wide-ranging television interview with the CBC’s Power & Politics host Evan Solomon, Binnie said the contentious law as it exists now fails to foster a “healthy relationship” between the government and aboriginal peoples.
Binnie said he does not believe it’s possible to “blow away” the Indian Act entirely without substituting it with another piece of legislation.
But, he told Power & Politics, “it would be almost impossible to write a statute that is going to gain widespread consensus.” Instead, he suggested, the government would be best to proceed incrementally. “I think the government will have to proceed area by area, with the aboriginal communities and range of interests, and pick off things that can be resolved today, abolish the related aspects in the Indian Act, and move forward in this piecemeal fashion.”
‘I would not want to go before a judge thinking if he or she makes this decision, she’s going to alienate the evangelicals or the conservatives or alienate part of the constituency’—Former Supreme Court justice Ian Binnie
Asked whether the Conservative government’s move to streamline environmental assessments in order to expedite development projects such as oilsands pipelines will likely lead to more legal battles waged in the high court, Binnie said he expects challenges will depend on the level of consultation with aboriginal groups.
Past Supreme Court decisions have ruled that the more serious the impact on the land and daily lives of aboriginal peoples, the greater degree of consultation there must be.
Binnie was called to the Ontario bar in 1967, practised in courtrooms across Canada for three decades and was a top commercial litigator before his appointment to the top court in 1998. He also represented the federal, Ontario, Newfoundland, New Brunswick and Yukon governments on public law and aboriginal rights issues and served as associate deputy federal minister of justice in the 1980s.
He told Solomon the advent 30 years ago of the Charter of Rights and Freedoms “tremendously” transformed what had been a “backwater” legal landscape when it came to dealing with private, commercial, family and criminal disputes.
The Constitution has also courted much controversy by guaranteeing rights. Some Canadians favour rights in the abstract, but don’t like when they actually apply in a particular situation, he noted.
Quebec secession was ‘a minefield’
After authoring 170 opinions, including many landmark judgments, at the Supreme Court, Binnie retired in October. He is returning to private practice, joining the Toronto litigation firm Lenczner Slaght Royce Smith Griffin this week.
Asked about his most difficult decision during his 14 years on the bench, Binnie pointed to the Quebec secession reference of 1998, where the court was confronted with the hypothetical question of Quebec voting in favour of secession in a referendum.
The federal government’s position was that Canada was one and indivisible, so referendum results could be ignored. Quebec cited international law and argued its right to self-determination.
“That was exploring a minefield as to what would be the ground rules. How were people to proceed in the event of a positive vote for secession?” Binnie recalled.
Ultimately, both sides found aspects they liked in a “sensible” ruling that recognized political jurisdiction, yet required a legal framework within which decisions could be taken.
On mandatory minimum penalties, Binnie said they have traditionally held an appropriate place in Canadian law, citing the 25-year mandatory prison sentence for first-degree murder that was imposed by Parliament after the death penalty was abolished in 1976.
As a general rule, the judge closest to the facts of the case has the best knowledge to fit the punishment to the crime within guidelines set by Parliament. The present controversy is more about where to draw the line between leaving more flexibility to the judge for certain offences or extenuating circumstances, or giving more say to Parliament, he said.
“The problem is, Parliament can’t fit the punishment to the crime, because it’s by definition enacting guidelines, or minimums, before the facts are known,” he said. “So it’s a question of line drawing.”
Asked by Solomon for his view on whether judges carry more democratic legitimacy if they are elected like some in the U.S., Binnie called it a “terrible idea.”
“As a lawyer practising before the courts for 30 years, I would not want to go before a judge thinking if he or she makes this decision, she’s going to alienate the evangelicals or the conservatives or alienate part of the constituency, or are the judges trying to raise money for re-election,” he said. “I think it’s an appalling procedure and I don’t sense that is in our future.”