Rethinking traditional
evidentiary rules

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After 14 sometimes tumultuous years in a court that has weathered legal controversies over aboriginal fishing rights, same-sex marriage and Quebec secession, Justice Ian Binnie says he leaves the Supreme Court of Canada (SCC) confident that the 136-year institution will withstand the inevitable storms that lie ahead.

“So long as the people feel that the court is doing its work honestly, and [acting] in what it believes, to the best of its ability, is justice in the cases presented, I think the court survives the controversies that inevitably erupt in issues that are socially divisive,” he told The Lawyers Weekly.

“I think the people are solidly behind it, and I don’t see that changing,” the 72-year-old judge said in a wide-ranging interview on many topics, including his views on SCC advocacy and his personal reflections on judging (see excerpts on p. 26 and on our website).

As one of the jurists most widely respected by the Bar and Bench across Canada, the court’s senior justice (next to the chief justice) has made an exceptional contribution to the law, court watchers say.

A prodigious worker and pro-
lific writer, even by the SCC’s
gruelling standards, the former
top barrister has participated in
964 of the 1,074 cases the court
has heard since he was sworn in
Jan. 8, 1998, according to unpub-
lished statistics obtained from
the court by The Lawyers Weekly.
At press time, Justice Binnie
had written 169 opinions, includ-
ing pioneering decisions on
aboriginal law, evidence and
criminal law. Of his written opin-
ions, 69 per cent (117) were either
unanimous or majority judg-
ments. He authored many lead-

Justice Ian Binnie closes the door on his 14-year term at the Supreme Court of Canada.
BRIGITTE BOUVIER FOR THE LAWYERS WEEKLY
See Binnie Page 26
CRISTIN SCHMITZ OTTAWA
Court watchers praise
his elegant writing
and analytical abilities THE LAWYERS WEEKLY
Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002
THE LAWYERS WEEKLY
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
PAGE 9
PAGE 14
Coming to a
career in law
later in life

PAGE 21
Lawyers win fight against anti-money laundering rules
CRISTIN SCHMITZ

Law offices are not to be “turned into archives for the use of the prosecution,” the British Columbia Supreme Court has admonished in constitutionally exempting lawyers from another round of federal anti-money laundering rules.

In a national test case initiated
by the Federation of Law Soci-
eties, B.C. Supreme Court Justice
Laura Gerow held that the rec-
ord-keeping and record-reten-
tion rules in the Proceeds of Crime
(Money Laundering) and Terror-
ist Financing Act and its regula-
tions are an unjustified breach of
clients’ and lawyers’ Charter s. 7
liberty interests and, as such, are
constitutionally inapplicable to
lawyers and law firms.

The judge went on to read down certain generally applicable provisions of the regime, while severing and striking down other sections that exclusively target lawyers.

“It is apparent that the under-
lying purpose of the record-keeping
and record-retention provisions of
the regime, as it applies to lawyers
and legal firms, is to advance the
criminal law interest of deterring,
detecting, investigating and pros-
ecuting crimes committed by law-
yers’ clients by having lawyers cre-
ate a paper trail that can be used to
prosecute their clients. That under-
lying purpose clearly puts clients’
liberty interests at stake,” Justice
Gerow wrote in her Sept. 27 judg-
ment. “In my opinion, imposing the
recording and related obligations
contained in Part 1 of the Act on
legal counsel and legal firms would
result in having lawyers’ offices
turned into archives for the use of
the prosecution, and would violate
the principles of fundamental jus-
tice insofar as it erodes the solici-
tor-client privilege.”
Justice Gerow found there was
“no evidence” to support the fed-
eral government’s contention that
lawyers are avidly sought after by
criminal organizations to help
them launder money.

Federation president Ronald MacDonald told The Lawyers Weekly the court was satisfied that law societies across Canada are effectively overseeing their members by enforcing recent “no-cash” and “know-your-client” rules. The judge said the Financial Transactions Reports Analysis Centre of Canada (FINTRAC) had conceded as much since it acknowledged that if lawyers were subject