Since 2022, the Supreme Court's Ottawa courtroom has been reserved for lawyers representing the primary parties in a case. Intervenors must make their case to the judges via video call.Brendan Burden/The Globe and Mail
Lawyers for attorneys-general across the country want to appear in person before the justices of the Supreme Court of Canada when they make their arguments at a coming landmark hearing on Quebec’s secularism law and the Charter’s notwithstanding clause.
One problem, however: That’s not allowed.
As interveners in the case, the attorneys-general and their lawyers are restricted to Zoom. They’ve asked the top court for an exemption from the policy, which was put in place as part of pandemic measures that never entirely went away and has prompted sustained umbrage from the legal profession ever since.
Canada’s apex legal arena in Ottawa – a regal courtroom with vaulted ceilings, plush red carpet and walls of warm black walnut – is these days reserved only for lawyers representing the primary parties in a Supreme Court case. They usually have an hour each to persuade the justices behind the elevated bench.
Interveners represent outside groups that don’t have a direct legal role in a case but have a vested interest in the outcome. Unlike the main lawyers, who appear in person, interveners get five minutes by laptop to make arguments on the broad issues at stake.
Lawyers hate it but the Supreme Court is insistent the new system works well and has steadfastly rejected calls to yield.
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Matthew Gourlay, an experienced Supreme Court lawyer who is not involved in this case, worries that five minutes on Zoom results in a “canned speech that adds little to the debate.”
“I don’t understand their adherence to this rule,” he said. “In person, you are able to have a meaningful dialogue with the judges.”
A hearing on Quebec’s secularism law, Bill 21, could be scheduled for this coming winter. The 2019 legislation upended the lives of numerous Quebeckers and, in one example, banned teachers from wearing a hijab on the job. The provincial government used Section 33 of the Charter of Rights and Freedoms, the notwithstanding clause, to shield the law from legal challenges.
Opponents want the court to strike down Bill 21 as unconstitutional. Quebec believes its political autonomy is under threat. The case is especially significant because Section 33 hasn’t been considered in depth at the Supreme Court since 1988.
Attorneys-general representing five provinces – British Columbia, Alberta, Saskatchewan, Manitoba and Ontario – argue in a court filing that appearing in person at the Bill 21 hearing is “necessary to enable the court to appropriately adjudicate” issues in a case that revolves around the provinces’ “constitutional powers and legislative sovereignty.”
The federal government, in a subsequent court filing, asked to appear in person if the court says “yes” to the provinces, noting governments have “a unique and important role” in the case.
The Supreme Court in late August said it will decide on the requests to appear in person at “a later date,” as it granted a separate request from the attorneys-general to file longer written arguments than usual.
But, in general, the court has repeatedly said “no” to the legal profession on walking back its interveners-on-Zoom policy instituted in 2022.
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Last year, after lobbying from lawyers, Chief Justice Richard Wagner told the annual meeting of the Canadian Bar Association that the Zoom rule provides substantial travel savings to interveners and reduced costs improve access to justice.
In a new statement in response to Globe and Mail questions, the court reiterated previous points and said that for the justices behind the bench, “there is no difference in how submissions are received between in-person and virtual appearances.”
But many lawyers are exasperated and want at least the option to appear in person. Letters to the court were dispatched in August from the Canadian Labour Congress, a long-time intervener in cases, and the Criminal Lawyers’ Association. Another common intervener, the Women’s Legal Education and Action Fund, made its case in June to Chief Justice Wagner on behalf of about 20 groups.
They say Zoom dilutes the impact of their arguments and they believe the medium provides less legal value to the justices, who may ask fewer probing questions. They speak of a “literal place inside the courtroom” for interveners, many of which represent marginalized groups, and say that “their voices belong at our nation’s highest court.”
And there’s the question of professional development. Lawyer Erin Dann, a veteran of Supreme Court cases, recalls her early career when she was in the courtroom several times in secondary roles, mostly for interveners, before she took the helm.
“That experience, watching senior counsel on their feet and working their magic in the courtroom, was invaluable,” she said.
Robert Janes, another veteran Supreme Court lawyer and expert in Indigenous law, spoke of how “some of the seriousness and solemnity” at the top court is lost on Zoom. He noted Chief Justice Wagner likely is balancing varied views within the court.
That internal debate was made clear in a 2023 Supreme Court ruling called McGregor on Charter rights, in which the justices opined on what they want from interveners. A majority of five, including the Chief Justice, spoke of a limited legal ambit. Justice Malcolm Rowe emphasized interveners should not “stray beyond their proper role.” Only justices Andromache Karakatsanis and Sheilah Martin welcomed broader arguments.
Chief Justice Wagner in June said the Bill 21 hearing could take three days – a rare length for a case at the top court. In July, he granted standing to a record 38 interveners, on top of the attorneys-general and others who are automatically included. Among the main parties, there are six appellants up against the Quebec government.
It all adds up to an unusual hearing that probably will stretch out for more than seven hours of legal arguments over the three hearing days.
And unless the Supreme Court has a sudden change of heart, the presiding justices are set to spend more than half the hearing in their seats on the bench each watching their own small screen, as a platoon of lawyers try their best to garner attention and to plead their clients’ cases on Zoom.