The Supreme Court continues to bar many lawyers from appearing in person after shifting to remote advocacy in response to the pandemic in 2020.Adrian Wyld/The Canadian Press
Frank Addario is a partner at Addario Law Group. Lisa Kerr is an associate professor in the Faculty of Law at Queen’s University.
This summer, the Supreme Court of Canada has opened its doors for seven days a week, inviting visitors from across the country to learn about its work and experience its historic architecture. But when hearings resume in the fall, many may be surprised to learn that those doors will close to lawyers involved in the very cases the court is deciding.
In 2020, the Supreme Court shifted to remote advocacy in response to the pandemic. Five years later, it continues to bar many lawyers from appearing in person. Only counsel for the main parties may enter the courtroom. Lawyers for “interveners” are still stuck on Zoom.
Interveners play a crucial role in shaping decisions that have sweeping national consequences. They are not directly involved in the legal dispute, but are individuals, organizations, or governments. Examples include the Canadian Civil Liberties Association, the Christian Legal Fellowship, the Assembly of First Nations, or the Canadian Medical Association. They are often the only voices advocating for marginalized communities or offering specialized expertise.
While some cases do not attract interveners, in others it would be nearly unthinkable for the court to rule without hearing from them. In the 2004 reference on same-sex marriage, for instance, the only groups representing gay people appeared as interveners.
Interveners must obtain permission to file written arguments and may be granted a brief opportunity for oral submissions. The Court only lets them participate if they have something to contribute. So why exclude a useful voice from the courtroom? Why confine them to a screen – unable to observe the non-verbal cues of nine justices, or to strategize and co-ordinate live with other lawyers on the case? Why close Canada’s top court to our best lawyers, who regularly work for interveners without fees, often to protect the interests of vulnerable people who will be impacted by the court’s rulings?
Less obvious to non-lawyers is the value of in-court training for inexperienced lawyers. Ian Binnie, a former Supreme Court judge and, himself a legendary advocate, referred to the Supreme Court as the “mother of all juries.” Today’s generation of Supreme Court lawyers was mentored by senior counsel, schooled in the art of live advocacy. The court is denying hands-on training in the advocacy crucible of the courtroom.
The policy is at odds with Chief Justice Richard Wagner’s commitment to greater public accessibility for the court. Under his leadership, the court has held special regional sittings in Winnipeg (2019), Quebec City (2022) and Victoria (2025). Justice Wagner also holds an annual press conference to explain the court’s work and help counter misinformation. Access to the court should not be treated the same as cutting up a pie, with the pieces doled out to worthy recipients. Automatic access is an institutional value and inviting lawyers to argue cases at the court is at its heart.
The Chief Justice has said that Zoom reduces travel costs for interveners. While true, it’s not a reason to make virtual advocacy mandatory. If an intervener is willing to fund its counsel’s travel on a case central to its mission, the court should welcome them.
Leading appellate lawyers and legal advocacy organizations have urged the court to adopt a hybrid model, but the court has not budged. No other court in the country has a rigid policy denying physical access to counsel.
The impact is visible. Since 2009, the court has recorded and posted its hearings online as a public resource. But compare videos from before and after 2020, and the difference is stark. In the 2015 Carter case, on the constitutionality of Canada’s prohibition on medical assistance in dying, the court heard from a range of disability-rights and religious organizations. Many advanced passionate and powerful opposition to changing the law. While their views did not carry the day, it was important that they were present and heard. Counsel tables were brimming with diverse opinions from across the country.
In contrast, in the 2024 Vuntut Gwitchin case, on whether the Charter can invalidate the law of a self-governing Indigenous community, the lawyer’s tables were largely empty. Eight Indigenous organizations intervened, representing diverse perspectives on a topic central to the sovereignty of First Nations. None were allowed in the courtroom. Today, public health concerns can no longer justify this approach.
Removing barriers to participation is an admirable goal. But it doesn’t justify a blanket rule that bars lawyers from physically attending Canada’s highest court. The pandemic taught us the benefits of remote connection. It also reminded us of the irreplaceable value of gathering in person when it matters most.
Editor’s note: A previous version of this article incorrectly said the Carter case, on the constitutionality of Canada’s prohibition on medical assistance in dying, was heard in 2018. The case was heard in 2015.