The Supreme Court in Ottawa on March 26.Sean Kilpatrick/The Canadian Press
It was a moment for the ages when Joe Arvay, one of Canada’s greatest Charter litigators, rolled up to the Supreme Court lectern in his wheelchair in 2015 to argue for the right to medical assistance in dying.
Groups representing disabled people were arguing that establishing that right would devalue the lives of the vulnerable. Mr. Arvay responded: “I would be the very last person to ever suggest that one is ‘better off dead’ than being disabled.”
The air changed in the courtroom. If you were there, you felt it. But today, the Supreme Court doesn’t want you to be there. Not if you’re an intervener in a case. Interveners can’t enter the courtroom. They have to appear by video-conference and engage with the court on a monitor.
So, for example, when the Supreme Court last month heard arguments on Quebec’s Bill 21, on religious symbols in public life, and especially involving the Constitution’s notwithstanding or override clause, the interveners included attorneys-general from the federal government and five provinces, and groups representing women, Muslims, civil libertarians and more. Their role was to assist the court in understanding the legal and social context of the case. And they were all on video conference because the court wouldn’t let them be there. Even the intervener attorneys-general.
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The no-interveners-in-the-court rule belies a central feature of the post-1982 era of the Charter of Rights and Freedoms – context is essential. Charter law is not supposed to be about abstract principles. It’s about real-world effects.
For instance, former chief justice Beverley McLachlin once said that in practice, formal equality – treating similar groups in similar ways – allowed for the forced segregation of African Americans. The Canadian court endorsed substantive equality. “We need to look beyond the words to the reality, or context of the individual and group, to understand the other in his or her full humanity,” she said.
And yet in its decision to restrict interveners to video conferencing, the Supreme Court is missing the human context. It’s surprising the judges are so tone-deaf to the reality in which they themselves hear arguments.
When a woman is in childbirth, does her partner support her by calling out from a monitor? Should confession for Roman Catholics be done by video conference only? Medical appointments? Why do media organizations set up foreign and domestic bureaus when they could use video conferencing? And why did the Supreme Court itself, under Chief Justice Richard Wagner, go on the road to hold hearings in Quebec City, Winnipeg and Victoria?
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Because being there matters. One doesn’t need to prove that to a scientific certainty, as the court itself has said in at least one case. We all know what it is to be human and to value the face-to-face over the sterility of screen contact.
Adding insult and injury, the court is preparing to renovate its grand art-deco building at a cost of over a billion dollars in taxpayer funds. They will build it, but you can’t come.
Interveners engage in a conversation with the judges. It is not about making a speech. The judges have read the written legal arguments (one hopes). Interveners generally have just five minutes, which includes answering questions from any judge who cares to ask them. The attorneys general in the Bill 21 case had 15 minutes. They need to be agile and concise – to read the room.
The air will never change because of something someone says over a video link. And those so restricted will never feel the air in the courtroom.
Importantly, dozens of groups, including several attorneys general, sent letters to the court pleading for permission to appear in person. The Advocates Society said the legal profession as a whole suffers when young advocates are denied the learning opportunity. Again, an important point about the human context.
So why did the Supreme Court say no? Because, it says, their policy promotes “access to justice.” The point seems to be no one has to pay travel costs except the parties directly involved. But really, there’s something Orwellian about closing the doors and calling it access to justice.
The policy made sense during the early days of the coronavirus pandemic, when it started. Now it is downright insulting. To whom does the Supreme Court belong, anyway?
The late Mr. Arvay’s eloquence may not have been the primary reason the court unanimously endorsed a right to medically assisted death. But he did prove it matters to be there.