Appearing via Zoom at the Supreme Court of Canada as an Intervener

In a recent interview with Yves Faguy for CBA/ABC National, the Chief Justice of Canada, Richard Wagner, was asked about the risk that courts would ‘backslide’ into old practices and give up some of the technological advances made during the COVID-19 pandemic:

N: You co-chaired the Action Committee on Court Operations in Response to COVID-19, which acknowledged the many advantages of virtual hearings and easing of procedures. We’re now hearing about courts backsliding into old habits, especially in family law matters. Are you worried that we’re taking a step back? 

RW: I’ve heard the same thing, that some courts are going back to their old ways of doing things. I think it’s a mistake. I’ve said that COVID-19 was the crisis we needed to realize just how much our system had to be modernized. It would be unfortunate if we went backwards because people claim it’s easier or because they prefer it. We need to build on new technologies. For example, our new Supreme Court portal launched on January 30, which makes it easier for lawyers and people who are self-representing to file documents securely. That’s access to justice.

I tend to agree with the Chief Justice that it would be a mistake to wind the clock back entirely to 2019, though equally we should not imagine that the choice is between virtual only and in-person only. Note that the Chief Justice answered another question about mental health and judicial burnout by acknowledging that the pandemic “likely exacerbated” this particular issue: if courts are winding back the clock, it may well be because some judges and lawyers prefer in-person hearings, at least some of the time. My sense (entirely anecdotal) is that the bar and bench have mixed views on the balance between virtual and in-person proceedings.

The challenge, then, is to strike the appropriate balance. Interestingly, the Supreme Court has been offering virtual-only appearances for interveners, whilst counsel on appeals may elect to appear in person. For interveners, who generally get only 5 minutes of oral argument (10 for Attorneys General), considerations of cost and efficiency, especially for those who have to travel long distances to get to Ottawa, probably make this a sensible rule.

In my case (arguing for the Commission scolaire francophone du Yukon in the A.B. case), it was a little strange to plead as an intervener from my home last month, a stone’s throw (for a particularly proficient stone thrower) from the Supreme Court building, but nonetheless saved me a significant amount of time. It was also possible to get a ‘feel’ for the hearing despite participating virtually: ‘reading the room’ was not possible but it certainly was possible to get a sense from the questions posed to other parties of the issues the judges felt important. I was therefore able to engage with the questions posed by Justices Jamal and Martin. The hearing ran very smoothly from a technological perspective (though of course this cannot be taken for granted).

The same considerations will not necessarily apply to counsel for a party who spends an hour at the podium: for them, being in person might give them an advantage in terms of ‘reading the room’; and I suppose (although personally I cannot offer any insight on this point), the judges might be better able to ‘read the lawyer’ too. That said, counsel might determine that, all things considered, appearing virtually is in the best interests of their client and, as such, it seems sensible to me to make the option available. This is also true of other courts, especially on straightforward matters and imperatively on scheduling and other routine issues, where virtual-only might even be an appropriate rule. Let us not ‘backslide’ too far!

This content has been updated on March 1, 2023 at 16:10.