Instead, the lawyers representing more than 50 interveners (a record number that includes half a dozen attorneys general) will make their oral arguments remotely on the virtual Zoom platform, as first reported by Law360 Canada on Nov. 14.
The Supreme Court’s commitment to stick with its controversial Zoom-only policy for all intervener counsel was most recently confirmed by the court in the upcoming momentous Quebec appeal, which deals with the Charter’s s. 33 notwithstanding clause, as well as with the Charter’s s. 28 guarantee of equal rights and freedoms to “male and female persons,” s. 23 guarantee of minority language educational rights and s. 3 protection of the right to vote: English Montreal School Board, et al. v. Attorney General of Quebec, et al.
The appeal to determine the constitutionality of Quebec’s Bill 21 secularism law will be argued over five days, from March 23 to March 27, 2026, by a phalanx of lawyers advocating on behalf of many appellants and respondents (including parties who are both), as well as 51 interveners (according to the court’s count).
Supreme Court of Canada Chief Justice Richard Wagner
“All interveners, including the attorneys general intervening pursuant to Rule 33(4) of the Rules of the Supreme Court of Canada, shall appear by videoconference at the hearing of the appeal,” Chief Justice Wagner ruled.
His words also rejected, by implication, a written request to the court last September by The Advocates’ Society — which was supported by lawyers representing more than two dozen interveners in the Bill 21 case and made detailed arguments as to “why the unique circumstances of these appeals present the appropriate moment” for the court to rescind its COVID-19 pandemic-era policy of mandating only virtual appearances for interveners.
The Advocates’ Society’s Sept. 15 letter was just the latest of many individual and collaborative efforts since 2022, by members of the litigation bar and the legal academe, as well as by a wide range of frequent interveners at the court, to try to persuade the top court to restore to interveners — as it did for parties, after the COVID-19 pandemic — the “hybrid” option of choosing to have their lawyers advocate remotely or in person, in court before the judges.
The court’s latest rebuff shuts the door for now on the bar’s campaign for a hybrid option, court watchers told Law360 Canada.
Lawrence David, Public Interest Litigation Institute
“At this point, I am not sure it would be a good idea to continuously raise the issue,” David said. “Further pressing the issue can, at some point, become annoying or be seen as unnecessarily obstinate — especially when the court has repeatedly stated its rationale for maintaining its policy.”
In his annual address to the Canadian Bar Association’s (CBA) annual meeting on Feb. 8, 2024, Chief Justice Wagner addressed the concerns raised by the bar about the court’s virtual-only policy for intervener oral argument. The chief justice stated that the court’s move “offers substantial savings” to interveners, particularly in travel costs and “especially to those farthest from Ottawa.” He said this “levels the playing field and improves access to justice.”
Since then the court has publicly reiterated, and to some degree elaborated on, why it is maintaining its Zoom-only policy and position that “virtual appearances have proven to be an effective way to promote equal access to the court,” notwithstanding multiple in-depth submissions and pleas from the bar and interveners arguing that a hybrid policy would better facilitate interveners’ access to justice.
David, author of Stare Decisis, The Charter and The Rule of Law in the Supreme Court of Canada, suggested that “while the court is open, and occasionally responsive, to the views of the bar on practice issues, it may be wary of ceding to repeated pressure after taking a position on a given policy. Doing otherwise may create an undesirable institutional precedent under which the court should reverse or change any policy that is unpopular with the bar, even if the court fundamentally believes it to be sound.”
He added that it is “unfortunate that the court has never responded to, or addressed, the alternative suggestion of a ‘virtual-optional’ policy that would reconcile the bar’s desire for in-person appearances with the court’s stated objective of ensuring access to justice by not limiting interventions to organizations who can afford to send their lawyers to Ottawa to argue in person. The hybrid model clearly allows for both objectives to be met.”
The lead counsel for The Advocates’ Society in the Bill 21 appeal, Sylvie Rodrigue of Toronto’s Torys LLP, said that “while The Advocates’ Society’s views remain unchanged from our Sept. 15, 2025, letter to the [Supreme Court’s] registrar, we have been heard by the court on this issue and respect the court’s decision. We look forward to the hearing of the appeal.”
Lisa Kerr, Queen's University Faculty of Law
“The blanket rule that interveners are not allowed inside the courtroom continues to cause problems,” explained Kerr. “Intervener counsel spend considerable resources, typically pro bono, on the factum and preparation for oral argument, but then struggle to make an impact and engage through a screen. Counsel for interveners are unable to observe the facial expressions and body language of all nine justices during the hearing, and there is often a delay when questions are posed on Zoom.”
Kerr said that while it may be true for the judges that they perceive no difference between the efficacy of in-person and Zoom advocacy, “counsel making submissions do feel that the quality of their argument is negatively impacted. A hybrid rule would protect access to justice for interveners while alleviating these issues.”
She noted that the only argument she has heard against a hybrid policy is that it would put interveners whose counsel make Zoom submissions on a different footing from those whose counsel are physically present before the judges (the chief justice has said it “levels the playing field”).
Kerr said she finds that argument incompatible with the court’s expressed view that there is no qualitative difference between in-person and Zoom argumentation.
Frank Addario, Addario Law Group LLP
“It’s the court’s prerogative, obviously, but I think the in-person hearing is better for the speaker, the listener and the appearance of inclusion,” Addario said. “I think the bar agrees.”
“I think the hybrid model — giving the choice to counsel — is superior, particularly given the court’s view that it makes no difference to them whether the lawyer appears in person or virtually,” Addario commented.
Asked whether the organized campaign by the bar and interveners seeking to establish a hybrid policy at top court is dead for now, Addario replied, “It’s hard to know.”
“There is still unhappiness with the policy among many advocacy organizations,” he explained, remarking that “every other workplace has moved back to in-person [attendance], or is embracing the hybrid model.”
In light of the court’s stance that there is no qualitative difference between in-person and Zoom legal argumentation, and the judges’ own Zoom participation in hearings during the pandemic and occasionally at other times, is there really a need for the Supreme Court’s 1940s-era courtroom and building? (The court’s building will soon undergo an overdue and necessary $1-billion-plus multiyear modernization, with millions also being spent to construct a temporary Supreme Court courtroom and related facilities.)
“I think a proper courthouse is a must for the administration of justice and I think it should be used,” Addario responded. “I think the carpet and the benches and the podiums should be worn out by lawyers pleading their cases.”
David told Law360 Canada that one takeaway he sees from the chief justice’s Dec. 12 decision on the motion by the intervener attorneys general in the Bill 21 appeal is that the court’s policy requiring virtual-only appearances for interveners “is here to stay.”
“It is quite significant that the court rebuffed the AGs, despite their joint motion for in-person appearances, considering that AGs have special intervention rights under the Supreme Court Act and Rules of the Supreme Court of Canada,” David said.
Another takeaway, he suggested, is that the court “is unwilling to create a two-tier system whereby AGs get special treatment for in-person interventions. The nature, complexity or high-profile nature of an appeal will not be sufficient justification to warrant the court departing from the virtual-only policy, or to allow for a two-tier system for in-person AG appearances.”
The court’s move also signals that Chief Justice Wagner “was serious” when he highlighted in his speech at the opening of the Supreme Court’s court year last October the benefits of, and the court’s preference for, maximizing the use of technology for interventions, David said.
In a June 7, 2024, letter to the chief justice, the Women’s Legal Education and Action Fund (LEAF) and the Criminal Lawyers’ Association asked the court to restore the in-person option for intervener counsel — a request supported by 19 other frequent interveners, including the CBA, Canadian and B.C. Civil Liberties Associations, Canadian Association of Refugee Lawyers, Aboriginal Legal Services, Animal Justice, Barbra Schlifer Commemorative Clinic, Black Legal Action Centre, Canadian Constitution Foundation, Canadian Muslim Lawyers Association, David Asper Centre for Constitutional Rights, DAWN Canada, Ecojustice, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, South Asian Bar Association, South Asian Legal Clinic of Ontario, Trial Lawyers Association of B.C., and West Coast LEAF.
In its June 25, 2024, written reply, the court said the chief justice discussed their submission with his colleagues.
“Virtual appearances remain not just a convenience, but a necessity, to ensure equal access to justice for all interveners,” the court’s registrar, Chantal Carbonneau, wrote on the court’s behalf. “The court will continue to require virtual appearances for all interveners’ counsel.”
“There is no difference for the court, and certainly no disparity between parties’ positions, when interveners make their submissions virtually,” Carbonneau explained. “Also, the public service and function of the interveners’ counsel you mention in your letter is no less important, and no less achieved, when appearing virtually,” she said. The “grandeur and dignity of appearing in person, or the collegiality among colleagues you also mention, should not take precedence over the people we serve as judges and lawyers.”
Photo of Chief Justice Richard Wagner: SCC Collection.
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