Bar ramps up campaign to end ‘Zoom-only’ policy & get intervener counsel back into SCC’s courtroom

Law360 Canada (August 14, 2025, 12:12 PM EDT) -- Prominent intervener groups are telling the Supreme Court of Canada that its 2022 practice direction confining their counsel to Zoom and barring intervener lawyers from making submissions in person before the judges is hurting their advocacy and restricting access to justice for public interest groups. However, the top court says it’s sticking with its current policy since “virtual appearances have proven to be an effective means of supporting equal access.”

“The court’s current procedure, whereby all intervener counsel appear remotely, remains in effect,” Daniel Byma, the court’s executive legal officer and chief of staff to Chief Justice of Canada Richard Wagner, told Law360 Canada by email.

“Virtual appearances have proven to be an effective means of supporting equal access, a point underscored by many justice partners, including the Action Committee on Modernizing Court Operations,” Byma explained. “The court recognizes the importance of striking the right balance between accessibility, effectiveness and fairness in its procedures, and continues to assess and refine its practices to best serve the public interest,” Byma added. “These matters have been raised by the bar at all recent meetings of the court’s liaison committee, and the court values and welcomes this ongoing feedback.”

Byma also said that “part of the court’s decision to have interveners continue to appear remotely is the disproportionate cost to appear in person when interveners are typically only allotted five minutes. It is unreasonable for parties who are constrained by costs to expend significant sums for such a brief appearance,” he said. “While certain members and organizations from the bar have signalled that they are prepared to absorb those costs, it may be prohibitive to others.”

However, earlier this week the Canadian Labour Congress (CLC), a frequent intervener at the high court, became the latest public interest group to speak out as part of a broad-based bar-led campaign that continues to try to persuade the Supreme Court of Canada to rescind its three-year-old practice direction restricting intervener counsel to making oral submissions remotely, rather than giving interveners the same option as the main parties to have their counsel argue their case in person in the Ottawa courtroom before the nine judges.

Canada’s largest labour organization, representing over three million workers through its affiliated unions, wrote the high court on Aug. 11, 2025, asserting that in “our experience, requiring [counsel’s] appearance to be only by Zoom has become a barrier to the quality and effectiveness of interventions.”

CLC president Bea Bruske therefore urged the Supreme Court to consider adopting the same “hybrid” rule that the court applies to counsel for the main parties, which had been the standard operating procedure for interveners at the court in the years preceding the 2020 COVID-19 pandemic, which necessarily pushed the judges and counsel onto a virtual platform.

“The Zoom protocol was justified during the pandemic, which has now officially ended,” Bruske pointed out, adding that “the open court principle applies to counsel and their clients seeking an audience.”

She said the advantages of permitting in-person appearances by counsel include facilitating and improving essential collaborative preparation and strategizing with other counsel, both immediately prior to and during the appeal, as well as the ability to ensure that submissions are responsive to the court’s concerns.

In that regard, courtroom dynamics are not captured on the screen, but skilled advocates pick up on those dynamics when they are in person in court, Bruske said.

“As a result, we are concerned that interventions under the current rule precluding in-person attendance have become less impactful. We are also concerned that the Zoom rule of non-attendance for interveners is contributing to a decline in mentorship opportunities and skills acquisition for more junior lawyers, upon which the CLC and other public interest organizations, as well as the court, depend,” Bruske wrote.

The court made permanent the pandemic-generated Zoom-only rule for interveners in 2022, sparking backlash from many public interest groups and their appellate counsel, who often work pro bono.

“It’s clear that … most of the major public interest organizations in Canada who appear regularly doing intervener work for the court have now pressed the court to revisit this policy,” Queen’s University criminal law professor Lisa Kerr told Law360 Canada.

“It is a policy that is universally disliked among counsel,” Kerr remarked. “I’m not sure that I’ve ever seen this many lawyers agree on something, so my hope is that that message will get through to the court and that they will revisit it.”

A July 22, 2025, Globe and Mail op-ed headlined, “It’s time to let lawyers come back to the Supreme Court of Canada,” co-written by Kerr and prominent Toronto litigator Frank Addario, urged the high court to resume giving interveners the same choice as the main parties, that is to opt either for in-courtroom/in-person legal advocacy or remote/virtual submissions via videoconferencing.

Bruske said the CLC’s request that the court revive the hybrid approach was prompted by the Globe opinion piece, as well as by a June 7, 2024, letter to Chief Justice Wagner from the Women’s Legal Education and Action Fund (LEAF) and the Criminal Lawyers’ Association (CLA) requesting that the court restore the in-person option for intervener counsel.

(The LEAF/CLA request was supported by 19 other frequent interveners at the top court: Canadian Bar Association, 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.)

The Criminal Lawyers’ Association wrote Chief Justice Wagner again on Aug. 8, 2025, “strongly” endorsing and echoing Addario’s and Kerr’s insights “on the intangible — yet palpable — value of allowing intervener counsel to be physically present in the courtroom when matters of significant public importance are decided by Canada’s highest court. They eloquently capture the energy, gravity, and solemnity that in-person appearances bring — particularly when counsel representing diverse populations are able to offer a broad range of perspectives on the most pressing issues facing Canadians. We agree with the authors that in-person participation aligns with the Court’s commitment to enhancing public accessibility.”

The CLA reiterated seven arguments it continues to make to the court, including pointing out that remote communication can be affected by connectivity issues, lag time and other factors that render it less effective than in-person communication.

“Being in a courtroom with others also enhances many advocates’ presentation and persuasion skills, through the immediacy and authenticity of in-person interactions,” said one of several signatories to the CLA’s latest letter, Stephanie DiGiuseppe of Toronto’s Henein Hutchison Robitaille LLP, who co-chairs the CLA’s litigation committee.

“We believe that there is value to [intervener counsel’s] presence inside a courtroom … that maximizes our ability to make persuasive arguments to the court,” DiGiuseppe told Law360 Canada.

She noted criminal lawyers, like some other frequent interveners, represent vulnerable populations including youths, prisoners and racialized and Indigenous Canadians. “And there is, we believe, an enormous benefit to showing those groups that they have a place inside the courtroom at the Supreme Court of Canada; that their arguments are on equal footing in all respects with those of the parties; and that … the public perception is that the court is valuing the submissions made on behalf of these diverse groups at the same level as the submissions made on behalf of the parties.”

She added, “I have no doubt that the court does value those submissions at the same level, but what we’re talking about is the public perception of that fact. And when you look inside the [Supreme Court] courtroom, and you see some counsel are present and some are remote, what does that tell the public about the value of intervener submissions?”

Nader Hasan of Toronto’s Stockwoods Barristers, who has argued at the Supreme Court on some 30 occasions, representing interveners and parties, said he perceives a difference when he appears remotely for interveners as compared to when he argues for interveners in person.

“It’s very difficult to know, ultimately, what the judges are thinking, because they don’t tell you exactly what they’re thinking in the moment,” he told Law360 Canada. “What I do know is how many questions I get when I appear in person, and even if it’s for an intervener, I tend to get many more questions in person than I do over Zoom. … That’s a concrete indicator that I think it’s just perceived differently [by the judges]. It’s a different level of engagement.”

DiGiuseppe said the CLA remarks “a stark disparity” in the energy level in the courtroom when the court’s attention turns to counsel on the Zoom screen. “Call me old-fashioned, but I think there’s something about being in the courtroom and, … 10 human beings [nine judges plus presenting counsel] in this scenario, looking each other in the eye, connecting and communicating that is lost through the Zoom appearance.”

Hasan remarked that the pandemic showed Canada’s legal community the virtues of being able to pivot to a virtual courtroom in times of necessity.

“But I think the pandemic also taught us that there are virtues of in-person court proceedings: it is very difficult to reconstitute the solemnity and the seriousness of the courtroom virtually, and it is very difficult to replicate in-person oral argument via Zoom,” he explained. “So, it’s a wonderful alternative in times of emergency, but it shouldn’t be the forever substitute. And if that’s the theme, the trend we’re moving in, it should be concerning from an access-to-justice standpoint.”

According to the views expressed by Hasan and Addario, both top-flight experienced criminal and civil trial and appellate litigators, the Supreme Court’s exclusion of intervener counsel from its Ottawa courtroom negatively affects the efforts of senior counsel to mentor and help train lawyers who want to litigate before the highest bench.

“Advocacy in the Supreme Court is so unique and requires a special skill set,” explained Addario of Toronto’s Addario Law Group. “I use intervention appearances in the court as a mentorship opportunity. I take lawyers who may later represent a party in the court, and I show them around the court. We discuss what to watch for during the hearing,” he told Law360 Canada. “I can’t pass on what I know during a video appearance, and a lot of other experienced lawyers feel the same way.”

Hasan recalled that the first time he appeared at the Supreme Court of Canada, it was on behalf of a public interest intervener.

“In that appeal, both for the main parties and for other interveners, were many of the senior counsel across the country who I had grown up idolizing, and it was a real privilege to be there in person with them,” Hasan remembered. “I felt like a rookie at his first all-star game, and the ability to watch these luminaries of the profession up close and in action, and then chat with them casually over lunch after the hearing, that’s some of the best training a young lawyer can get.”

“And so now, when I go to the Supreme Court of Canada in person on behalf of the appellant or the respondent, I look around and I see all these empty counsel tables, and I feel sad because young counsel aren’t getting the opportunities I got to enjoy, the privilege of appearing in the Supreme Court of Canada in person,” Hasan said. “My view is our profession is at its best when we’re promoting access to justice and when we’re mentoring the next generation of lawyers. And I would hope that the Supreme Court of Canada’s policy on interveners in the courtroom would take … mentorship into account, going forward in future cases.”

Hasan added he’s hopeful that the top court will restore interveners’ choice to have their counsel advocate in the courtroom or remotely. “I think the chief justice has made it very clear … that he wants this court to be mindful of what the Canadian public wants and needs, and I think the court will probably hear these requests from counsel.”

“I’m hopeful that there can be meaningful dialogue,” he remarked, “because at the end of the day, I know that the court is as dedicated and committed to access to justice as the bar is, so there’s an alignment of interests and alignment of principles there, and I think ultimately … there will be improvement in this regard.”

In his remarks to the CBA’s 2024 annual meeting addressing the concerns the national association for more than 40,000 legal professionals raised over the top court’s Zoom-only policy for interveners, Chief Justice Wagner said the measure “offers substantial savings” to interveners, particularly in travel costs and “especially to those farthest from Ottawa.” As such, it “levels the playing field and improves access to justice,” the chief justice said.

The court’s June 25, 2024, reply to the June 7, 2024, joint letter from the CLA and LEAF 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. “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 said. “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 added, “As you know, the Court has named up to four counsel for each party, including interveners, in all judgments since 2022. This is intended to help junior lawyers develop their careers and increase the diversity of lawyers in cases before the Court. Finally, 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.”

University of Alberta law professor Gerard Kennedy, who closely follows the Supreme Court, said that, in his view, the court “probably should” let intervener counsel opt to argue in person in front of the judges.

“But if they do so, the court should probably be more discriminating about who gets intervention status, and certainly about who gets intervention status and oral argument,” he suggested, pointing out that the court more frequently used to allow interveners to write a factum but not give them oral argument.

There are competing considerations, Kennedy said. “Part of me wonders whether the court is concerned about simply accommodating what are sometimes dozens of counsel in person on any given day,” he said, alluding to the upcoming historic Bill 21 Charter case from Quebec, for which Chief Justice Wagner last month granted intervener status, and the right to five minutes of oral argument on Zoom, to a record 38 individuals, organizations and coalitions. (Seven attorneys general are also intervening as of right, with oral argument.)

“I can imagine that the court thinks that having that many lawyers in the courtroom is completely unwieldy, and in some of these large cases, that’s not an unfair concern,” Kennedy said. “Now a response to that may be that the court should be more discriminating in who gets to be an intervener, rather than to simply let everybody in. So, I guess the long and short of it is, there are values in tension here,” he said. “I see the court’s position. I certainly see the interveners’ position.”

He added that “there’s no such thing as a free lunch, that it is institutionally costly to have all of these submissions enforced in person. … There are disadvantages to having dozens of interveners in terms of just having to consider all of [their submissions]. It seems like the court is acting more like a parliamentary committee than traditionally as a court. And so if the court is saying, ‘Well, we’ll let you have your say, but we’re going to make you do it on Zoom,’ that is a potential way to balance it, but again, it comes with serious disadvantages.”

Kennedy remarked, “There are different values in tension here,” yet “there is absolutely no doubt, in my opinion — and I don’t even think the Supreme Court denies this, though they downplay it — that having counsel physically present in person really assists the sense that a party, including an intervener, is being heard.”

The fact that counsel for the parties are still allowed to appear in person “I think indicates that the Supreme Court clearly knows this,” he suggested.

Photo of Chief Justice Richard Wagner by SCC Collection.

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