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| Lawrence David |
The Supreme Court of Canada enjoys a long tradition of allowing civil society and other stakeholders to seek leave to participate as interveners in appeals and references heard by the court. Interveners are prohibited from raising new issues (see, for example, R. v. McGregor, 2023 S.C.J. No. 4; R. v. Mian, [2014] S.C.J. No. 54) and from supplementing the evidentiary record, but consistently make significant contributions to Supreme Court proceedings. Indeed, the participation of interveners transforms appeals from adversarial litigation between two parties on issues of national importance to a truly participatory, democratic and inclusive forum for the issues to be resolved while also enabling stakeholders to contribute unique, diverse and pluralistic perspectives that might otherwise elude the court or the parties in the context of the legal debate.
Interveners often propose new legal tests, identify complexities in the jurisprudence and otherwise provide fresh insights of great assistance to the court.
Interventions in Supreme Court proceedings are primarily governed by Rules 55 to 59 of the Rules of the Supreme Court of Canada (SOR/2002-156). A motion for leave to intervene must “identify the position the person interested in the proceeding intends to take with respect to the questions on which they proposed to intervene” (Rule 57(2)(a)) and “set out the submissions to be advanced by the person interested in the proceeding with respect to the questions on which they propose to intervene, their relevance to the proceeding and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties” (Rule 57(2)(b)).
Indeed, the virtues of appellate participation must be weighed against competing legitimate interests, including the avoidance of duplicative submissions and ensuring that the proposed intervener’s submissions will indeed be useful to the court. This is a question of preserving the court’s — and the parties and other interveners’ — valuable time and resources. As such, filing a motion for leave to intervene does not automatically mean that it will be granted, and it is not uncommon for the court to grant some motions and deny others in the context of a given appeal.
As well, the participation of interveners in an appeal or reference — or the polycentric nature of the issues their submissions address — “does not turn the Court into a legislative committee or a Royal Commission” (R. v. McGregor, 2023 S.C.J. No. 4, at para. 105). The court has also adopted procedures and protocols governing intervener participation in the Supreme Court proceedings: see November 2021 – Interventions and March 2017 – Allotting Time for Oral Argument.
Until the transformational COVID-19 pandemic changed essentially all aspects of life and legal practice, interveners whose application for leave to intervene was granted by the court made their submissions in person — that is, in the Supreme Court of Canada courtroom, before the justices constituting the panel for the given appeal or intervention. The pandemic, however, required the court to only hold virtual hearings, under which the chief justice and justices, as well as parties and interveners, all made submissions on Zoom — in great part thanks to the invaluable assistance expertise of Supreme Court staff.
Distancing limits and other health and safety precautionary protocols were eventually lifted, and the Supreme Court resumed in-person hearings. Interestingly, however, only the parties in the appeal or reference are permitted to make their submissions in person before the justices comprising the panel in the given proceeding. Since fall 2022, interveners are only allowed to make their submissions virtually, using the Zoom platform. A February 2024 article by Law360 Canada’s Cristin Schmitz emphasized that this “controversial policy” has indeed been met with mixed responses from lawyers used to — or interested in — representing interveners before the Supreme Court of Canada. As well, in May 2025, the Canadian Civil Liberties Association’s motion for an order allowing counsel to present their intervener submissions in person in His Majesty The King. v. David Carignan (SCC No. 41186) was denied.
The court’s stated rationale for restricting interveners to virtual appearances was articulated by Chief Justice Richard Wagner during a speech delivered to the Canadian Bar Association at its annual conference held on Feb. 8, 2025. The policy “offers substantial savings, especially to those farthest from Ottawa” and “as such, levels the playing field and improves access to justice.” This is especially the case since interveners are only granted five minutes to present their submissions to the court.
In essence, if the court insisted on in-person appearances for interveners, this would restrict access to justice by limiting interventions to entities and organizations who can afford the costs of travelling to Ottawa, securing accommodations and all other incidental expenditures. The concern is clearly that interventions should not be limited to deep-pocket organizations and to the large corporate commercial law firms whose counsel admirably often represent interveners on a pro bono basis.
The chief justice is correct.
The undersigned author believes that a further benefit of this policy is to restrict the court’s environmental footprint. Fewer lawyers travelling to Ottawa for a Supreme Court appearance means reducing the environmental impacts of such travel — whether by air, train, automobile or otherwise.
But there is another, pragmatic solution that achieves all of the chief justice’s stated objectives while allowing interveners to appear in person during Supreme Court hearings. Stated simply:
The court should implement a policy of discretionary hybrid appearances for interveners. Interveners concerned with travel and expenditures can opt to appear virtually. Interveners who can afford the incidental costs of Supreme Court interventions can appear in person. The choice should be left to interveners, on a case-by-case basis, subject to capacity limitations and other rules and protocols.
A cardinal virtue of this approach is that it requires minimal adjustment to current protocols. At present, every single Supreme Court hearing in which at least one intervener is involved is held in hybrid mode. As well, in some appeals — including very recent ones (May 2025) — one or more justices have participated in hearings on Zoom. Allowing interveners to appear in person or online therefore preserves the current hybrid mode of many Supreme Court hearings.
The proposed revised hybrid-optional policy for Supreme Court interventions also aligns with a key reason stated by Chief Justice Wagner for maintaining the current virtual-only policy of intervener counsel appearances. In particular: “It does not matter to members of the court if counsel is standing before them or appearing on screen. Strong, well-reasoned and persuasive arguments can be made from anywhere.”
The undersigned fully agrees. As well, if interveners appearing in person or virtually has no impact on the court’s engagement with their arguments, then interveners should be permitted to appear virtually, or in person, at their discretion. Such a policy is furthermore even more inclusive than the virtual-only option since it accommodates lawyers’ own views on in-person and virtual appearances. Indeed, some counsel may feel that there is no difference and may choose to appear virtually even if they, their law firm or the intervener organization can actually afford it.
The hybrid optional approach further accommodates lawyers who believe — like the undersigned — that in-person appearances are preferable due to the irreducible and irreplaceable experience and impact of engaging with the chief justice and justices in person. Virtual hearings have the convenient virtue of allowing counsel to argue from the comfort of the office, but many legal professionals believe that there is no substitute to appearing in person in the Supreme Court of Canada, with the serenity and magical atmosphere it inevitably involves.
The undersigned is, of course, sensitive to the context in which the policy restricting intervener counsels to virtual appearances was adopted — i.e., the need to maintain distancing and limit the number of persons in the courtroom during hearings as part of broader health and safety considerations.
That time has, however, come and gone: in recent months, the courtroom has been used to host events and conferences that pictures on the court’s own social media accounts show were filled to capacity by members of the legal profession. This may even include legal professionals who have represented interveners virtually in the context of appeals heard by the Supreme Court — or desire to do so.
Overall, the Supreme Court should revise its current policy on intervener submissions and allow counsel to choose whether to appear in person or virtually. This revised policy would reconcile pragmatism and the critical objective of access to justice, without which the rule of law ultimately suffers (Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] S.C.J. No. 59, at para. 39).
Lawrence David, LL.M is a law professor at the University of Ottawa’s Faculty of Law (Common Law Section), a lawyer in private practice, and the founder and president of the Public Interest Litigation Institute. He has appeared as counsel for an intervener in three recent appeals, served as law clerk to Justice Rosalie Abella, and is the author of Stare Decisis, The Charter and the Rule of Law in the Supreme Court of Canada (LexisNexis, 2020).
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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