“I am aware of the concerns expressed by the CBA about the fact that interveners are not allowed to attend hearings in person,” the chief justice told more than 350 people participating in the association’s virtual-only annual meeting Feb. 8.
Chief Justice Richard Wagner
Chief Justice Wagner told the bar association, “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.”
His remarks confirm the court’s intention to continue for the foreseeable future its ban on in-person attendance in court by intervener counsel, a policy the court rolled out in its fall 2022 session, under the rubric of ongoing COVID 19 health and safety concerns. The move at the time extended only to intervener counsel a prior policy that was adopted by the court after the start of the pandemic in 2020, which restricted all counsel to virtual appearances on Zoom for health and safety reasons.
The chief justice’s comments publicly address for the first time the concerns raised by members of the CBA’s Supreme Court of Canada liaison committee at their annual meeting with the top court last June.
Jean-Simon Schoenholz, Norton Rose Canada LLP, Ottawa
The “concerns” arose in 2022 when intervener counsel were informed by the court that they would be making their argument virtually during the fall session. When Law360 Canada asked the Supreme Court that summer why the court was planning to continue restricting counsel appearances to Zoom — but was only applying that restriction to intervener counsel, who usually only get five minutes to make their pitches to the bench — the court’s then-executive legal officer explained the courtroom has a limited capacity, and “in accordance with health guidelines, we have limited the number of individuals who can be in the courtroom at the same time.”
Renée Thériault said at that time that when intervener counsel were requested to appear via Zoom in the court’s 2022 spring session there were essentially two reasons: “one that is practical — capacity limits — and one that is a question of access to justice — a virtual appearance for a five-minute submission is more cost-effective for parties.”
Initial reactions to the move from members of the litigation bar contacted by Law360 Canada at the time ranged from concern to puzzlement about why the court was not offering a “hybrid” option (i.e. a choice between Zoom and in-person advocacy) to interveners, with some seeing the policy as devaluing the role of interveners. Interveners are required to make useful and different submissions than the parties, and usually put forward more generalized viewpoints, based on specialized expertise, with respect to cases that are, by definition, of public importance and thus have impact beyond the parties’ specific interests.
One counsel who often appears before the court told Law360 Canada intervener counsel frequently work pro bono for their public interest intervener clients, with the understanding that if counsel want to argue the client’s case in person before the judges, rather than virtually, counsel must pay their own travel costs to Ottawa.
Another lawyer who often acts for interveners said that “for me, being there in the courtroom is part of advocacy ... to actually respond to the judges in person, where you can see all nine of them, which you cannot do when you’re on Zoom.”
In other remarks to the association, Chief Justice Wagner, who chairs the Canadian Judicial Council, highlighted the federal judiciary’s ongoing concern over the high number of vacancies on the nation’s superior courts — 78 as of Jan. 1, 2024 — a six-per-cent vacancy rate, he said. “Unfilled positions on the bench escalate an already alarming situation in some courts that are facing a critical lack of human and financial resources,” said the chief justice, who wrote the prime minister last year warning that it is “imperative that appointments be made in a timely manner” and that “the current situation is untenable and I am worried that it will create a crisis in our justice system.”
“I know that efforts are being made to address this challenging situation,” Chief Justice Wagner told the CBA. He noted that the chief justices who make up the judicial council were pleased to see that Ottawa created 22 new judicial positions in 2023 and has created 116 new judicial positions overall since 2017. “But more can be done to address delays and backlogs and build capacity,” he advised.
That concern is shared by the CBA, whose president wrote then-newly minted federal justice minister, Arif Virani, last August to express the bar association’s “serious concerns” that the “shortage of judges seriously undermines public confidence in our justice system.”
Federal Justice Minister Arif Virani
The Toronto MP and lawyer pointed out that the federal Liberal government has appointed more than 685 judges since it assumed office in 2015, including 62 since Virani succeeded former justice minister David Lametti last July.
Virani encouraged lawyers to apply for the federal benches. “We need more jurists with exceptional legal knowledge and diverse backgrounds,” he said in a prepared text provided by his office. “Filling vacancies is my goal and my priority.”
Photo of Richard Wagner: SCC Collection
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