The top court confirmed to The Lawyer’s Daily its anticipated policy for the fall, but acknowledged it has not yet consulted with interveners — who are usually granted only five minutes to make their pitches to the bench — about its plan to restrict their counsel to Zoom.
“We are definitely inclined to enhancing and promoting the use of virtual hearings at the court,” Supreme Court of Canada executive legal officer Renée Thériault said via e-mail. “This matter will be discussed further later, during the fall session, with court agents and other representatives of the bar.”
Thériault added that the court is “approaching the circumstances with the utmost caution.”
Asked to explain the court’s rationale for limiting intervener counsel to Zoom, Thériault responded that “the pandemic is still with us. 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. The capacity of the courtroom may be expanded in the fall, but we will only determine that in September.”
She said that when intervener counsel were requested to appear via Zoom in the spring session this year 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 from members of the litigation bar contacted by The Lawyer’s Daily ranged from concern to puzzlement about why the court is not offering a “hybrid” option (i.e. a choice between Zoom and in-person advocacy) to 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 which are, by definition, of public importance and thus have impact beyond the parties’ specific interests.
Limiting interveners’ counsel to Zoom is “not great,” remarked a lawyer for a frequent intervener at the Supreme Court. “There’s definitely something that you lose by not being in the courtroom, particularly if some [lawyers and judges] are in the courtroom,” she suggested. “If there are pandemic-related reasons, I get it. But the idea that this might become a permanent change is concerning,” she said, commenting on the prospect of rule creep.
“I do think that it might become a bit harder to find counsel that are as interested in doing pro bono work — which a lot of intervention work is — if they’re not going to have the opportunity to actually be there, in person, before the judges.”
The lawyer, who spoke on a not-for-attribution basis, suggested it would be “good” and “appropriate” for the court to consult with interveners about plans to limit their counsel to Zoom. One worry for interveners is that confining their counsel to Zoom might be a step toward restricting interventions per se.
“We have seen some cases recently where groups that you would expect to be allowed to participate are not, and so I think we’re always on the lookout for that, and it would be interesting to see how this plays out in terms of that,” she remarked.
.jpg)
Eugene Meehan, Supreme Advocacy LLP
“You don’t get the same personal connection, and back and forth with the judges, when there are a couple of screens, thousands of kilometres of wire, and a satellite or two between you,” Meehan said. “Most of our clients want to be in the court, in person, their counsel speaking directly with the judges, without the risk of their internet cutting out, or an unexpected pet or child making an appearance as non-counsel of record.”
Meehan, who often appears as counsel for parties and interveners at the top court, said the impact of in-person and Zoom advocacy is different.
“Counsel flying from British Columbia and getting a hotel in Ottawa to make submissions for less time than they spent in their Uber that morning may not be proportionate from a time perspective, but that five minutes could have a significant effect on the case,” he said.
Another experienced Supreme Court litigator, who often represents interveners, said restricting their counsel to Zoom (in the absence of a compelling public health justification) would be “too bad” and “not sensible.”
It could negatively impact interveners’ in several ways, he suggested.
“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,” he elaborated. “If I’m arguing something in front of a single judge [on Zoom], I can pin the judge’s face on my screen, so I see them, and I’m watching their reaction as I’m making my submission. It’s still not as good as being in the courtroom because I can’t see all their body language, and because I can’t communicate with them directly face-to-face, which I do believe is qualitatively different than communicating via Zoom.”
The litigator, who spoke on a not-for-attribution basis, said that while advocating via Zoom is, generally speaking, suboptimal, it has a particular downside at the Supreme Court of Canada.
“You can’t see nine people at once on the Zoom screen,” he pointed out. “And so I can’t pitch my submissions to particular judges, which I do when I’m acting for an intervener and I only have five minutes. If I’m there for an hour [on behalf of a main party], I’m talking to all nine of [the judges] most of the time, and it doesn’t matter so much. But when you’ve only got five minutes ... my practice is to go in — and I’m typically picking two or three of the judges that I’m really speaking to with my submission ... and I’ll either pitch to those judges that I think are going to use my submissions to go in the direction they are already going, or I’ll pitch to ... who I think is going to be hostile to my submissions to see if I might use their push back to my submissions to help the judges that I think are going to agree with me, or that are on the fence, to go the way that my client, as an intervener, would like the appeal to spin. I can’t do that on Zoom, and so that’s a real problem for me.”
He suggested restricting intervener counsel to Zoom could provide more opportunity for junior counsel to make submissions to the apex court. Correspondingly, it could further disincentivize top counsel, who often represent interveners at the Supreme Court pro bono, from wanting to appear.
“I think the participation of senior counsel has ebbed significantly, since the court went to [limiting argument to] five minutes for interveners — that was a huge thing,” he said. “I perceived that ... willingness to be involved in appeals ... and putting in the hours and hours that it takes to do a good job on an intervention, the threshold [for taking on an intervention] went way, way higher for senior people, when the payoff was only five minutes to talk to the court — you can’t change anybody’s mind in five minutes,” he explained. “So that was one step. If the five minutes are then on Zoom —- where you can’t even accomplish the full effect of oral advocacy, no matter how good you are, and how good your webcam setup is — that’s just another step along a primrose path toward interventions being devalued [and] being not worth the while of senior counsel.”
He added that, from a client intervener’s perspective, the benefit of having a senior lawyer make submissions for five minutes at the Supreme Court has gotten “quite small” as compared to what more junior counsel can do in such a short time. “The difference between what [junior counsel] can do in 10 minutes, and what someone senior ... who is an excellent appellate advocate, can do in 10 minutes is much bigger, because it’s literally twice as much time,” he suggested.
Peter Kryworuk, president of The Advocates’ Society
The chair of the Canadian Bar Association’s Supreme Court of Canada liaison subcommittee, Alan Rankine of Ryan Law, told The Lawyer’s Daily “I think our concern would come in if [restricting interveners to Zoom] was made permanent, with no discussions.”
“If there’s going to be a permanent go-forward change, we’d like to do what we normally do, and get input from the Supreme Court of Canada bar and try to develop a model that works for everybody,” he said, adding that a hybrid-type model would likely “be the best.”
Meehan suggested that each case and intervener could be assessed by the court with respect to limiting oral advocacy to Zoom. “Why make it a blanket permanent rule?” he queried. “Some cases, depending on the subject matter, number of interveners, and their proposed submissions, may be better suited to have in-person submissions.”
He also noted that the top court frequently refers to the submissions of interveners in its reasons for judgment, while also describing some as helpful.
In some important cases, the judges have also kept counsel, who were acting for interveners, on their feet in the courtroom for considerably more than five minutes in order to answer the judges’ questions.
If you have any information, story ideas or news tips for The Lawyer’s Daily, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.