Back to School and Back to Court? In-person Interventions at the Supreme Court of Canada

This article was originally published in Law360 Canada.

The start of September always brings to mind back-to-school season. Freshly sharpened pencils, the changing of the leaves, and cooler temperatures. Could this fall also bring interveners back into the Supreme Court of Canada courthouse?

The Supreme Court of Canada has long opened its doors to interveners. While they are not parties to a case, interveners can and often do provide a unique perspective to the Court to assist it with its decision-making. Many interveners are public interest organizations that have specialized expertise or experience with the particular issue before the Court.

During the pandemic, the Court switched to virtual interventions. In other words, counsel for interveners appeared virtually via Zoom, rather than in person at the courthouse in Ottawa.

In the fall of 2022, the Supreme Court announced its intention to continue with this policy for interveners for the foreseeable future. While the policy continues to this day, there is increasing pressure from members of the bar to allow interveners back in person at the Court.

In the upcoming year, the Court will be hearing an important case regarding the notwithstanding clause of the Charter (section 33), which allows federal or provincial governments to pass legislation that overrides certain rights guaranteed under the Charter. At issue is a particular piece of provincial legislation from Quebec prohibiting the wearing of religious symbols in certain settings.

Given the issues involved in this case, it is unsurprising that it has generated significant interest. A total of 38 public interest organizations have been granted leave to intervene, along with seven Attorneys General.

A coalition of Attorneys General brought a motion to file a lengthy factum, present longer oral arguments, and appear in person. The Court granted the motion to file a lengthy factum, but deferred consideration on allowing the Attorneys General to provide longer oral arguments and appear in person.

It remains to be seen whether the Court will allow some — or possibly, all —interveners the option to present in person at its courthouse.

From my experience working as a clerk for a justice at the Supreme Court, there are significant benefits to being in the courtroom. When you are there, watching in person, it is much easier to have a sense of what issues are concerning the judges and how they are responding to the arguments. Reading the room is much more challenging when your view is limited to what you can see on Zoom.

For more junior lawyers, the opportunity to appear in person at the Supreme Court in its majestic courtroom is unparalleled advocacy experience. I am hopeful that the Court will reopen its doors to all those who want the experience of arguing in person in its courthouse, including counsel for interveners.