SCC denies requests by AGs & others to make in-person intervener arguments in historic case

Law360 Canada (November 12, 2025, 6:37 PM EST) -- The Supreme Court of Canada is denying recent requests from six intervener attorneys general — as well as counsel for The Advocates’ Society and dozens of other intervener groups — to allow them to make their arguments in person in the upcoming historic Bill 21 appeal, Law360 Canada has learned.

In response to our questions, the Supreme Court of Canada told Law360 Canada that “the current procedure, whereby all intervener counsel appear remotely, remains in effect. This applies to all upcoming hearings. At this time, the court does not intend to revisit this approach.”

The court’s Nov. 12, 2025, written response also reiterates comments made on several previous occasions by Supreme Court of Canada Chief Justice Richard Wagner, emphasizing that “virtual appearances have proven to be an effective way to promote equal access to the court.”

“Public interest evolves with time, society and technology, and the court will continue to review and refine its practices to ensure they serve that interest,” explained Daniel Byma, the court’s executive legal officer and chief of staff to the chief justice. “Ultimately, the public interest will always be the guiding principle in these decisions.”

The litigation bar and many diverse public interest and intervener groups have been working unsuccessfully for several years to try to persuade the top court to rescind its pandemic-era blanket “virtual only” policy, which requires intervener counsel to appear remotely. Instead, they argue for a “hybrid” option that would give interveners the choice to have their counsel appear remotely or in person before the judges.

It has been an uphill battle. “I think this battle has been lost,” a lawyer predicted, hours ahead of today’s Supreme Court confirmation that, at least for the foreseeable future, the court is sticking to virtual-only appearances by intervener counsel.

On Nov. 10, 2025, the top court informed counsel on the Bill 21 constitutional appeal that the Quebec case will likely be heard in the court’s winter session. The “tentative” time frame given, within which a three-day hearing is anticipated, is March 16-27, 2025.

The multipronged appeal — in respect of a Quebec law that prohibits certain public workers from wearing religious symbols while performing their duties — is widely expected to result in a landmark constitutional judgment, including on the Charter’s s. 33 “notwithstanding clause”: English Montreal School Board et al. v. Attorney General of Quebec et al.

Last August, the intervener attorneys general of Canada, Ontario, Manitoba, British Columbia, Saskatchewan and Alberta made a motion to the top court asking, in part, for permission to have their counsel make their oral argument in person before the judges. At the time, Chief Justice Wagner deferred his decision to an unspecified “later date.”

(At press time, the court had not yet decided the AGs’ motion.)

Following the chief justice’s deferral of the intervener in-person argument issue, The Advocates’ Society took the opportunity to send a Sept. 15, 2025, letter to the Supreme Court that was endorsed by litigators representing more than two dozen interveners.

In the letter, the society sets out “why the unique circumstances of these appeals present the appropriate moment for the court to revisit its policy of mandated virtual appearances for all interveners.”

Among those reasons, “the court’s current policy risks creating a perception among the public and interveners that some groups are less welcome within the court to provide their perspectives on the important issues of the day,” says the letter signed by Sylvie Rodrigue of Torys LLP, lead counsel for The Advocates’ Society in the Bill 21 appeal.

“As evidenced by the record number of interveners in these appeals, the issues before the court have generated extensive interest from Canadians of diverse viewpoints, religious backgrounds and geographical regions,” Rodrigue noted. “In the context of these highly contentious issues, the presence of these many and diverse interveners has enormous symbolic value for the groups they represent: when the public witnesses these groups represented in the courtroom, justice is seen to be done.”

Rodrigue continued, “That message is undercut when interveners are excluded from the courtroom: instead of having their voices presented on equal footing with the parties, the exclusion of interveners creates the impression of a two-tier system, where interveners’ submissions are of lesser importance than the parties.”

Rodrigue wrote that “while the parties typically have a greater stake in the direct outcome of the appeal, as this case exemplifies, interveners often represent groups who are as affected by the nationally important issues underlying the appeal as the parties.”

Rodrigue said that The Advocates’ Society has “undertaken extensive research and consultation on the access to justice concerns engaged in remote and in-person appearances, culminating in its report entitled ‘The Right to be Heard: The Future of Advocacy in Canada.’”

“In short, while virtual appearances can effectively reduce or eliminate certain barriers — notably the time and expense involved in travelling — they can also introduce barriers that are not present with in-person appearances,” she stated. “For example, effective virtual participation requires a reliable and adequate internet connection, imposing a serious barrier for counsel in areas with less connectivity. In Canada, such barriers often manifest along existing lines of inequality, as Indigenous and northern communities are particularly affected by disparities in connectivity.”

Photo of Chief Justice Richard Wagner: SCC Collection

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at cristin.schmitz@lexisnexis.ca or call 613-820-2794.