Who Gets a Voice at the Supreme Court? Understanding Interveners: Pod to Blog

By: Laura J. McPhee & Mark Jacka

Season three of Definitely Not Legal Advice kicks off with a brand new format and a brand new co-host. Laura McPhee is joined by Mark Jacka as they shift the podcast toward more informal, conversational discussions about the business and legal issues that matter to them — and hopefully to you, too.

In this episode, Laura and Mark tackle a topic that most people outside the legal world have never heard of: interveners at the Supreme Court of Canada. With the Court gearing up for a major hearing on the notwithstanding clause, there’s a related question bubbling beneath the surface — should interveners be allowed to appear in person, or is Zoom here to stay?

What Is an Intervener?

An intervener is a party that isn’t directly involved in a case but has something valuable to add. They’re not the plaintiff or the defendant — they’re a group, organization, or individual with a unique perspective that could help the Court make a more informed decision. Think of them as helpful informants rather than advocates for one side or the other.

To become an intervener, you need to apply. Your counsel puts forward an application, the Court reviews it, and if they decide your perspective is “useful and different” (the Court’s own terminology), you may be granted intervener status. It’s not guaranteed — the Court looks critically at what each intervener brings to the table.

Who Can Intervene?

In theory, anyone can apply. In practice, interveners tend to be advocacy groups, coalitions, or organizations with particular expertise in the subject matter. Laura points to coalition groups like CAPP (representing Canada's Upstream Oil and Natural Gas Industry companies) that band together to amplify their collective voice on issues that affect their industry.

Governments can intervene, too. In fact, when a constitutional question comes before the Supreme Court, provinces have a special status. The applicant must serve a copy of their application on all Attorneys General across Canada, and those Attorneys General effectively have a right to intervene on constitutional matters. In the upcoming notwithstanding clause hearing, several provinces — including Alberta, British Columbia, Ontario, and Manitoba — along with the federal government, have all sought intervener status.

The Big Debate: In Person vs. Virtual

Here’s where things get interesting. Before COVID, Supreme Court hearings were conducted in person. When the pandemic hit, everything moved to Zoom. Since 2020, the Court has allowed the main parties to return to appearing in person, but interveners? They’re still stuck on a screen. Several Attorneys General have pushed back against this, and Laura and Mark have strong feelings about it too.

Interveners typically get just five minutes to make their case. That’s five minutes to present something unique and different, engage the justices, and hopefully spark a conversation. Laura and Mark argue that doing this effectively over Zoom is incredibly difficult. You can’t read body language through a screen. You can’t tell if the judges are nodding along or looking confused. You’re a tile on a screen in a big courtroom, and the richness of in-person communication — the nonverbal cues, the energy, the back-and-forth — gets lost.

As Laura puts it, she would choose to appear in person 100% of the time if she could. The ability to have a real conversation with the judge, to gauge reactions and adjust on the fly, is something that virtual appearances simply can’t replicate. And it’s not just a loss for the intervener — it’s a loss for the judges too, who miss out on the chance to meaningfully engage with someone who has a useful perspective to offer.

What’s Next?

The Supreme Court hasn’t made a final decision yet on whether interveners will continue appearing virtually or be welcomed back into the courtroom. Laura and Mark suspect there may be some loosening of the rules — perhaps a graded approach — but they’re not ready to speculate on exactly what that will look like. One thing they both agree on: while they applaud the Court’s modernization in many areas, the push toward virtual participation for interveners could stand to be relaxed.

If you want to see the difference for yourself, Laura recommends heading to the Supreme Court’s website and comparing videos of pre-2020 hearings (like the Carter case on medically assisted dying) with post-2020 hearings. The difference in energy is striking.

Listen to the Full Podcast Here:

A podcast by Laura McPhee and Mark Jacka of Blue Rock LLP

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice.