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Renée Thériault

SCC to launch virtual hearings in June; carbon tax challenges moved to special fall session

Thursday, April 30, 2020 @ 1:12 PM | By Cristin Schmitz


The Supreme Court of Canada is launching virtual hearings in June to catch up on some of the 11 cases it postponed in March, April and May due to the COVID-19 pandemic, and it plans to go ahead with hearing provincial challenges to the federal carbon pricing regime at a special session in September.

The top court announced April 29 that the judges will hear by videoconference: on June 9, Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation; on June 10, R. v. Thanabalasingham; on June 11, Li v. The Queen; and on June 12, oral argument on a leave to appeal application in Weldekidan v. The Queen.

On unspecified dates yet-to-be nailed down for September, two high-profile provincial challenges to the constitutionality of the federal carbon tax, A.G. Saskatchewan v. A.G. Canada and A.G. Ontario v. A.G. Canada, will be heard together with A.G. British Columbia v. A.G. Alberta. The first two cases, which attracted more than two dozen interveners, were tentatively moved to June last March, and are being slated for a rare special session in the fall. It is not yet known whether the hearings will be able to go ahead in person — rather than virtually — at that time, given the COVID-19 pandemic.

During the special fall session, the judges will also hear argument on Conférence des juges de la Cour du Québec v. Chief Justice, in which the province of Quebec is asking the Supreme Court to overturn a successful constitutional challenge by the judges of the Quebec Superior Court to the province’s power to raise from $70,000 to just below $85,000 the exclusive monetary jurisdiction of Quebec’s provincial court.

Renée Thériault, SCC executive legal officer

The Supreme Court said all the other hearings that were postponed due to COVID-19 will be heard during the regular fall session that begins Oct. 5, 2020.

Supreme Court of Canada executive legal officer Renée Thériault told The Lawyer’s Daily videoconferencing during Supreme Court hearings has occurred in the past (e.g. when a judge had to be away from Ottawa, or a counsel out west was arguing remotely on a leave application). “We’ve had videoconferencing in the past for 30 years, but it’s been used very, very exceptionally when it was needed,” she explained.

The scale of the virtual hearings the court is embarking upon in June — with all the judges and all counsel participating remotely — is unprecedented, she confirmed. “We’ve never had an instance where everyone is … not there in person.”

The media and public will be able to view the hearings, she said.

Thériault said it remains to be determined which platform/conferencing software will be used and how the hearings will be organized logistically, for example whether some or all of the judges will gather in the courtroom (with the required physical distancing from each other) or be participating from their offices or other remote locations.

“It’s something that requires a lot of thought and that’s what we’ve been working on,” Thériault explained. “We need to make sure that we are sensitive to the fact that everything we do has to be simultaneously interpreted … that’s a paramount consideration for us. We have to make sure that it is secure. We have to make sure that there are no impediments on the ability to pose questions — that is obviously a prime consideration for any solution that we go forward with. And we have the additional challenge, for instance, in cases where we have multiple interveners, [that] not all platforms can support a significant number of … people joining on the platform that’s being used for the videoconferencing. So that also has to be taken into consideration.”

Asked whether the court will be able to ensure that the quality of the hearing given to the cases heard virtually will be equal to the quality of in-person hearings, Thériault answered “I have every confidence that the quality of the hearings will be maintained.”

“We have a duty to make it work,” she stressed.

Eugene Meehan, Supreme Advocacy

Eugene Meehan of Ottawa’s Supreme Advocacy, who is a Supreme Court agent, including in the carbon tax cases, pointed out that remote appeals have already occurred in various courts of appeal in both Canada and in the United States.

“The U.S. Supreme Court has announced 10 remote appeals, by phone, not video, for first two weeks of May,” he said. “It has happened multiple times at the B.C. Court of Appeal, both in tele- and videoconferences. In the U.S., it has been done in one large Court of Appeal, in a hearing featuring identical virtual bookcase backgrounds.”

Meehan said when the Supreme Court of Canada has used videoconferencing before, there were technical issues, including delayed audio or delayed video, or audio and video that did not match. “Presumably these technical issues have been remedied,” he observed.

But he questioned whether virtual hearings offer counsel the same advantages as in-person hearings, for example to read and respond to the bench. “The courtroom is crescent-shaped deliberately, wrapping elliptically around counsel arguing,” he pointed out. “There is eye contact with every single judge, and you also get to see interactions and interplay among the sitting judges, both when you are arguing and also your opponent too,” he noted. “When a judge asks a question, you get to see the others’ reactions. That’s important because, for a range of reasons, a justice will ask a question they want another justice to hear the answer to. How much of that will translate electronically?”

Meehan also noted there is considerable uncertainty as to when in-person hearings can resume.

“Of all the courts in Canada, does it make more sense to get cracking by video and avoid a backlog, until in-person hearings can fully resume?” he asked. “We don't need R. v. Jordan to tell us, but generally speaking speedier justice is better justice … on the civil side as well.”

Thériault said the court is committed to continuing to discharge its duties to litigants and to the public, notwithstanding the impediments and challenges posed by the pandemic. “In many ways it is an access to justice issue,” she explained. “The court, virtually speaking, is open. We’ve continued to render our judgments. We’ve continued to take proceedings. … We’ve not shut down access to justice,” she emphasized. “We have to find a way, bearing in mind the importance of respecting health and safety considerations, to … [keep] maintaining access to justice for all, and so that’s what we’re going to do — and in this case, via videoconference.”

The Supreme Court continues to render its judgments on leave to appeal applications and reserved appeals during the COVID-19 pandemic, but last March it closed its building to visitors (except for case-related matters) for health and safety reasons.

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 at 613-820-2794.