Eugene Meehan of Supreme Advocacy LLP on the SCC and how appellate litigation has changed

He says the top court's move to have intervenors appear virtually highlights an inherent conflict

Eugene Meehan of Supreme Advocacy LLP on the SCC and how appellate litigation has changed
Eugene Meehan

Canadian Lawyer spoke with Eugene Meehan* of Supreme Advocacy LLP in Ottawa about trends at his firm, the Supreme Court of Canada and his role in helping to select the Top 25 Most Influential Lawyers as a Canadian Lawyer Editorial Board member. Nominations are now open for the 2023 Top 25 Most Influential Lawyers list.

Small firms experienced massive disruption during the pandemic years—how has it affected your firm?

As an appellate litigation boutique, the most significant impact of the pandemic was the closure of the courts and the shift to doing everything remotely. Our firm already had the tools for full remote access, but it was still a seismic shift.

The hardest thing by far was the loss of in-person interactions at the office. However, our staff have said that moving to hybrid work improved their productivity significantly. They can quickly jump in on a matter to help a colleague when we are swamped. The pandemic years allowed our office to reflect on our practice's structure and work-life dynamics and look at systems to get more done more efficiently.

What have been the significant developments at your firm in the last 12 months?

Our office accepts that a hybrid work model is here to stay. We spend less time thinking about when we’ll return and instead focus on developing a work model that combines the best of working remotely and on-site.

This approach has yet to affect our clients because we were dealing with clients remotely almost exclusively. Clients are more likely to be working remotely now, which means we need the technological tools, but we have them in place.

What has been the most significant case you have worked on recently?

Last December, my colleague Thomas Slade (and outside counsel Allison Pejovic) were in the Manitoba Court of Appeal arguing an appeal on behalf of several churches and pastors concerning pandemic restrictions. There have been a number of these cases in Canada, but this one was particularly interesting given the complete closure of places of worship. Sites with similar risk factors, like university classrooms, could stay open. No constitutional consideration was given to freedom of religion being a foundational Charter right. The decision is still in reserve.

It's a winnable case and important not just for COVID restrictions but also for freedom of religion from a practical perspective, whether and when that should be respected and to what extent it should be.

How has working with the SCC changed over the pandemic?

For applications for leave to appeal or appeals, our office already worked remotely with lawyers across Canada. So, it has mostly stayed the same in terms of file preparation and file management. The most significant change was at the SCC.

There was a shift to primarily virtual, and now we have gone back to not quite the prior status quo. The transition to virtual may remain the way for interveners, with main parties having the option to choose. The SCC is now used to virtual appearances, which may be there for the long term.

For intervenors, it is significant because there have been some recent cases where there have been as many as 29 intervenors. So, from the intervenors’ perspective, it may be less helpful because most lawyers like to be in court to have eye contact.

Do you think it is more challenging to advocate for your clients when it is virtual?

I'm old school, but some lawyers are very comfortable arguing virtually. The physical presence, body language, inflection and watching the judge’s reactions make a difference. The dialogue is important. It's like having a telephone conversation with somebody versus an actual in-person conversation. There are tactile, emotional and intellectual differences.

But I accept that not everybody is of that view.

What other trends and developments in your SCC practice have you seen?

We have seen the Supreme Court of Canada granting slightly fewer leaves to appeal in 2022 and deciding more cases from the bench. Decisions from the bench have primarily been in as-of-right criminal appeals, but we have seen them even where the panel is not unanimous. The SCC continues to be selective in the cases it wants to hear and efficiently handles its docket regarding the average time it takes to resolve appeals.

Recently in R. v. McGregor, 2023 SCC 4, a majority of the court was critical of interveners overstepping their roles. There is an inherent conflict between encouraging the participation of many interveners and trying to limit their roles. Gaining insight from different perspectives is an important aspect of interventions. In the federal v. provincial natural resources case this week, there were a near-record 29 interveners.

Do you think the SCC is sufficiently transparent?

For a judicial institution, the Supreme Court is appropriately transparent. They release statistics, hold annual press briefings, and provide a regular flow of information about their operations through multiple channels. Compared to other public institutions, some may see the SCC as a bit reticent of what is expected today regarding full transparency. However, the judiciary has one hand tied behind its back:  judges have the obligation of restraint, and public statements are generally frowned upon; any information released regarding the court or a judge could be seen to interfere with judicial independence.

The chief justice has made great strides in transparency and getting the court outside Ottawa. News releases about judges may remain few, but the SCC may be more proactive in circumstances affecting its core operations.

What about the recent Canadian Judicial Council investigation of Justice Russell Brown, where the SCC did not disclose that he was on leave until a journalist asked about it?

It's a fair question for the media to ask for increased transparency.

From a lawyer's perspective, though, I see it differently. The problem for the judiciary, not just the SCC, but the entire judiciary, is that there is an obligation of restraint. Public statements are generally frowned upon, and any information released regarding the court, or a judge, could be seen to interfere with judicial independence.

There is certainly a wish and a desire for increased openness from a legal perspective. But there's a hesitancy there in terms of what the consequences of that may be.

Why do you feel it is important to celebrate lawyers as we do in the Top 25 list?

There are many lawyers doing good. But their work is often spread out over a long period and can be easily overlooked. Celebrating lawyers who make a difference provides recognition for many who may fly under the radar. These awards also serve as encouragement for the rest of us and a reminder of the power of small wins.

*Answers have been edited for length and clarity.

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