Oral advocacy is under attack

Pandemic helped usher in reforms, but right of audience should not be sacrificed at altar of efficiency

Earl Cherniak

Audi alteram partem means “let the other side be heard as well.” It is a principle of natural, fundamental justice, the right of audience, that goes back at least to the ancient Greeks, and it is a feature of every modern legal system. It includes the right of parties or their lawyers to confront adverse witnesses, to fairly challenge evidence presented by the opposite party, to present their evidence and to have counsel to present their case.

It is the last feature that applies to appellate practice. It includes the right of counsel in oral argument to present the arguments for or against the lower court or tribunal decision and illustrate why the record and the decision, through its logic or its errors, justifies the ruling sought on appeal.

Oral advocacy in Canada has a long history, through some of the greatest advocates ever to face a bench. In Canada’s appellate courts, oral advocacy is significantly more extensive than in American appellate courts, where it either does not exist or is severely restricted. Oral advocacy in Canada at all levels is of greater importance than exist many civil law jurisdictions.

The current COVID-19 crisis has required our judicial system to rethink how it operates at all levels. The decisions made will have effects that will continue long after the crisis has passed. Many changes will be for the better. Using technology to hold hearings remotely, with participants able to see and hear each other, can have significant cost savings and still permit justice to be seen to be done.

In a recent teleconference, Ontario Superior Court of Justice Chief Justice Geoffrey Morawetz explained that the crisis has demonstrated the need for electronic hearings, by teleconference and video, but means must be found to permit media and public access to court hearings.

Depending on the length of the current crisis, there will be pressure, legitimate pressure, to conduct at least some appeals, both civil and criminal, remotely by some form of video conference.

In a recent case, Carleton Condominium Corporation 476 v. Wong, 2020 ONCA 244, Ontario Court of Appeal Justice Paciocco refused the adjournment of an appeal and ordered it to proceed on the written record alone. A teleconference would be scheduled only if the appeal panel determined that it wanted counsel to “respond to any questions that the panel may have.”

Paciocco felt that the appeal could be fairly adjudicated because the written record “presented the issues with clarity” and “the issues are, by their nature, capable of being adequately addressed in writing.” He accepted the respondent’s position that delay would be prejudicial.

I consider this to be an unfortunate decision. I hope it is an outlier and does not represent the view of the Ontario appellate bench. If prejudice requires the refusal of an adjournment, an oral hearing by video conference could, and should, be ordered.

While there may be some appeals that can be decided on the written record alone (and there certainly are some appeals to provincial appellate courts that have no hope of success), much is lost to the parties and the bench by the absence of the give-and-take of oral arguments, where counsel focus the argument on the key issues, present a “Condensed Book“ with the important extracts from the evidence and the documents that can be read to the court with the proper emphasis and address the court’s concerns in the questions raised. Time limits ensure an efficient hearing.

Counsel can and do influence the result of appeals by their oral advocacy. The parties and the public benefit by that advocacy. Add to that the principle of open courts, so that what occurs is available to public scrutiny, and the opportunity for the parties to see that their case was fully considered by an interested, prepared, unbiased, inquisitive and independent court, and the importance of oral advocacy in an open forum, preferably in person but at least by video conference, is obvious.

I finish where I began. The right of audience, like the rule of law, is a bedrock principle of our system of justice. It is compromised without trained counsel presenting their arguments on behalf of their clients before an independent tribunal. Oral advocacy is essential to ensure that disputes in Canada are seen to be decided openly and fairly, in accordance with the rule of law.

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