Welcome to Advanced Constitutional Law! 

To contact David Stratas at any time, call (416) 643-6846 (direct line) (416) 318-9569 (24/7 cell) or e-mail dstratas@heenan.ca.



Overview

This is a seminar course designed to explore emerging problems in Canadian constitutional law from both a theoretical and practical standpoint. The course will be taught by David Stratas, a public law, regulatory and litigation lawyer in the Toronto office of the national law firm, Heenan Blaikie. The seminar will meet once a week, on Friday, from 11:30 a.m. to 2:15 p.m. in Room 400. (The Cunningham Swan Room.)



History of the Course

This is the fourteenth time the course has been offered, the first being in September-December, 1994.

As we go along, I welcome your comments and, if sufficient consensus develops, may adjust the course to examine topics of interest to the class. Occasionally, the class schedule will be adjusted to discuss new cases of interest. Quite aside from this, by all means feel free on an individual basis to raise issues of particular interest with us.



Diversity of Perspectives: Essential

A number of perspectives will be brought to bear as we examine cutting edge issues in constitutional law. I welcome any perspectives that you can bring to the course. Reaction to views put on the table by us and your colleagues is not just encouraged, it is mandatory.

Free speech is an important value in this class. There are no forbidden topics for discussion as long as they are relevant to the class. Controversial or uncontroversial views are welcome. Firmly or strongly expressed views are welcome as long as they are discussed in a respectful and polite manner, consistent with the educational objectives of this class. No one should feel that their views are unwelcome - as long as they are well-considered and as long as the speaker is prepared to defend them. If you disagree with someone's views (including the views of the instructor who will often be deliberately provocative), say so.

You will find that I have very different views from your views and your views will differ from those of your colleagues on many topics and I hope that this will help to stimulate discussion. More importantly, our differences may help to underscore a fundamental truth about constitutional law and law generally -- it is multi-dimensional and often dependent upon the perspective taken. Our differing approaches will be apparent throughout the course and this in itself may become a matter to be discussed. Challenge me, challenge each other, express your views based on the readings... I intend to do the same!



Format of the Seminar

Each seminar will begin with short presentations by two or more people based on a topic announced in the previous class. The presentations will last no more than 10 minutes per presenter. Time limits are strictly enforced. The presentations will be designed to highlight the key issues and stimulate discussion.

The seminars themselves will deal with issues arising out of the assigned topic but will quickly move from that topic to cover many other important issues.



Readings

This is first and foremost a seminar course. As you know, this means that a particular amount of emphasis must be placed on class participation. Given the nature of the discussion topics, getting people to participate is not a problem. However, the discussion is far richer and more satisfying for all if the readings are done. Seminar discussion is an informed discussion, not the sort of discussion one hears on an open-line radio show I urge you, in order to obtain the best possible class participation evaluation (see below) and in order to enhance everyone's learning experience, to do the readings and to reflect on them with care. I cannot emphasize this enough.

Discussion in the seminars is not limited just to the assigned readings. If you are aware of other cases or articles, by all means read them and bring them to our discussion. Your instructor will often refer to many other authorities during the classes - feel free to do the same.



Evaluation

Mooting Program or Approved Paper Topic = 60%

Class Participation = 40%

For reasons developed in the next section, we strongly encourage participation in the moot . The mooting experience in previous Advanced Constitutional Law seminars was for all a very rich experience and for some, I have been told, the highlight of their law school careers. Mooting teams, choice of problems and deadlines are to be completed in accordance with the announced schedule. Absent extraordinary circumstances, no extensions of time will be granted.

You may also write a 25-40 page paper on a topic to be approved in advance by me. Again, the deadlines must be met.

Again, I reiterate the importance of class participation and this will be a significant component of your final evaluation. I am looking for regular, high-quality participation in the seminars.

Attendance is always taken. Warning: frequent non-attendance may result in a "zero" grade for class participation, which means that a B+ grade for the mooting program or paper would be needed in order to achieve a bare pass.



Moots

All class members are welcome to attend the hearing of the moots .

The mooting problems raise "cutting edge" issues in constitutional law, both from a practical standpoint and a theoretical standpoint. They are deliberately challenging. Three moot problems will be circulated by the end of January and mooters will then form teams and choose a problem. Although all moots will raise a number of issues, one will be primarily a criminal law problem, another will mainly concern freedom of expression and a third will centrally involve equality rights.

You will find that the moots are quite practical in orientation, perhaps more practical than other moots in which you have participated.

Mooting alone or in teams of two, you will be required to draft a factum of no more than 30 pages in length. You will be given instruction in factum writing, actual precedents from which to work and ongoing supervision. The factum will count for the "Mooting Program" mark, with a strong performance in the oral presentation (primarily one's command of the subject-matter and ability to respond to questions) potentially pushing your overall grade one step higher. Oral argument will last between 30 and 60 minutes a team depending on the availability of the judge.

The following are excerpts from last year's "Mooting Guidelines" , which will give you a further indication of how the moots are run:

4. Keep the other side posted about your research. Talk through the problem with them. Exchange lists of authorities. Feel free to practice your oral submissions with them. The aim is not to "win" but to work in a collaborative way through these "cutting edge" problems in constitutional law. Of course, during the moot, the aim will be to put your submissions as persuasively as possible and to try to "win". Last year's judges did not declare a winner or release reasons, though some commented on the problems and the submissions made before them.)

5. The problems are quire evenly balanced. This is, each side has strong arguments to make. The apparent "winner" of the moot will not necessarily receive the best evaluation. Instead, the submissions, written and oral, will be reviewed on their own merits, bearing in mind point 6, below.

6. All cases are of persuasive effect only. No authorities are binding on the court. Majority reasons, reasons from higher courts, reasons which have been repeatedly applied in later cases and reasons in cases with facts similar to the facts of your problem will have more persuasive effect than minority reasons, reasons from lower courts, reasons which have never been applied to other cases and reasons in cases with facts that are quite different from the facts of your problem. Common sense suggests that authorities like Oakes, which are just persuasive and not binding for the purposes of this moot, will not be lightly discarded by the moot court. But for the purposes of this moot, you have much more leeway when dealing which other recent cases where the Supreme Court was quite evenly split (e.g., RJR-MacDonald v. Canada and B.(R.) v. Children's Aid Society) and where later cases have not adopted one set of reasons over another.

As you can see, the moots are intended to be friendly and uncompetitive: opposing lawyers are encouraged to assist each other in developing their arguments, I provide ample assistance and they try to reduce the workload by imposing strict page limits and limits on the number of authorities to be cited.

The facts of each problem have been designed to bring the positions of the rights claimant and the government into sharp relief and to trigger certain issues of note. In order to do this, it has been necessary to have some of the characters in the fact situations do things which are rather extreme. Needless to say, nothing should be taken as reflecting on those advocating their positions! I can discuss ways in which you, as an advocate, can handle unsavory facts involving your client or persons associated with your client.

Once all of the factums have been submitted, I will meet with each set of mooters and will discuss what issues ought to be dealt with orally. I do not expect you to argue all issues orally. The aim is to minimize your preparation for the oral part of the moot and to allow you to argue fully just a few of the more interesting issues.

Aside from the rules regarding collaboration and limits on the numbers of authorities to be cited, the moots are designed to be as realistic as possible. To this end, the instructors have been successful in attracting notable judges for the moots. In past years, McLachlin, Arbour and Rothstein JJ. of the Supreme Court of Canada, Feldman, Laskin, MacPherson, Rosenberg and Sharpe JJ.A. of the Ontario Court of Appeal and Campbell J. of the Ontario Superior Court of Justice have judged the moots.

As in past years, this year I am arranging for real judges -- and superb judges too - to preside over your moots. Three judges are already confirmed.

As in past years, a book of precedents will be circulated and discussed. I will distribute the book on a date to be announced.

The hearing of the moots is tentatively scheduled for some time during the later weeks of November. Specific dates and times will be confirmed shortly.



Webpages

All of the materials in the course are electronic and are accessible on or from these web pages. Explore the pages. All assigned readings for our classes are electronic and are accessible from these pages. You will also find plenty of useful resources for mooters and factum writers. Check the main page frequently to see whether the pages have been updated.