Mooting Rules
1. You are mooting in the Supreme Court of
Kingston, on appeal from the Court of Appeal for
2. The facts in the Court of Appeal judgments are
the facts for the moots. There should be sufficient facts for the moots but if
clarifications are required, please contact us. Sometimes the factual record
has deliberately been made scanty on some issues. Remember that the same set of
facts can sometimes be characterized in drastically different ways. By the way,
you should assume (unless specifically stated) that the facts stated by the
Court of Appeal are exactly those decided upon at trial.
3. Unless you can demonstrate special
circumstances (and do so early and well before submission of the factum),
please limit yourself to 15 authorities per side. For this purpose,
"authorities" means case law, articles and supplementary materials
(e.g. social science material). Statutory provisions are not
"authorities". You may adduce social science material, Royal
Commission Reports, etc. as evidence. (This differs from the usual practice on
appeals -- normally you cannot file evidence.)
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 edges" 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 reasonably balanced. This is, each side has strong arguments to make. Who do not
evaluate on the basis of who "wins" or "loses". Instead,
the submissions, written and oral, will be reviewed on their own merits,
bearing in mind point 6, below - there are no binding authorities. We prefer an
excellent attempt to argue a hard point to a poor attempt to argue a strong
point. We are rating the attempt you make and the quality of the analysis.
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 with
other recent cases where the Supreme Court was quite evenly split (e.g.
7. There are many issues in the problems. The aim
is to put forward your best case. Parties should discard the weaker arguments
and not feel that it is necessary to raise everything they see. You may let us
know in a brief memorandum (no more than 5 pages) which arguments you have
discarded and why.
8. We will meet with you upon delivery of the
Respondents' factums to decide, in consultation with you, what issues will be
argued orally. Last year, most felt it wise just to argue only certain issues
before the judge and this worked well. For example, in a case dealing with
three issues, government action, s. 2(b) and s. 1, we might decide, with your
input, that only the ss. 2(b) and 1 issues should be argued orally, or if the
s. 1 issues are rich enough, perhaps only the s. 1 issues.
9. Use the Precedents Book (to be distributed) to
help you with formatting your factums. Never hesitate to contact us to get
ideas or to "test drive" arguments or get some research tips.
10. The reasons for judgment do not reflect our
views. The reasons are rather terse and are quite flawed in many respects. In
addition, counsel in the courts below and the judges may have missed good
arguments or other relevant sections of the Charter or useful statutory
provisions. Do not feel constrained by what was argued by counsel in the courts
below.
11. Your factum should be formatted in
accordance with Rule 61.11(1) (excluding subparagraph (e)) and 61.12(3)
(excluding subparagraph (e)) of the
12. These are friendly moots. Help each other. We
will strongly encourage cooperation. Discuss the problems with each other and
with us. We are actually more willing to assist than you might normally expect.
These are tough problems and we're prepared to help. A special note to
inexperienced mooters: do not worry, there is no great emphasis on mooting
skills and we will give plenty of assistance. You will find this mooting
experience about as comfortable an experience as it can be.