This is a fun course with equal emphasis on both oral and written advocacy. Debate, questions, brainstorming and discourse are encouraged.
Students will be involved in almost all of the steps of a constitutional case, from the initial claim, to cross-examinations, to arguing a preliminary motion and culminating in a final factum and moot before a panel of judges with students receiving both oral and written feedback throughout.
We will focus on a substantive area of constitutional law (ex., freedom of expression, equality or division of powers) as well as questions of procedure, evidence (adjudicative and legislative, privilege) and judicial notice. A key focus is on the importance of remedies as an initial consideration, not as an afterthought.
The seminar also involves working through problems in small groups and presenting positions in class.
Seminar topics are designed to be in service of the final moot and factum. Topics typically include: the role of the courts in constitutional litigation; commencing a constitutional case; drafting pleadings; government action under s.32 of the Charter; standing; selecting the appropriate court and procedure; mootness, interventions; role of the Attorney General; evidence in constitutional cases, proving constitutional facts, the role of experts and drafting effective affidavits, examination of government witnesses, presentation and assessment of social science data in the adversarial system; drafting constitutional arguments and presenting them effectively; oral advocacy; the importance of remedies for constitutional infringements; litigation strategies for public interest groups and case studies.
Method of Evaluation:
Students do not receive a grade for class participation and attendance as this is expected to be the norm. However, students can lose grades for not attending at least 9 of the 13 classes.
Early in the course students must prepare a factum or similar form of written argument on a motion on a procedural issue (graded) and a short oral argument in support of that motion (not graded but oral feedback given).
This first motion factum is worth 20% of the final grade. The factum will focus on formal requirements (citations in accordance with the McGill Guide, the Rules of Civil Procedure and the preparation of a schedule of authorities and of legislation). Substantive feedback will also be provided on the persuasiveness of the argument, reliance on relevant case law, clarity and coherence. Feedback on the short oral argument will focus on the opening argument and roadmap, reliance on precedent and the use of examples,
The next 50% is for the final factum for the moot on the constitutional case. The oral advocacy at the final moot is graded for the final 30% of the grade. For the moot portion the students will act as counsel for an applicant, government respondent or intervenor and present oral argument before a panel of judges or practitioners in a court setting.
The course does meet the Praxicum requirement. Students are required to provide a reflection after completing both the initial and final assignments.