Exceptional advocacy at U of T Law’s annual ceremonial moot
Every fall, the Faculty of Law hosts its annual Grand Moot, sponsored by McCarthy Tétrault. This annual moot commemorates the school’s generations of commitment towards strong legal advocacy. The participants are amongst the Faculty’s top mooters, the legal issues reflect emerging trends in our jurisprudence, and the presiding judges are—pun intended—supreme.
This year’s appeal concerned the constitutionality of certain police surveillance methods, exploring the extent to which condominium residents possess a reasonable expectation of privacy in so-called common areas. The crucial task of balancing individual liberties with public safety was undertaken by some of the brightest minds at the Faculty: appellants Mackenzie Faulkner (2L) and Madeleine Andrew-Gee (3L), and respondents Militza Boljevic (3L) and Ema Ibrakovic (3L).
The 2021 Grand Moot was also exceptional in its panel of judges: recently retired Supreme Court of Canada (SCC) Justice Rosalie Silberman Abella, Justice Andromache Karakatsanis, and recently appointed Justice Mahmud Jamal. Not only was this the first time that these three justices collectively heard a case; it was the last time that Justice Karakatsanis and Justice Abella presided together after a decade-long collaboration on the Supreme Court, and the first case which Justice Jamal would adjudicate since his appointment. We are extremely honoured that they chose the 2021 Grand Moot as the place to commemorate these milestones.
The appeal returns us to the fictional province of Falconer, located in the common law country of Flavelle, where the jurisprudence and Constitution is identical to Canada. The facts leading up to the appeal involve a police evidence-gathering operation against Mr. Matthew Zhaski in an attempted murder. The police obtained this evidence without a warrant, yet with the consent of the Chair of the property management company of the condominium in which Mr. Zhaski lived. They did this by remotely accessing and controlling three cameras in a so-called common area. At the Supreme Court of Flavelle, Mr. Zhazki argued that the manner in which the camera evidence was obtained violated his section 8 Charter rights, and warranted exclusion pursuant to section 24(2) of the Charter.
Representing the Crown, the appellants brought forward submissions that emphasized a hard distinction between condominium areas that can be accessed by the public, and the areas which are exclusive to an individual resident. Faulkner advocated for a principled approach that defines a public place as inclusive of areas where access is limited to a certain portion of the public, such as areas restricted by condo fob access. The fact that other residents besides the individual in question may access the common areas of a condo building bolstered the appellant’s position that Mr. Zhaski’s reasonable expectation of privacy was significantly diminished, especially when compared to his expectation of privacy in his own unit. Andrew-Gee brought this position home, submitting that the ‘common’ nature of such areas diminishes the impact of the state, which factored into her section 24(2) analysis.
The respondents argued for a subjective measure to evaluate an individual’s reasonable expectation of privacy. Boljevic’s submissions highlighted the relevance of a subjective knowledge of privacy, moving to a distinction between common and private areas that is oriented on human nature. Submitting that Mr. Zhaski was neither aware nor informed in his lease agreement that surveillance cameras would record audio in addition to video (a fairly uncommon occurrence), Boljevic maintained that Mr. Zhaski’s reasonable expectation of privacy was founded on an incorrect perception of condo surveillance. This would further negate the constitutionality of a warrantless search. Ibrakovic spearheaded a public policy submission; if police officers are able to engage in searches they know to be intrusive, without a warrant, the administration of justice would be brought into disrepute as state surveillance would be unrestrained.
I have been told that mooting is, essentially, having a conversation. Appellants and respondents prepare facta which summarize their submissions, but are ultimately required to be flexible to questions that judges may pose. The most powerful advocates in moot court, as well as the SCC, are the ones who are comfortable going off script and engaging in a little banter with the judges. The appellants and respondents of this year’s Grand Moot did exactly this, and their unparalleled comfort levels would, as Justice Jamal commented, “make them feel at home in any court in the country.”
The banter between mooters and judges this year was particularly amusing. The entire Moot Court Room shared a laugh when Justice Abella referenced her dissents against cases cited by both the appellants and respondents. Or when Justice Karakatsanis, after a long period of back and forth with Faulkner, fondly remarked, “I love a good argument.” It was truly inspiring to see these amazing jurists—whom we read about every day in our casebooks—engaged so willingly, and with so much enjoyment as they challenged our students to think critically and develop their already top-notch advocacy skills. Indeed, the Faculty’s unparalleled legacy of mentorship is manifested through everyone who comes through our doors, be it professors, upper years—oh, and by the way, also Supreme Court justices.
All mooters of this year’s Grand Moot had a rigorous command of case law, and their confidence and dedication will spearhead their excellent advocacy in the many years to come. Congratulations to Mackenzie, Madeleine, Militza, and Ema—you made us extremely proud as a Faculty, as friends, and as a legal community. You can watch a recording of the 2021 Grand Moot on the Faculty’s website.
