ULTRAVIRES.CA
October 31, 2024
VOL. 26 ISS. 2
Ultra Vires
THE INDEPENDENT STUDENT NEWSPAPER OF THE UNIVERSITY OF TORONTO FACULTY OF LAW
Grand Moot 2024 Recap Mooters expertly tackled federal invocation of the notwithstanding clause in the criminal context GLENN HOWARD (2L) AND GRACE XU (2L)
VIDIT DESAI (3L), RIYA THOMAS (3L), DEAN JUTTA BRUNNÉE, THE HON. JUSTICE SUZANNE CÔTÉ, EMILY CHU (3L), THE HON. CHIEF JUSTICE MICHAEL TULLOCH, BRYNNE DALMAO (3L), THE HON. JUSTICE IRA PARGHI, JOSHUA SCHWARTZ (3L), AND NAVYA SHETH (2L). COURTESY OF THE FACULTY OF LAW.
On Tuesday, October 1 before a packed house in the Rosie Silberman Abella Moot Court Room, four Faculty of Law students addressed issues related to the federal government's invocation of the notwithstanding clause in a criminal statute before a panel of esteemed jurists. This year's Grand Mooters were Joshua Schwartz (3L) and Navya Sheth (2L) for the appellant, and Emily Chu (3L) and Brynne Dalmao (3L) for the respondent. The members of the panel to hear the appeal were the Honourable Justice Suzanne Côté of the Supreme Court of Canada, the Honourable Chief Justice Michael Tulloch of the Court of Appeal for Ontario, and the Honourable Justice Ira Parghi of the Ontario Superior Court of Justice. For just under two hours, the audience was brought into the fictional country of Flavelle, where, in response to "rampant" gun violence, the Parliament of Flavelle enacted the Firearms Safety and Accountability Act. The Act made it an offence to knowingly possess an unauthorized firearm in a vehicle. The penalty for violating the Act was a 30-day driver's licence suspension and a prohibition from driving in any other province where the offender does not hold a license for a minimum of three to four years. Crucially, for the first time in Flavellian history, a criminal statute was invoked "notwithstanding ss. 7 and 12 of the Flavellian
Charter of Rights and Freedoms; the rights pertaining to life and the security of the person, the right not to be subject to cruel and unusual punishment, and all other rights therein." Caught by the Act was the appellant, David Thomas, an owner-operator of a small trucking business. Thomas had mistakenly, but knowingly, drove away from his friend's house with her hunting rifle in his pickup truck. Thomas was subsequently arrested and prohibited from driving in another province, which prevented him from driving in the neighbouring province of Bloor. Access to Bloor was important to his business and personal life. Thomas challenged the constitutionality of the Act on the grounds that (1) Flavelle's Parliament did not properly invoke the notwithstanding clause; (2) even if the clause was properly invoked, it violated his section 7 right to liberty and was not justified under section 1; (3) even if the clause was properly invoked, it violated his section 6 right to mobility and was not justified under section 1 of the Charter. The Superior Court found in his favour before the Court of Appeal reversed the decision. The case, based on a problem skilfully written by Moot Court Chief Justices Riya Thomas (3L) and Vidit Desai (3L), then came before the Supreme Court of Flavelle. Joshua Schwartz began the appellant's submissions
by arguing that "the Federal Government omitted the right to liberty in its invocation of the notwithstanding clause—this court, respectfully, cannot put it back in." He received an immediate question from Justice Côté about what meaning should be given to the phrase "and all other rights therein." "That's the question I'm dreading," Schwartz said. He submitted that the phrase "refers to the principles of fundamental justice that serve to protect the life and security of a person. Parliament enumerated in the invocation, thereby leaving liberty excluded, even from that residual clause." Schwartz went on to argue that the notwithstanding clause must be construed strictly in the criminal context. Justice Tulloch asked whether there was any precedent to support his strict construction of the notwithstanding clause. Schwartz responded, "I must admit, it's a novel argument, but one I worked very hard to come up with..." which drew laughter from the crowd. Schwartz finished his submissions by arguing that the prohibition on driving engaged Thomas' liberty interest, and that the law did not accord with the principles of fundamental justice because it was overbroad. Next, Navya Sheth argued that the interprovincial driving ban unjustifiably infringed Thomas' section 6(1) right to remain in Flavelle and his section 6(2)(b) right to pursue the gaining of a livelihood in any province. Neither of these infringements, Sheth argued, were justified under section 1. Sheth began by submitting that the right to "remain in" Flavelle under section 6 encompasses the right to move between provinces. She argued the court should protect the functional exercise of that right, for which Thomas requires the right to drive. Justice Côté asked whether there was an option other than driving available to Thomas to move between provinces. Sheth responded that it was not reasonable for Thomas to take a train or airplane, as he only lived 25 minutes from the border. "What about an Uber?" Justice Côté asked. Sheth suggested that given the long wait times for Uber, this too was an impractical alternative. After submitting that the Act breached Thomas' right to pursue a livelihood in another province, Sheth concluded that the Act was not justified under the Oakes test, before requesting the appeal to be allowed and the law to be found unconstitutional. Brynne Dalmao led the respondents by submitting that (1) the notwithstanding clause was properly invoked and (2) Thomas’ liberty rights were not engaged or violated under the impugned provisions. Dalmao began by stating that the enumeration of section 7 in the Act was sufficient and that “nothing more was required.” Justice Côté quickly jumped in, noting that Parliament had indeed done more with the enumeration. Dalmao promptly explained that although Parliament provided more particulars than it was obliged to, it had nonetheless met the essential requirements. She argued that greater deference should be given to Parliament, as the use of the notwithstanding clause aligned with Parliament’s objective to enforce stricter
gun laws within the ambit of recognized democratic values, thereby limiting the court's role. Dalmao went on to elaborate that although the appellant’s concerns were limited to fundamental matters that are central to a person's dignity, they did not and should not extend to privileges like driving and possessing a driver’s license. Justice Côté introduced a hypothetical that challenged the respondent’s interpretation of liberty, suggesting that an individual in a rural region would be stripped of liberty if driving was their primary or only means of transportation. Dalmao’s response provided some appreciable alternatives and acknowledged her friend’s Uber suggestion. Emily Chu concluded for the respondent, submitting that the Act did not limit Thomas’ section 6 mobility rights even under an expansive reading of the legislation. In the alternative, she argued that the infringement was justified under section 1 of the Charter. Chu purported that the Act was designed to protect the “pure mobility right of citizens to enter, leave, and remain in the federal state and country.” To that, Justice Parghi asked whether Chu was suggesting that there was no right to move about the country freely. Justice Parghi jokingly asked, “I can't get on a plane tonight to Saskatoon?” Despite joining in on the banter, Chu stood firm on her position that section 6 more broadly protects interprovincial mobility rather than pure mobility. Chu proceeded to turn to the authorities that the appellant relied on and expertly distinguished the facts of each case from the issue at hand to illustrate that even if the right to pure mobility was recognized, Thomas’ rights were not violated on the basis of residency. Chu’s submission was later praised by Justice Côté herself. According to Chu, the effects of the prohibitions could only be seen as an inconvenience to Thomas’s role as an operator of a trucking business and not a liberty-restricting prohibition. Chu then closed her submissions with a brief but cogent overview of the respondent’s section 1 Oakes analysis. After the submissions finished, the audience erupted into applause. The panel then complimented the Grand Mooters. "You were extremely well-prepared," Justice Côté said, "better than some of the lawyers that appear before the Supreme Court of Canada." Côté added that she was positively "flabbergasted" with the outstanding submissions of the Mooters, including their "very well-written" factums. She ended by encouraging all of the Mooters to apply for clerkships at the Supreme Court. Justice Tulloch and Justice Parghi praised the Mooters for showing an incredible level of sophistication for students. Both Justices encouraged the Mooters to their respective courts. The final decision was swift and clear: the Grand Moot was a success on all counts. The event would not have been possible without the Grand Moot Bench Clerks: Mathew Farrell (2L), Akash Jain (2L JD/ MPP), Katrina Sellinger (2L), Audrey Wu (2L), and Georgia Gardner (2L). As in previous years, the event benefited greatly from the sponsorship of the law firm McCarthy Tétrault.
ALSO IN THIS ISSUE ICONS AT THE LAW SCHOOL: JUSTICE THORBURN AND SAKO
NEW YORK 2L SUMMER & TORONTO ARTICLING RESULTS
LAST-MINUTE HALLOWEEN COSTUME IDEAS
PAGES 12 & 14
PAGES 5 & 6
PAGE 21