An abridged version of this article appeared in The Lawyers Weekly, October 17, 2003.

Preparation and Composure Shine at Grand Moot

By Ben Perrin

"This is a showcase of a classic legal art," said Acting Dean Brian Langille to kick-off the 2003 Grand Moot. McCarthy Tétrault sponsored the annual event on September 23rd which was organized by the Moot Court Committee headed up by Co-Chief Justices Sana Halwani and Alex van Kralingen.

Acting Dean Brian Langille with Justices Lax, Arbour and Sharpe
Acting Dean of Law Brian Langille (left) with Justices Joan Lax, Louise Arbour and Robert Sharpe

Mooters Burkhardt, Jones, Perkins and Morris
Mooters Keith Burkhardt (left), Sarah Perkins, Brock Jones and Ryan Morris

Mooter Keith Burkhardt appears before the judges
Mooter Keith Burkhardt appears before the judges

The appellate level trial centred on two key issues. First, whether the Minister of Corrections owed a fiduciary duty to a prisoner who was sexually assaulted allegedly due to his being forced to share a cell with another inmate. Second, whether a provision prohibiting a clean needle exchange program in prisons was a violation of Section 7 of the Charter.

Keith Burkhardt and Brock Jones appeared on behalf of the appellant, the Minister of Corrections. Sarah Perkins appeared on behalf of the respondent, an inmate named Thomas Trailblazer, and Ryan Morris appeared as intervener for an organization advocating clean needle exchange programs.

"Every government decision will have a negative impact on some part of the population," submitted Burkhardt who stated that the remedy for poor government decisions is to be found in the electoral process and not in the courts in these instances. Burkhardt argued that the expansion of the government's fiduciary duties to this new class of persons, inmates, would be a "slippery slope".

"There is no consensus in the medical community that these [needle exchange] programs work," said Jones. In several light-hearted moments, Jones drew laughter from the audience through a series of arguments in the alternative when he introducing each by saying "But if that doesn't work, we have another argument."

Madam Justice Joan Lax intervened during Jones' submissions to question him on a source relied on in the respondent's factum. "Are you relying on an article from the Kingston Whig-Standard for that submission?" asked Justice Lax, drawing laughter from the standing-room only audience topping two hundred people. Without missing a beat, Jones replied "We'll have to check that with our articling student."

"Trailblazer was totally dependent on the government," said Perkins in arguing that the government owed the inmate a fiduciary duty. Perkins argued that based on analogous situations where the courts have recognized fiduciary relationships, the facts of this case called for a similar response. Perkins, like the other mooters, faced an interventionist bench that raised pointed questions.

"You're asking us judges how to run the prisons," said Mr. Justice Robert Sharpe. Discussing other areas where fiduciary duties could appear based on Perkins' reasoning, Madam Justice Louise Arbour asked: "Are sick people in a fiduciary relationship towards government?"

Morris argued that two principles of fundamental justice were impugned by the government's prohibition on needle exchanges in prisons: the harm principle and so-called "manifest unfairness". Standing his ground, Morris tried to defend his submissions on the principles of fundamental justice from attack by Justice Arbour.

"It is extremely problematic to identify such a broad-based principle as one of fundamental justice," said Justice Arbour.

As is customary, the panel of three judges reserved judgment and did not render a decision. However, they did have plenty to say after the event about the performance of the mooters.

"The composure that the mooters demonstrated was impressive," said Justice Lax.

"Mooting is not just about advocacy skills, but also about learning the law," said Justice Sharpe, "What struck me was the level of preparation of the mooters which is absolutely essential."

Ben Perrin is a student at the University of Toronto Faculty of Law.