Moot Beit Din Writing for the Court

1. Moot Beit DinWriting for the Court Me Helena Lamed January 15 & 17, 2014

2. Aim of Writing about Law • Who are you, the writer? – representative • Who will read what you write – the judges, families, doctors, public • What are you trying to do: • To decide between competing claims • To persuade • To help • To redress a wrong • To change the law for the better

3. Listen to the Story • How do the messy things that people do, and their relationships with each other and the State, turn into legal problems? • How does a story become a legal problem? • What points of law do you think about as you hear the story?

7. When police looked in the bag: • Magic mushrooms and cannabis

8. Charged with Possession for the purposes of trafficking. Possible penality: Marijuana (schedule 2) - up to $1,000.00 and six months in jail if the amount is less than 30 grams (or one (1) gram of hash); If the amount of marijuana is more than 30 grams (or more than one (1) gram of hash) the maximum penalty is five (5) years less a day in prison, if the Crown proceeds by indictment. Maximums are less if the Crown proceeds by summary conviction.

9. Case reached Supreme Court of Canada

10. Imagine in your own words What is the position of A.M. (What does he want to achieve)? He does not want to be convicted. The only way he can be convicted is if the Crown can introduce the evidence (that the drugs were in the back pack) What is the position of the Crown? What does the Crown want? To introduce the evidence, in order to convict A.M.

11. The Issues: the question(s) the judges have to answer • Is the evidence of drugs in the backpack admissible? • Depends on whether it was ‘properly obtained’, if not, NO. What do we mean by ‘properly obtained’? Who says what is allowed in such a situation? Go to : THE LAW

12. Where do we find THE LAW • Sources of law: • Legislation – the “umbrella” law is the Constitution- law of laws • Decided cases • Texts by scholars and jurists • Custom, informal “norms”

13. Law Item #1 • S. 8 Everyone has the right to be secure against unreasonable search or seizure Canadian Charter of Rights and Freedoms (Limit to state intervention into private life) So, was the dog sniffing the backpack a search?

14. Key Concepts • Search • Unreasonable

15. If it was a search, and if the search unreasonable, the evidence found cannot be admitted into evidence. • Therefore, case against A.M. falls.

16. Law Item #2 “Search is a state invasion of a reasonable expectation of privacy”. “An individual has a reasonable expectation of privacy from state interference” How much privacy can students reasonably expect concerning their backpacks in a school setting?

17. Law Item #3 • To conduct a search, the police must have obtained a warrant, based on a reasonable belief (that evidence of an offence would be discovered). If the police do not have a warrant, and the search is minimally invasive of privacy, the search may be carried out on the basis of “reasonable suspicion”. [parag 91 judgment]

18. Law Item #4: • Cannot admit any evidence at a trial which was obtained in a way that brings the administration of justice into disrepute.

19. The Law • Research and read the law – meaning legislation or commentary. Note rules and explanations or justifications for the rules. • Note precedents (decided disputes between parties), if any. • Return to your facts – has your understanding of them changed in light of your new knowledge of the law?

20. Issues • Was the dog sniff a search? • If yes, was the search reasonable? • How much privacy could students reasonably expect concerning their backpacks in a school setting? • Is the standard of reasonable suspicion met? (What is this – look at circumstances in each case) • If the search was unreasonable – should the evidence be excluded?

21. Legal ReasoningThis means: • Analyzing the relevant facts in light of the law. • Applying the law to the relevant facts. • Deciding which legal rules address the situation, and explaining why these are relevant. • Comparing decided cases based on these rules to our facts and assessing how close the decided case comes to our situation – then predict outcome in our case

22. Supreme Court of Canada Most of the judges (Majority) said: • Dog sniff is a search – but not very invasive • A student’s backpack is like a bedroom and study–there is a reasonable expectation of privacy • No reasonable suspicion – no information, just speculation • Therefore exclude the evidence • No conviction

23. However, some judges disagreed • “No subjective expectation of privacy – in school, drugs a problem, zero tolerance, principal invited the police in, student not searched just backpack” • “It was a search, it was unreasonable, but minimal invasion of privacy, not offending administration of justice to admit evidence”

24. Now, you write a first draft, according to an outline • Overview (Introduction) • Describe the nature of the case and the issues – make your position clear from the outset • Facts section – relevant – what you will use in the reasoning • Issues , framed as questions. • Arguments – Answers to the questions from the position you are taking For each Argument– apply legal reasoning □Conclusion • List of Authorities

25. Leave enough time to EDIT your text • For Substance – use of the law, logic • For Grammar • For Spelling • Vary sentence length – less boring! • Let your text persuade – show your reader you are right with skillful interlocking of the fact and the law. • Don’t hammer your reader – don’t treat your reader as if she were a fool – avoid “this is clearly…”, “it should be obvious that..” “any five year old would realize that…”

26. You will find that Law is complex. It demands rigour and hard work. It also invites creativity, imagination, and originality. SO, HAVE FUN!!