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UNIVERSITY OF TORONTO FACULTY OF LAW

DATE: Friday, December 5, 2014 TIME: 2:00 – 5:00 pm

ANNUAL EXAMINATIONS, 2014-15, DECEMBER 2014

Course: Evidence Law (0102) (LAW241H1F)

Examiner: Professor Malcolm Thorburn

NOTE: 1. This is a closed book exam, no outside materials will be allowed. 2. The exam is composed of eight questions, of differing value. Budget your time

accordingly. 3. Cell phones, pagers and other communication devices are prohibited in exams. Cell

phones are not permitted as a time keeping device, therefore should not be visible on the desk during an examination. Communication devices left on the desk during an exam may be removed by the invigilator.

4. If you are hand-writing the exam or, before you begin, ensure that you have written your

pseudoname, course name, and the number of the booklet on EACH examination booklet, as well as the name of the instructor on the first booklet. If you request any additional booklets during the examination, write the required information on the booklet at the time you receive it. No time will be permitted for this at the end of the examination.

5. During the examination, only one student at a time is permitted to leave the examination

room. No student may leave within fifteen minutes of the conclusion of the examination. 6. At the end of this examination, the invigilator will ask you to stop writing, count the total

number of booklets used, record this on the front of the first booklet, and insert all booklets into the first booklet. For students who are typing their examination, the invigilator will ask you to stop typing and exit Examsoft. You will then remain seated and quiet until all the examination papers/envelopes are collected. The invigilator(s) will let you know when you can leave the examination room.

7. Time limits will be strictly enforced. Students who continue to write or type after the

examination has ended will have their answer booklets/examination envelope collected separately and may be subject to a penalty.

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This exam is in two parts. The first part is a fact pattern with several questions worth different amounts. The second part is made up of a single short answer question on the principles of evidence law. Budget your time accordingly. Part I (80 points) On September 5, 2014 around 7:00 pm, while out for his regular evening run through the Rosedale Ravine in Toronto, Abel stumbles across a dead body. Horrified at his discovery, he immediately calls 911 to alert the police. The body is identified as Brown, a 23-year-old graduate of the Harvard Business School who had recently begun working at Scotiabank. The autopsy report suggests that Brown was killed by multiple stab wounds only hours before his body was discovered, likely around 4:00 am that same day. The next day, an elderly man named Charlie who lives in the neighbourhood, tells the police that he saw someone around 4:00 am on September 5 walking away from the place where the body was found, shaking and holding a bloody knife in his hands. Charlie’s description is quite precise and describes Dave almost perfectly. On the strength of Charlie’s description, the police call Dave in for a police line-up. When they arrive at Dave’s house, Constable Henry asks Dave to come down to the station but Constable Jim stays around the house and starts to look around. Jim notices Dave’s computer is on so he starts to look through Dave’s emails. He quickly finds one addressed to Brown on the night before Brown was killed. It reads “I’m going to get you, Brown, if it’s the last thing I ever do!” Jim prints out the message and brings it back to the station. Before Jim leaves, however, he encounters Dave’s mentally disabled adult son, Frank. Frank spontaneously blurts out a few strange comments that make Jim take notice. At one point, he says to Jim, “Dad wanted Brown dead.” When Officer Henry arrives at the station, he asks Dave to go into a police line-up for identification. Charlie picks Dave out instantly, saying, “That is him absolutely. He’s certainly the guy I saw the other day.” The police then arrest Dave, inform him of his right to counsel and provide him the opportunity to speak to a lawyer. Dave speaks to a lawyer who advises him of his s. 7 right to silence and tells him not to answer any police questions. Constable Gordon then ushers Dave into an interviewing room and turns on the video-recording equipment. Gordon begins the questioning but before he gets past the first few perfunctory questions, he receives a phone call from home, telling him that he has a domestic emergency to deal with. Gordon rushes off home and leaves Dave alone in the interview room at the station. After two and a half hours, the other officers notice that Dave has been sitting by himself in the interview room. Officer Henry walks in and says, “Jeez, Dave, you must be tired and hungry by now. Sorry about that. We had no idea what was going on. If you’ll just answer my questions, we can get you some good dinner and a place to sleep.” Within minutes, Dave acknowledges that he was at the scene of the murder on the morning of September 5. Officer Henry then says, “There, doesn’t that feel better already? Now let’s get you some dinner.” He then turns off the video recording equipment and gives Dave a hearty meal. After Dave has finished eating, Officer Henry turns the

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video recorder back on and tries to resume questioning. At that point, however, Dave insists on his right to silence and refuses to say another word about anything. Once word spreads in the new media about Dave’s arrest in the death of Brown (and his picture is prominently placed on television screens, websites and newspapers across Toronto), a number of people come forward suggesting that Dave had been behind the killing of a number of other victims, as well. Three other cases are linked to Dave and in all three of them, the victim was a 23-year-old male who had recently completed an MBA from the Harvard Business School and who was beginning to work at Scotiabank in Toronto. And in all three cases, the victim was found stabbed multiple times in the same spot in Rosedale Ravine. In two of those cases there are eyewitnesses who are willing to swear that they saw Dave walking out from the place where the body was found, with his hands covered in blood. Dave is charged with first degree murder in the death of Brown. Although the police are still investigating the other homicide allegations against Dave, formal charges have not yet been laid in connection with them. At Dave’s murder trial, the Crown calls Charlie to identify Dave as the person he saw coming out of the bushes on the morning of September 5th. When the Crown Attorney asks Charlie, “Is the person you saw coming out of the bushes on the morning of September 5 present in this courtroom?” Charlie replies, “Yes.” Pointing at Dave, he says, “It’s that guy!”

(1) Is Charlie’s earlier identification of Dave in the police line-up admissible? Why? (5 points)

The Crown seeks to adduce the threatening email from Dave to Brown. Although the Crown concedes that the email was found as the result of an unreasonable search and seizure contrary to section 8 of the Charter, they insist that it ought to be admitted under s. 24(2) all the same because excluding it would bring the administration of justice into disrepute.

(2) Should the threatening email be admitted under s. 24(2) of the Charter? (You should assume that it is otherwise admissible as a relevant party admission.) (15 points)

The Crown wants to call Frank, Dave’s mentally disabled son to testify against his father. Dave’s lawyer challenges Frank’s capacity to give evidence in court so the trial judge orders a voir dire on the issue of Frank’s capacity to testify. In the voir dire, the trial judge asks the following questions:

TJ: “Will you tell us the truth in your replies to questions here today?” Frank: “Sure, yeah.” TJ: “What do you mean when you say that?” Frank: “I don’t know.” TJ: “Do you know what it means when I tell you that you should solemnly affirm that you will tell us the truth today?” Frank: “Not really.” TJ: “Well, what happens to people who lie?” Frank: “Not much, really. Sometimes they get extra stuff they shouldn’t.”

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TJ: “But is it bad to tell a lie?” Frank: “Well, lies sometimes get you extra stuff…” TJ: “Will God punish liars?” Frank: “I don’t know what God is up to. Do you?” TJ: “Is it important to tell the truth?” Frank: “Umm…” TJ: “OK, if I asked you a question – ‘who is your dad?’ – what would you say?” Frank: “I’d say Dave is my dad, because he’s my dad.” TJ: “And if I asked you who your mum is?” Frank: “I’d say Susan is my mum, because she’s my mum.”

(3) Should Frank be permitted to give evidence according to s. 16(4) of the Canada Evidence Act? (This provision is reproduced at the end of this exam.) (10 points)

The Crown wants to adduce the video recording of Dave’s admission to being at the scene of the crime at the relevant time.

(4) Should the video be admitted? (15 points) The Crown wants to adduce – as similar fact evidence – the eyewitness testimony linking Dave to the murders of three other 23-year-old MBA graduates working at Scotiabank.

(5) Is the evidence of the other murders admissible “similar fact” evidence? (15 points)

Once the Crown completes its case in chief, Dave’s lawyers indicate that he will take the stand in his own defence. They then make a Corbett application to exclude Dave’s criminal record (in anticipation of the Crown’s attempt to cross-examine Dave on this as permitted by s. 12 of the Canada Evidence Act). Dave was convicted of fraud in 2000, he was convicted of assault causing bodily harm in 2010 and he was convicted of various drug possession offences in 1997, 1998 and 1999.

(6) How should the trial judge rule on the Corbett application? (10 points) Under cross-examination, Dave describes his relationship to the deceased. “Listen,” he says, “I didn’t like Brown: I’ll be the first to admit that. But just because you don’t like a guy doesn’t mean you go and try to kill him. You’d have to be a crazy maniac to go out and try to kill people just because you’re mad at them. And I’m no maniac.” And under further questioning, Dave says, “You think I’m a crazy murderer? That’s what you want people to believe? What kind of a guy do you think I am? Hey, man, you got things all wrong. I bought Brown a present for his birthday this year – and a nice one, too. I personally bought him a case of the finest champagne.”

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The Crown seeks to introduce into evidence records from the Ontario liquor store monopoly (the “LCBO”) indicating that his only purchase in the past year was one case of the cheapest champagne they sell.

(7) Are the liquor store receipts admissible evidence for the Crown? Explain. (10 points)

Part II (20 points) (8) In general, prior consistent statements are not admissible evidence. But there are a number of exceptions to this general rule recognised in Canadian law (prior identification, rebutting recent fabrication, narrative, and certain spontaneous exculpatory statements of the accused). What is the rationale for the general exclusionary rule? What is the rationale for each exception? Given these rationales, should Canadian law be altered to admit more or fewer types of prior consistent statements? Explain. *** THE END *** Note: Canada Evidence Act – next page

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Canada Evidence Act (R.S.C., 1985, c. C-5) Witness whose capacity is in question 16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine

(a) whether the person understands the nature of an oath or a solemn affirmation; and (b) whether the person is able to communicate the evidence.

(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation. (3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth. (4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify. (5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.