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CRIMINAL PROCEDURE AND EVIDENCE, CRIM 330

MID-TERM EXAMINATION

Instructor - Pete Smith


TA – Ben Woolsey

Instructions:

1. You have 1 hour and 50 minutes to complete this exam.

2. You are entitled to rely on a Canadian Criminal Code (unmarked, not


annotated) and a single, letter-sized sheet of paper, marked on one
side only.

3. Use the “bubble sheet” (provided) to complete the multiple-choice


questions in pencil and use the exam booklet(s) (provided) to
complete the fact pattern questions in pen.

4. Please double-space your written answers, and write on both sides of


the paper in your exam booklet(s). NOTE: “Shotgun” answers, that
contain too much off-topic information, will not receive full marks,
even if all the right information is also provided.
Part A: Multiple Choice – Suggested time – 40 minutes, 40 marks.

1. A JP might allow a private information to be sworn and issue a


summons if they are satisfied:

a) The Crown has advanced a case to meet;


b) The Crown has had a chance to participate in a pre-inquiry;
c) The Crown has advanced credible evidence on every essential
element of the offense;
d) Two of the above;
e) All of the above.

2. A preliminary inquiry can rule on:

a) The admissibility of evidence;


b) Credibility of witnesses;
c) Guilt or innocence of an accused;
d) Weight to attach to perpetuated evidence;
e) None of the above.

3. If there is an exclusion order granted during jury selection, for-


cause challenges are to be decided by:

a) The same two jurors, who will ultimately be dismissed as jury


members once 12 other jurors are selected;
b) Two jurors, always rotating as new jury members are selected;
c) The same two jurors, who ultimately become the last 2 jurors
selected;
d) The judge as trier of fact;
e) The judge as trier of law.

4. During the jury selection process, there is a presumption at law


that:

a) The jury pool was properly generated;


b) Juries can set aside any prejudices they have;
c) Pre-trial publicity cannot result in a stay;
d) All of the above;
e) Two of the above.
5. Peremptory challenges require the challenging party to show
the judge:

a) Reason to suppose the jury pool may contain people who are
prejudiced and whose prejudice might not be capable of being set
aside with proper instructions;
b) Reason to suppose the jury pool may contain people who are
prejudiced only, with the behavior component to be decided by the
trier of fact;
c) Reason to suppose there are persons whose prejudice might not
be capable of being set aside with proper instructions only, with
the attitudinal component to be decided by the trier of fact ;
d) Both attitudinal and behavioral grounds for concern, but with a 2
jury panel making the ultimate decision;
e) None of the above.

6. Which of the following statements best describes the law


surrounding breath samples taken at roadside by police:

a) As the first request for a sample is not usable as evidence, it does


not violate an individuals Charter rights;
b) The current procedure has been found to violate an individuals
Charter rights, but is saved as a “reasonable limit” on those rights;
c) Once “detained”, an individual must immediately be given the
opportunity to retain and instruct counsel;
d) None of the above statements is accurate;
e) All of the above statements are accurate.

7. The main difference between an appearance notice and a


summons is:

a) The amount of detail required in the description of the events;


b) One might have a requirement that the accused appear at a police
station under the Identifications of Criminal Act;
c) The timing of when the document is issued to the accused;
d) Who swears the information to the JP;
e) The penalties for failing to appear.
8. Which of the following statements is true:

a) A section 469 offence is always tried before a judge and jury;


b) A section 553 offence will always be tried in provincial court;
c) For crimes punishable by more than 5 years, an accused has a right
to be tried by judge and jury;
d) All of the above statements are true;
e) Two of the above statements are true.

9. Which of the following is not a proper justification for a police


officer to continue holding a person arrested for assault (s.266)?

a) The need to establish a prima facie case;


b) The need to establish identification;
c) The need to ensure public safety;
d) There are reasonable grounds to believe the person will not
appear in court as requested;
e) Two of the above.

10. Which of the following is not a proper justification for a JP to


continue holding a person arrested for robbery (s.344):

a) To ensure that person’s attendance in court;


b) To establish identification;
c) The need to ensure public safety;
d) To maintain public confidence in the administration of justice;
e) Two of the above.

11. Whether a police officer requires subjective or objective


grounds of belief to effect an arrest is an example of a question of:

a) Fact;
b) Law;
c) Mixed fact and law;
d) Statute interpretation;
e) None of the above.
12. Biff has just been convicted of robbery. Which of the following
can Biff appeal as of right:

a) The sentence;
b) The fact that the jury placed too much weight on the testimony of a
“nearly blind” eye witness;
c) The judge gave the jury the wrong definition of “beyond a
reasonable doubt” in his instructions;
d) Two of the above;
e) All of the above.

13. At the end of Biff’s preliminary inquiry, the judge concluded


that, despite the fact that there was not evidence on every essential
element of the offense, there was certainly enough evidence to
proceed to trial. This result:

a) Is ultra vires the judge’s power;


b) Is intra vires the judge’s power;
c) Cannot be appealed;
d) Can be appealed;
e) Two of the above.

14. Biff’s appeal (from trial) to the BCCA was a success. On a three-
judge panel, two found that there were sufficient grounds to allow the
appeal, which was on a question of law, and order a new trial. Under
these circumstances, the Crown:

a) Can appeal to the Supreme Court of Canada with leave;


b) Can appeal to the Supreme Court of Canada as of right;
c) Has no right to appeal since an new trial has been ordered;
d) Can appeal but only once the new trial is resolved;
e) None of the above.

15. At Biff’s original sentencing hearing, the Crown sought to


introduce two new facts, not alleged during the trial itself, to support
their contention for “significant prison time”. The two facts asserted
were that he was currently a member of a criminal organization, and
that he was reported by his former social worker to be a poor
candidate for rehabilitation. To be used in sentencing, these facts
must be:
a) Proven beyond a reasonable doubt;
b) Proven on a balance of probabilities;
c) Proven beyond a reasonable doubt and on a balance of
probabilities, respectively;
d) Proven on a balance of probabilities, and beyond a reasonable
doubt, respectively;
e) Supported by objective evidence.

16. Which of the following statements about an absolute or


conditional discharge is not true:

a) They can result in no criminal record for the accused;


b) A permanent record of the discharge is kept by the court;
c) If the conditions of a discharge are breached, it can result in an
apparent “double jeopardy” situation where the accused might be
re-tried for the original offense again;
d) All of the above are accurate;
e) Two of the above are not accurate.

17. If a police officer finds someone they believe are committing an


offense and arrests them, but at trial the court finds the offense in
question was never committed, the police officer:

a) Still made a lawful arrest


b) Must have made an unlawful arrest;
c) Made a lawful arrest so long as it was subjectively reasonable to
conclude a crime was taking place;
d) Made a lawful arrest so long as it would have been apparent to a
reasonable person that a crime was taking place;
e) Made an unlawful arrest but the arrest is saved as a reasonable
limit but section 1 of the Charter.

18. During the jury selection process, a potential juror might be


excused:

a) For reasons of hardship by the sheriff;


b) For reasons of hardship by the judge;
c) As a result of a “for-cause” challenge by the judge;
d) All of the above;
e) Two of the above.
19. The Ward case demonstrates that:

a) Sometimes, laws can be challenged as ultra vires the head of


government that passed them;
b) A judge cannot exceed his jurisdiction during a preliminary
hearing;
c) Both objective and subjective grounds must be present to satisfy
“reasonable grounds” under section 495 of the Criminal Code;
d) Two of the above;
e) None of the above.

20. Which of the following describes the events in the proper


order:

a) Appearance notice, arraignment, information, trial;


b) Information, preliminary hearing, arraignment, trial;
c) Arraignment, preliminary hearing, trial, sentencing hearing;
d) Arrest, arraignment, summons, trial;
e) None of the above.

21. An application to a higher court to quash a decision or order


from a lower court is known as a:

a) Writ of certiorari;
b) A challenge;
c) A trial de novo;
d) Writ of mandamus;
e) None of the above.

22. John is charged with aggravated assault (punishable by more


than 5 years), and Mary is charged with first-degree murder. How
many peremptory challenges do they have?

a) John 12 / Mary 20
b) John 20 / Mary 12
c) John 4 / Mary 20
d) John 12 / Mary 12
e) John 4 / Mary 12
23. If John was charged with both aggravated assault and murder,
how many challenges would he have?

a) 40
b) 32
c) 24
d) 16
e) 20

24. If John and Mary were to be tried together for both crimes, how
many challenges would they have?

a) 40
b) 32
c) 12
d) 20
e) 16

25. Everyone charged with first degree murder will have a trial by
judge and jury unless:

a) The judge decides it is in the best interests of justice to have judge


alone hear the case;
b) The Crown agrees to have the matter heard before judge alone;
c) The accused agrees to have the matter heard before judge alone;
d) All of the above are required;
e) b and c are required.

26. Prospective jurors summarily collected off the street when the
original jury pool has been exhausted are:

a) Not acceptable, as they must be representative of the community;


b) Acceptable, but subject to unlimited peremptory challenges;
c) Known as Talesman;
d) Acceptable despite not being randomly selected;
e) 2 of the above.
27. The accused will have an election for:

a) Section 553 offenses;


b) Section 469 offenses;
c) Some indictable offenses;
d) Some summary conviction offenses;
e) 2 of the above.

28. The main difference between an information and an indictment


is in:

a) The potential penalties for failing to appear;


b) The form of service;
c) The requirement to appear at a police station under the
Identification of Criminals Act;
d) Who swears it;
e) None of the above;

29. In BC, an information is approved by the Crown _______ it has


been sworn to a JP.

a) Before;
b) After;
c) Before only if there is some doubt as to the strength of the case;
d) Cases are sworn and approved at the same time, as BC has one of
the highest standards required for case approval;
e) Cases do not require Crown approval to maintain a check and
balance between police and prosecutors.

30. During Stan’s robbery trial the Crown suddenly decided to call
“no evidence”. This resulted in:

a) A finding of not guilty, with no appeal;


b) A one-year pause in proceedings, during which the Crown could
re-start the case (but they rarely do in such cases);
c) A withdraw of charges, which the Crown could restart;
d) A finding of not guilty which could be appealed under normal rules
of appeal;
e) A challenge for Stan to show some evidence of his innocence.
31. During Debbie’s assault trial the defence made a “no evidence”
motion. This resulted in:

a) Consideration of whether the Crown had presented some evidence


on each essential element of the offense;
b) The defence would advance no evidence at trial, which allows their
closing comments to be last (thus taking advantage of the so called
primacy / recency effect);
c) A joint submission on a favorable sentence;
d) A request that the Crowns evidence be disallowed;
e) A writ of mandamus.

32. In Potvin, the Supreme Court of Canada made clear that:

a) A judge may not exceed their jurisdiction at a preliminary inquiry;


b) Some laws are ultra vires the head of government enacting them;
c) Warrantless arrests are no longer allowed in dwelling houses;
d) Perpetuated evidence, though allowable, must not be treated as
normal evidence;
e) None of the above.

33. Which of the following about a preliminary inquiry is true:

a) It is a court of competent jurisdiction;


b) Credibility is considered;
c) Witnesses give testimony under oath;
d) 2 of the above are true;
e) None of the above are true.

34. Policeman “Do-right” obtains a “Feeney warrant” to arrest Dr.


Evil at his evil lair. When Do-right arrives at the evil lair, it is clear he
is not home. Officer Do-right is allowed to:

a) Still enter the home so long as subjective and objective grounds to


believe the arrest is justified continue;
b) Enter the home so long as proper announcement is made before
entry;
c) Enter the home, but not conduct a search until Dr. Evil returns;
d) Do nothing until Dr. Evil returns;
e) None of the above.
35. Election by the accused takes place:

a) At trial;
b) At the Preliminary hearing;
c) In Provincial Court;
d) In Superior Court;
e) None of the above.

36. The principle of Stare Decisis is best described by the following


statement:

a) Like cases are decided by like minds;


b) A legal decision has a ratio decidendi, and must be distributed as
broadly as possible;
c) Legal decisions about an accused must be made in the presence of
an accused;
d) Given similar facts, legal principles from one case should be
applied again in later cases;
e) An agreement between Crown and defence cannot bind the judge.

37. Each of the following is a way of obtaining discovery except:

a) Voir dire;
b) Request for particulars;
c) Request for circumstances;
d) Pre-trial conference;
e) Preliminary inquiry.

38. The most serious condition attached to a judicial interim


release on the list below is:

a) Release on an undertaking to appear;


b) Release on a recognizance;
c) Release with a deposit;
d) Release with a surety;
e) Release with a condition that the accused abstain from alcohol.
39. Autrefois convict is:

a) A special conviction;
b) A direct indictment;
c) A special plea;
d) A type of evidence;
e) A type of hearing.

40. Unless otherwise stated, the maximum personal fine for a


summary conviction offense is:

a) $2000;
b) $5000;
c) $100,000;
d) There is no limit;
e) None of the above.
Part B: Fact Pattern 1 – Suggested time – 30 minutes, 25 marks

Jake, a private security guard at a tow-truck impound lot near downtown


Vancouver, has been approached by the Vancouver Police to be “extra diligent”
during the Olympic games. His local beat officer, Tom, explained to Jake that if all
the security guards in the city pitch in and help keep the peace, security for the
games should be all the more effective. Tom encouraged Jake to call in any
suspicious activity at once.

During the second night of the Olympics, Jake noticed a dark figure climbing the
fence to the impound lot. Upon closer investigation, he found a man attempting
to pick a locked door on one of the older cars in the impound lot. Jake surprised
the man, who was clearly intoxicated, and placed him under arrest. Upon
searching the man, Jake discovered what appeared to be a hard metal object in his
pocket, which turned out to be an advanced set of car theft tools. Although the
man had no ID on him, he said his name was Joe Blow.

Unfortunately, since it was the middle of the night Jake was the only person at the
lot. He locked Joe Blow in the office until morning, at which time he called Tom.
Tom arrived shortly thereafter, and Jake showed him the tools he had found.
Tom proceeded to question Joe Blow about his whereabouts over the past several
nights. He explained that there had been a sudden string of car thefts in the area.
Joe Blow explained that he was a BCAA driver, had the tools because he let people
into locked cars for a living, and that he was actually drunk the night before,
missed the last skytrain back to Surrey, and was simply looking for safe place to
“crash” for the night. Tom questioned Joe Blow for almost an hour.

Eventually, Tom arrested Joe Blow (theft under, s.334), and took him to the
station. The only other officer at the station (everyone else was out working
Olympic security) was Scott, “the rookie”. The rookie, unclear what exactly to
do, decided to keep Joe Blow in “the clink” until the next JP was available, which,
again due to the number of personnel watching various Olympic events, was not
for 48 hours.

The JP eventually decided to keep Joe Blow pending trial, citing that “the people
of Vancouver will feel that their cars and trucks are safe as long as you’re behind
bars Mr. Blow”.

You are a legal aid volunteer and have been assigned to this case. Advise your
client as to the legal issues that might arise as a result of:

a) The actions of Jake (8 marks).


b) The actions of Tom (9 marks).
c) The actions of Scott “the rookie” (4 marks).
d) The actions of the JP (4 marks).
Criminology 330 Midterm Answer Guidelines

Fact Pattern 1

a) The following should all be considered for a point if properly noted:

 Note that Jake is a private citizen, not a PO, and that private citizen
arrests are governed by s. 494.

 Further note that, as a security guard, under s. 494(2) Jake has


expanded powers of arrest regarding crimes being committed in
relation to private property under Jake’s protection.

 As the offense is Hybrid, and thus treated as Indictable until the


crown makes an election, any private citizen can make an arrest if
Joe is found committing the offense (which he was).

 Jake’s search of Joe Blow, as well as his overnight detention, would


not normally violate Joe Blow’s Charter rights, since Jake is a private
citizen. However, it could be argued Jake was acting as a “state
agent” (since he may have been acting under Tom’s instructions to
be on the lookout during the Olympics as a pseudo-cop).

 Reference the Buhay case.

 If Jake is a state agent, the detention was almost certainly arbitrary,


and rights to counsel were almost certainly violated.

 If not state agent, then still not ok as 494(3) says “forthwith”, so it


would be unlawful confinement.

 However, the search was likely OK as such searches have been found
to be acceptable if for weapons (i.e. hard objects) incident to arrest.
(Don’t be confused by more limited powers of search incident to
investigative detention, as per Mann, since this is an arrest made on
RG).

b) The following should all be considered for a point if properly noted:

 Note that Tom is a police officer and, as such, rules of arrest are
governed under s.495.

 Tom’s immediate interactions with Joe might have constituted a


“detainment” under Charter sections 9 and 10. Detainment usually
occurs if the individual being questioned feels that they do not have
a choice in whether they can leave, erring on the side of caution.

 Whether a detainment is “arbitrary” is affected by the circumstances


in which Tom found Joe (i.e. the nexus of time and space between
the encounter and the investigated crime).

 Reference Mann/Therens.

 Can argue either way as to whether detention rights were violated.

 Can arrest if RG to believe an indictable offense had taken place. As


offense is Hybrid (treated as Indictable until Crown’s election), and
Jake’s story is likely more than enough RG, arrest is probably OK.

 Note Storry/Feeney meaning of RG

 However, as it is a Hybrid offense, there is also a duty not to arrest


(and issue AN or Summons) under s.495(2), unless there is a need to
establish ID, S/P evidence, prevent more crimes, etc. (495(2)(d)(i),
etc.).

 There is also a duty if arrested to release under s.497 unless there is


a need to establish ID, S/P evidence, prevent more crimes, etc.
(497(1.1)(a)(i), etc.).

c) The following should all be considered for a point if properly noted:

 Scott goes through the same analysis Tom did, now under section
498.
 Scott has additional options to let Joe go on a PTA or a Recognizance.
 Scott can also release at any time leading up to an appearance under
s. 503 (for example, if it turns out there is no JP readily available).
 Can argue either way on whether continued detention is justified on
grounds of need to establish ID or prevent further crimes.
 Note here that under s.503 that if they don’t release, they must get
Joe to a JP without delay, either within 24 hours or, if not, as soon as
a JP is available (this could alternately be counted as a point under
(d), below).

d) The following should all be considered for a point if properly noted:

 Note here that under s.503 that if they don’t release, they must get
Joe to a JP without delay, either within 24 hours or, if not, as soon as
a JP is available (this could alternately be counted as a point under
(c), above).
 Under s.515(1), there is a presumption that Joe is to be released by
the JP on a UTA with no conditions.
 The crown must demonstrate the need for any conditions (515(2)),
or continued detention, on a Balance of Probabilities.
 Continued detention can only be justified to (a) ensure court
attendance, (b) safety, or (c) to maintain confidence in the
administration of Justice 515(10).
 Can argue that either a or c apply.

Part C: Fact Pattern 2 – Suggested time – 40 minutes, 35 marks

Johnny Keener just graduated from law school last year and landed a great job as
a Crown prosecutor. Unbelievably, due to a massive scheduling mix up, his first
case is an incredibly high profile murder case involving a person suspected of a
series of murders along the “Highway of Tears”.

Initially Johnny thought the accused, Jack Flack, just might be guilty too. Working
closely with the police prior to laying charges, Johnny Keener and the police
discovered some key facts about Jack, including that he’s lived his whole life in
the area where the deaths occurred, he has a history of violent behavior and he
personally knew many of the victims. There is also some DNA evidence linking
him to many of the scenes where deceased were found. Johnny does discover
that Jack was out of the country at the time that one of the murders was supposed
to have taken place, but determining exact “time of death” is such an inexact
science that it’s hard to say for certain.

However, as more facts come to light, Johnny starts to doubt Jack’s guilt more and
more. For example, Johnny also discovers that Jack’s friend, Frank, is also linked
to the victims as Jack is, was in the country for all the estimated times of death,
and has a tendency toward violence even worse than Jack’s. Nevertheless, Johnny
is under tremendous pressure to proceed with the case, which he decides to do.
After all, there’s still a chance they have the right man, and he looks guilty enough.

Johnny and the police agree to initiate charges, and they proceed by way of direct
indictment to trial (skipping the preliminary hearing). Johnny discloses
everything he knows to Jack’s lawyer (a high powered lawyer named Lionel
Hutz), except (1) the stuff about Jack being out of town during one of the time of
death estimates (which he figures is unreliable data, and he assumes Jack will
figure out on his own anyway) and (2) the additional facts about Frank, Jack’s
friend.

At trial, right out of the gate Jack’s new lawyer catches Johnny off guard by asking
for a stay of proceedings based on the tremendous notoriety the case has been
receiving. He argues that the constant news coverage, combined with the
upcoming scheduled broadcasts of the movie, “Highway of Tears” will make a fair
trial impossible. In the alternative, Mr. Hutz requests that a broad publication
ban be issued against the upcoming movie.

Johnny finally realizes he is in way over his head. He requests your help. Advise
Johnny as to:

a) The prospect of a stay of proceedings based on case notoriety (5 marks).


b) The prospect of the application for a publication ban succeeding (10
marks).
c) Any issues he might have going forward in relation to his disclosure
obligations (10 marks).
d) Accountability, if any, he or the Crown might face as a result of their actions
thus far (10 marks).

Criminology 330 Midterm Answer Guidelines

Fact Pattern 2

a) The following should all be considered for two points if properly noted:

 Asking for a Stay of Proceedings based on case notoriety is a Charter


Challenge under 11(d); the right to a fair trial (in effect, the defense
is saying it would be impossible to select an impartial jury).
 They have almost zero chance of success, as the court will usually
prefer the various methods that can be used to control jury access to
newspapers and media (i.e. publication ban, sequestering, etc.).
 Note cases of Kenny (Nfld. Training school) and Phillips (Westray
Mining).

b) The following should all be considered for two points if properly noted:

 Publication Bans are normally an exercise of weighing 2 Charter


rights against each other, the right to a fair trial (11(d)) vs. freedom
of expression (2(b)).
 In an Oakes style analysis (but not the Oakes test) the proponent of
the ban must justify the ban.
 Note Dagenais (Boys of St. Vincent case) and Mentuck (Mr. Big case).
 The proponent must show (a) the necessity of the ban to avoid the
risk of an unfair trial, (b) that there is no other, less intrusive way to
protect the trial (i.e. sequestering potential jurors, narrowing the
publication ban or asking the jury pool questions), and (c) that there
is proportionality between the need to ensure a fair trial vs. the
negative effects of the publication ban.
 Make an intelligent argument either way.

c) The following should all be considered for two points if properly noted:

 Crown disclosure is governed partly under the CCC, but primarily it


is protected under s.7 of the Charter because of Stinchcomb.
 Under Stinchcomb, the crown must disclose all relevant evidence
they have prior to arraignment if possible, but on an ongoing basis
and should not consider credibility.
 The effect of non-disclosure might be a simple adjournment (if the
non-disclosure is discovered during trial) but could also result in a
new trial.
 In determining whether non-disclosure should result in a new trial,
the courts will consider (a) if the non-disclosure could have affected
the reliability of the conviction and then (b) if not, could the non-
disclosure have had an overall affect on trail fairness (reference
Dixon or Taillefer and Duguay).
 Note that the non-disclosed evidence, in this case, is almost certainly
relevant (i.e. should be disclosed), and its non-disclosure would
almost certainly result in a new trail if appealed.

d) The following should all be considered for two points if properly noted:

 The crown might be held accountable for its actions in one of 3 main
ways (a) a claim of abuse of process, (b) a claim in malicious
prosecution, and (c) a complaint against the law society of the
province where the lawyer in question works.

 The defense could ask for a stay of proceedings (or some other
remedy) under abuse of process based on the close working
relationship exhibited by police and crown in developing these
charges. However, the Regan case tells us that a stay will only be
awarded in the clearest of cases (was not allowed for all charges
even in the face of crown/police co-operation and alleged judge
shopping).

 An action in malicious prosecution requires 4 elements (action


initiated by def, resolved for pltf, w/o reasonable cause, and
motivated by malice). In Nelles, it was determined that legislation
allowing for crown immunity from such prosecution should not be
allowed. The prospect of being sued for MP, which is a fairly tough
case to prove, should not significantly interfere with crown’s ability
to do their job.
 However, the recent Miazga case may have made such prosecutions
very difficult again, as now a subjective and objective lack of
reasonable cause is required (just subjective would do before) and
subjective lack of cause cannot, by itself, be suggestive of adequate
malice (it could be before).

 In this case, there was a lack of subjective belief in guilt. Given the
facts, was there also a lack of objective reasonable cause? How could
Malice be inferred, beyond lack of subjective belief in guilt? Make an
argument.