Final Examination Number________________________
OSGOODE HALL LAW SCHOOL
YORK UNIVERSITY
FINAL EXAMINATION - WINTER 2013
EVIDENCE
Professor R. Bessner
April 19, 2013
Duration: 3 hours (including 30 minute reading period)
Instructions:
1. There will be a 30 minute reading period and an additional 150 minutes to
complete the examination. Do not begin typing or writing your answers in
the examination booklets until the reading period has ended. Suggested time
allocations are calculated out of 150 minutes (2.5 hours). The examination is
graded out of 100 marks.
2. This is a modified open book examination. Candidates may bring into
the examination room the following material only: your casebook
including the supplement, any readings assigned or hand-outs, any notes
or summaries you have prepared, and a printout of relevant
statutory provisions and/or copy of an Annotated Criminal Code and
Related Statutes. No other materials are permitted in the examination room.
3. The examination consists of three questions. Answer ALL three questions.
4. If you are writing your answers in examination booklets, you must write
in ink on alternate lines.
5. Write your examination number on this examination paper in the
space provided above. Enclose this examination paper (and any
booklets) in the envelope provided.
6. This examination consists of 6 (six) pages, including the cover page. Please
ensure that you received a complete examination.
Evidence Exam
Question 1: 50 marks (approx. 75 minutes)
Camp Arrowhead is a summer camp for girls in Northern Ontario near Algonquin
Park. It is located about 150 kilometers northwest of Huntsville. Girls from the ages
of 8 to 16 attend this camp, which specializes in canoe trips and watersports.
Stan Wilkens, 20 years old, was head of the canoe trips and camping program at
Camp Arrowhead. He was a second year student in the kinesiology program at
McMaster University. He had excellent skills in First Aid in addition to his canoeing
and camping expertise. When he was not on camping trips in Algonquin Park, he
lived in a cabin with other canoe trip counselors (trippers), next to the dining hall at
Camp Arrowhead.
The camp had a kitchen staff who prepared meals for the campers and counselors
and assisted the trippers in packing the knapsacks with food for the camping trips in
Algonquin Park. Agnes Avalon, a kitchen staff member, lived with her parents in a
small village of 550 people about a 15 minute drive from the summer camp. She
was 17 years old. She struggled academically and had repeated grades 5 and 8 at
her school. Her parents took her to see specialists at the Hospital for Sick Children
in Toronto when she was 12 years old. She was diagnosed with a mild form of
autism.
On August 10, 2010 Stan Wilkens began the preparations for the camping trip in
Algonquin Park with the 9 year olds in Cabin “Birch”. Stan asked Jennifer Jones, a
camper in that cabin who looked mature for her age, if she would like to help him
prepare for the camping trip. Thrilled that she had been selected and excited for her
first canoe trip, Jennifer without hesitation agreed. Stan and Jennifer met at the
dining hall to discuss the food items, cooking utensils, and equipment for the tent.
Agnes was in the dining room at that time clearing the tables from breakfast. She
saw Stan and Jennifer enter the dining room and sit at a table at the opposite end of
the room. About 10 minutes later, she saw Stan move closer to the blue eyed blond
hair camper, kiss her and touch her chest.
On the night of August 10, kitchen staff member Brian Brine was returning to the
parking lot at 9:30pm. He passed the tripping cabin. The trippers were sitting
around a campfire. Brian heard tripper Sean Smith state that he and Stan Wilkens
planned “to score” with Jennifer that summer and bet 5 beers on who would be
“first.” Sean Smith was planning to move to Chile to work in his uncle’s hiking
company in the Andes after the camp season.
The camping trip with Cabin “Birch” left on August 12. Stan Wilkens was
accompanied by a junior member of his tripping staff, Joseph Adams, as well as
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Donna Dickens, the cabin counselor for the 9 year old girls. After paddling on the
lake for a number of hours, the counselors and campers arrived on a secluded island
where they set up camp. The campers collected wood for the fire and they ate
dinner and sang camp songs. Donna noticed that Stan was paying a lot of attention
to Jennifer and that he was physically demonstrative with the 9 year old girl. That
evening, Stan went into Jennifer’s tent after the children had fallen asleep. He woke
Jennifer and asked her if she would like to play a game of scrabble. He told her not
to tell anyone - it was their secret. Jennifer accompanied Stan to his tent that he
shared with Joseph. Donna heard whispering and saw Stan bring Jennifer to his tent,
which was blue on the exterior and beige in the interior.
In October 2011, a teacher at Jennifer’s elementary school held a health education
session in which inappropriate sexual behavior was discussed. After the session,
Jennifer disclosed to the teacher that canoeing counselors at her summer camp had
kissed her and touched her chest during a camping trip.
The police were contacted and a police investigation was conducted. Stan Wilkens
was charged with sexual assault under section 271 Criminal Code.
The preliminary inquiry in R. v. Wilkens was held on December 4, 2011. Donna
Dickens was one of the witnesses who gave evidence for the Crown. Donna testified
that Stan was very demonstrative with Jennifer on the camping trip and that she
saw Jennifer enter Stan and Joseph’s tent at about 9:45pm on the evening of August
12, 2010. In cross-examination, defence counsel asked Donna whether she had
dated Stan in the past. She replied in the affirmative. Defence counsel asked several
follow up questions. The judge considered the questioning aggressive and
disallowed counsel’s question on whether the break-up was acrimonious and
whether Donna continued to harbor ill-feelings toward Stan.
At the Wilkens trial, Jennifer was called as a witness on behalf of the prosecution.
The Crown asked Jennifer questions to demonstrate that she understood the
concept of telling the truth on subjects such as the weather that day and the school
she attended. The trial judge also asked a few questions to assess Jennifer’s
understanding of the promise to tell the truth such as the shapes of the design on
her dress.
When Jennifer gave her evidence at trial, she stated that on the camping trip in July,
she was kissed and touched on her “private parts”. She described the colour of the
interior of Stan’s tent as green.
Joseph Adams was another Crown witness. The prosecutor asked him questions
about the camping trip, the sleeping arrangements, and whether he had seen
Jennifer and Stan in the tent during the evening of August 12. Joseph maintained
that he had fallen asleep at 9pm and did not see or hear Jennifer in the tent on the
night of August 12, 2010. In cross-examination by defence counsel, Joseph
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acknowledged that he had played scrabble with Jennifer that night and that he had
given her a goodnight kiss and patted her buttocks.
Agnes was also a Crown witness. She was extremely nervous. Crown Counsel asked
that she be allowed to testify behind a screen. The trial judge was reluctant to grant
the request as he thought the witness might be able to give her evidence without the
device. He reluctantly granted the request but decided that this would likely have
an effect on the weight to be accorded to Agnes’ testimony.
Crown Counsel also introduced into evidence the December 4, 2011 transcripts of
the testimony of Donna Dickens. Donna was studying at Neuchatel, a school in
Switzerland, at the time of the trial. Brian Brine was also called to give evidence at
the trial.
The defence called Stan Wilkens to the stand. The theory of the defence was that the
complainant had concocted the allegations and that Stan had not committed the
alleged sexual assault. At the beginning of Stan’s testimony, defence counsel asked
introductory questions about Stan’s education. Stan testified that when he was in
high school, he was the recipient of many awards including best athlete and the
award for valour and integrity.
The defence also called Professor Green from McMaster University who had been in
the hearing room listening to the testimony of the witnesses. Stan had been his
student and his research assistant in the kinesiology program. Professor Green
discussed Stan’s intelligence, that he met all paper deadlines, that he always
footnoted his sources and did not plagiarize, and that he believed Stan’s testimony.
On cross-examination, the Crown asked Stan whether he had been involved with the
law in the past, and in particular, whether he had been convicted of theft (Section
322 Criminal Code) in 2004 and sexual interference (Section 151 Criminal Code) in
2009. He was also asked about the victims in the theft and sexual interference cases
in which he had been involved, where these events had occurred, and whether he
had committed these offences together with friends.
The trial judge reserved his decision.
After Stan’s trial, Joseph Adams was charged with the sexual assault of Jennifer
Jones under Section 271 Criminal Code. Joseph testified at his own trial that he was
not in the tent until 11:30pm on August 12, 2010 as he had been reading a novel by
the campfire at the other end of the island until shortly before that time.
Discuss the evidentiary issues that arise in this case and explain how these
evidentiary issues should be decided with reference to supporting caselaw
and relevant statutory provisions.
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Question 2: 20 marks (approx. 30 minutes)
Legal academics and members of the judiciary have commented that the spousal
rules in Section 4 of the Canada Evidence Act are ”marked with significant
inconsistencies” and are “in need of rationalization at the legislative level”.
You are a lawyer in the Department of Justice in Ottawa. Senior Counsel
has asked you to prepare a memorandum that identifies and analyzes the
problems with Section 4 of the Canada Evidence Act and has requested that
you propose recommendations for amendments with respect to this statutory
provision for consideration by the Minister of Justice.
Question 3: 30 marks (approx. 45 minutes)
Mr. Lawrence Lahey, a 78 year old widower, lived in a semi-detached home, on
River Road in Toronto. He rented the basement of his home to Sally Felds. Mr.
Lahey had cataracts and a heart condition. Mr. Lahey always wore a medic-alert
electronic bracelet, which at the push of the button, connected him with EMS
(Emergency Medical Services) in the event that he needed medical attention.
On the evening of January 5, 2013 at about 7 pm, the doorbell rang. Mr. Lahey
peered through his window and saw a courier truck. He opened the door a crack
and a man, dressed in a UPS uniform and a tuque, pushed Mr. Lahey to the floor and
entered the home. Mr. Lahey yelled. The UPS man instructed Mr. Lahey not to
move. He put duct tape over Mr. Lahey’s mouth and went through the home
collecting the cash in Mr. Lahey’s bedroom night table, the silver cutlery and antique
crystal vases in the dining room, and a valuable painting by Emily Carr.
Sally, who was in her basement apartment at the time, heard a commotion on the
floor above her. She climbed the stairs, saw the intruder and Mr. Lahey whimpering
on the floor. She ran to the telephone to call 911. The UPS man pulled out his
penknife and instructed Sally to lie on the floor. When she did not comply, the UPS
man plunged his penknife into her abdomen. She began to bleed profusely. While
this was occurring, Mr. Lahey quietly pressed the button on his medic-alert bracelet.
Within a few minutes, the siren of the EMS could be heard in the distance. A
paramedic, Steve Perry, entered the house and saw Mr. Lahey and Sally on the floor.
Sally screamed, “the UPS man is in the back of the house and I feel faint”. Steve ran
toward the backdoor and saw a man with a scar over his right eye run out the door.
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Sally was transported to the East York Hospital. She died the next morning, 17
hours after the incident.
Steve Perry’s shift ended at 8am on January 6. On his way home, he stopped at a
convenience store to buy milk before he went to the gym. When he arrived at the
cash, he noticed a man with a scar on his face waiting in line. Steve stared at him
and said, “Aren’t you the person who broke into an old man’s home and plunged
your penknife into a woman stomach?” He yanked the hair of the man, whose name
was Michael Milgram, and immobilized his arms. Michael muttered, “Yes”. Michael
broke the hold and fled out of the store.
When Michael arrived at his condominium, his wife Edith noticed some blood stains
on his workpants.
Michael decided to meet with a defence lawyer who had been recommended by his
friend. His friend accompanied him to the meeting. Michael made it clear to the
lawyer, Ms. Ratio of Gavel and Gavel, that this was a preliminary meeting. Michael
said that if he was criminally charged, he would decide whether to formally retain
Ms. Ratio. The lawyer made notes. In the meeting, Ms. Ratio suggested that it would
be a good idea to contact Mel Neuron, a well-known psychologist from Fargo College
in North Dakota. Dr. Neuron had conducted empirical studies in the past 3 years on
eyewitness identification by the elderly and the poor powers of perception and
memory of persons in their late 70’s. Michael asked for a copy of Ms. Ratio’s notes
after the meeting. He returned home by bus but, unbeknownst to Michael, the notes
fell out of his pocket. The TTC bus driver noticed the paper on the floor and gave it
to his superior after his shift.
Michael Milgram was subsequently charged with murder and robbery.
A few days before he was criminally charged, Michael divulged to his wife Edith that
he had taken silverware from a customer’s house as their anniversary was the
following week and the silverware was to be his gift to her. Their 16 year old child,
Jeremiah, was in the den in the adjoining room playing a computer game.
You are an articling student at Gavel and Gavel. Ms. Ratio, who will be
representing Michael Milgram at his trial, has asked you to examine the
evidentiary issues in this matter and to discuss the likely admissibility of the
evidence with reference to caselaw and pertinent statutory provisions.
End of Exam
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