Instructions Specific to This Exam

1. This examination contains four questions of unequal value, worth a total of 100 marks.

2. Suggested time allocations are provided for guidance only. Candidates remain responsible for managing the three-hour examination period.

3. You will be assessed primarily on your knowledge of the Canadian law of evidence contained in the assigned materials and your ability to:

   • identify the precise evidentiary issue raised;

   • state the governing rule or statutory framework;

   • apply that rule closely to the facts;

   • distinguish admissibility from permissible use and weight;

   • assess competing arguments; and

   • reach a reasoned conclusion.

4. No marks are awarded for merely reproducing or summarizing the facts.

5. Each question is independent. Do not import facts or rulings from another question.

6. Unless a question specifically makes threshold relevance part of the dispute, do not spend substantial time establishing basic relevance or materiality. Where probative value forms part of an exclusionary or statutory balancing test, however, it must be addressed.

7. Do not treat admissibility as the end of the analysis. Where appropriate, identify:

   • the purpose for which the evidence may be used;

   • any prohibited inference;

   • the need for a limiting instruction;

   • and matters affecting weight rather than admissibility.

8. In sexual-offence questions, apply the statutory screening framework carefully. Do not reason that a complainant was more likely to consent, or less worthy of belief, merely because of prior sexual activity.

9. Keep distinct:

   • witness competence;

   • witness compellability;

   • testimonial accommodations;

   • and privilege.

10. In considering privilege, identify precisely:

    • the communication or information said to be protected;

    • the relationship in which it arose;

    • and whether the claimed privilege is class-based or must be established case by case.

11. With real and electronic evidence, distinguish:

    • authentication;

    • hearsay;

    • integrity or reliability concerns;

    • and the ultimate weight assigned to the item.

12. Judicial notice is not a device for avoiding proof of genuinely disputable factual or scientific propositions.

13. For Question Four, assume the Charter infringement expressly identified in the facts has already been established. Do not analyze whether a Charter breach occurred. Address only the evidentiary consequences.

14. Full citations are unnecessary for authorities contained in the assigned materials. Relevant Canadian cases and statutory provisions should nevertheless be identified with sufficient precision.

15. Do not rely on non-Canadian authorities.

16. Answer the question actually asked. Avoid generic essays, memorized evidence-law checklists or discussion of doctrines not reasonably raised by the facts.

17. Write clear, organized answers in complete sentences.

QUESTION ONE

30 marks — suggested time: 54 minutes

FACTS

Soren Kehl is charged with sexual assault arising from an encounter with Livia Morin.

Soren and Livia met through mutual friends approximately one year before the alleged offence. They saw each other socially on several occasions and had previously been intimate.

The Crown and defence agree that sexual activity occurred at Soren’s condominium on November 16. The central dispute is whether Livia consented to the activity that occurred there.

Livia says that she went to Soren’s condominium to watch a movie. She testifies that, after they arrived, Soren unexpectedly produced a blindfold and soft restraints. She says:

“There had never been any discussion that day about doing anything sexual. I did not go there expecting sex, and I definitely did not agree to being restrained.”

She says that when Soren began restraining her wrists she repeatedly told him to stop.

Soren says the encounter was consensual throughout and that the parties had discussed the proposed activity before Livia arrived.

The messages

At 2:14 p.m. on November 16, approximately seven hours before Livia went to the condominium, Livia sent Soren the following message:

“I still want to try the blindfold and the soft cuffs tonight. No choking. And if I say stop, everything stops.”

Soren replied:

“Absolutely. Blindfold and cuffs only. Stop means stop.”

At 5:08 p.m., Livia wrote:

“Still on for tonight.”

The Crown does not dispute the authenticity of the messages.

The defence wishes to introduce them.

Defence counsel says they will not argue that the messages constituted advance legal consent to anything that later occurred.

Instead, counsel says the messages are relevant because:

• they directly contradict Livia’s evidence that no such discussion occurred;

• they show what the parties were contemplating for the particular meeting scheduled later that same day; and

• they assist the trier of fact in evaluating the sharply competing accounts of how the encounter began.

The Crown responds that the messages are sexual communications and that any attempt to use them to support Soren’s version necessarily amounts to reasoning from prior sexual activity to consent.

The earlier encounter

The defence also seeks to prove that, approximately eight months earlier, Livia and Soren engaged in consensual sexual activity involving the same blindfold and restraints.

Defence counsel states:

“She had willingly done exactly this with Soren before. That makes it more likely that she willingly did it again.”

There is no suggestion that anything unusual was said or done during the earlier encounter that independently explains the events of November 16.

The journal entry

Two days after the alleged assault, Livia wrote a private entry in an encrypted digital journal.

The entry includes:

“I keep replaying the beginning. I know I wanted him to stop once things were happening, but I honestly cannot remember whether the first ‘stop’ was in my head or whether I actually said it out loud. After that, I know I said it.”

Several weeks later, while Soren and Livia were exchanging personal property following the end of their relationship, Soren obtained a screenshot of the journal entry from a tablet that had previously been used by both parties.

The Crown does not allege that Soren altered the screenshot.

At trial, Livia testifies:

“I clearly said stop as soon as he started putting the restraint on my first wrist. I remember saying it more than once.”

The defence wants to confront her with the journal entry.

The Crown argues that the journal was intensely private and cannot simply be used because Soren happens to possess a copy.

The employment file

Finally, the defence applies for production of the entire human-resources investigation file maintained by Tallis Creative Group, Livia’s former employer.

Three years earlier, Livia complained that a supervisor repeatedly made unwanted personal and sexual comments toward her at work.

The employer investigated and ultimately advised both employees:

“The available evidence does not permit the company to substantiate the complaint.”

The investigation did not conclude that Livia had fabricated the complaint.

The file contains approximately 170 pages, including:

• interviews with Livia and six co-workers;

• personal emails;

• performance reviews;

• information about unrelated workplace disputes; and

• notes made by the external investigator.

Defence counsel says:

“If she made another serious allegation that could not be proven, there may be material in the file bearing on her credibility.”

Counsel cannot identify any particular document believed to contain an admission of fabrication.

The Crown and Livia oppose production.

QUESTION

Prepare a memorandum advising the trial judge on the admissibility and permissible use of:

1. the November 16 messages;

2. the earlier consensual encounter;

3. Livia’s private journal entry; and

4. the Tallis Creative Group investigation file.

Address any procedural screening requirements and any limitations that should accompany admission.

30 MARKS

THE BRICKAM EXPLANATION — QUESTION ONE

1. The Four Items Raise Related but Distinct Problems

It would be a mistake to treat everything simply as “sexual-history evidence.”

The judge must distinguish among:

• sexual communications concerning the particular future encounter;

• prior sexual conduct offered expressly to support a propensity inference;

• a private record already in the accused’s possession;

• and records held by a third party that the defence first seeks to obtain.

Different evidentiary concerns arise from each.

2. Section 276 Begins by Prohibiting the Twin-Myth Inferences

Evidence of other sexual activity cannot be used to reason that, because of the sexual nature of that activity, the complainant:

• was more likely to have consented to the activity charged; or

• is less worthy of belief.

The restriction is concerned with the reasoning process, not simply with whether the evidence happens to contain sexual content.

Sexual communications are themselves capable of engaging the statutory regime.

The court must therefore ask not merely:

“Is this sexual evidence?”

but:

“What precise inference does the defence seek to draw from it?”

The November 16 Messages

3. The Messages Do Not Amount to Advance Consent

Soren cannot argue:

Livia agreed at 2:14 p.m., therefore she legally consented at 9:00 p.m.

Consent must exist at the time of the sexual activity and remains revocable.

The express language of Livia’s own message reinforces that point:

“if I say stop, everything stops.”

The messages therefore cannot immunize conduct occurring after consent was withdrawn or establish that later touching was consensual merely because future activity had previously been contemplated.

4. But That Does Not Make Every Earlier Statement Legally Irrelevant

The defence advances a narrower theory.

Livia testifies that:

• no sexual activity had been discussed that day;

• she did not expect restraints; and

• the blindfold and cuffs were produced without prior discussion.

Her own messages appear directly inconsistent with that account.

That gives the communications relevance independent of a general inference about sexual propensity.

5. Reimer Is Particularly Important

R v Reimer, 2024 ONCA 519 rejects the proposition that a statement of present intention concerning sexual activity on a specific forthcoming occasion is automatically irrelevant because consent must later be contemporaneous.

The distinction is critical.

The prohibited reasoning is:

“She previously engaged in sexual behaviour, therefore she is the kind of person who would consent again.”

The potentially legitimate reasoning is:

“She expressly stated an intention concerning what she planned to do at this particular upcoming meeting, which may bear circumstantially on what occurred when that meeting took place.”

The latter does not derive its probative force simply from the sexual nature of the communication.

6. Temporal Proximity and Specificity Strengthen the Defence Position

These are not vague messages from months earlier.

They were sent:

• on the same day;

• about the meeting that later occurred;

• concerning the particular devices subsequently used; and

• with express limits concerning choking and stopping.

That combination gives the messages materially greater probative value than generalized sexual history.

7. The Crown Still Has Strong Arguments About Limited Weight

A statement of intention does not establish that the speaker later acted consistently with it.

Livia could:

• have changed her mind;

• have consented initially and withdrawn consent;

• have meant something different by the messages;

• or have reached the condominium and chosen not to proceed.

The messages therefore cannot be treated as determinative.

That limitation goes primarily to the use and weight of otherwise potentially admissible evidence.

8. T.W.W. Reinforces the Need for Careful Temporal and Logical Reasoning

R v T.W.W., 2024 SCC 19 emphasizes that prior sexual activity does not become admissible merely because the defence attempts to connect it narratively to the charged event.

A court must identify a legitimate route of relevance rather than disguise twin-myth reasoning as “context.”

Here, however, the same-day messages have a more concrete relationship to the specific forthcoming encounter than the bare existence of earlier sexual activity.

9. The Messages Have a Strong Case for Admission for Carefully Defined Purposes

The better view is that at least the specific messages should be admitted through the proper statutory screening process.

Their permissible uses should be clearly identified.

They may bear on:

• whether prior discussion of the restraints occurred;

• the accuracy of Livia’s evidence that no such discussion occurred;

• and, subject to the statutory balancing inquiry, the parties’ intentions regarding the specific forthcoming meeting.

They cannot establish irrevocable advance consent.

A limiting instruction should make that explicit.

The Earlier Consensual Encounter

10. The Defence’s Proposed Inference Is Expressly Prohibited

Defence counsel says:

“She had willingly done exactly this with Soren before. That makes it more likely that she willingly did it again.”

That is virtually a direct statement of the first twin myth.

Its reasoning depends on the sexual nature of the earlier activity.

The defence is using a prior consensual encounter to establish a propensity to consent on another occasion.

11. Similarity of Sexual Activity Does Not Rescue the Inference

The fact that both occasions allegedly involved:

• the same accused;

• a blindfold;

• restraints;

• and similar sexual conduct

does not itself create a permissible route around s. 276.

Consent is specific to the occasion and activity in question.

A person who previously consented to exactly the same conduct remains legally entitled not to consent on another occasion.

12. No Independent Evidentiary Purpose Is Provided

The facts supply no distinctive statement or event from the eight-month-old encounter that:

• explains physical evidence;

• rebuts a particular allegation;

• establishes a relevant pattern independent of propensity;

• or completes some otherwise unintelligible narrative.

The only stated purpose is:

prior consent makes later consent more likely.

The evidence should therefore be excluded.

Livia’s Journal

13. Possession by the Accused Does Not Eliminate the Screening Requirement

The defence already has the screenshot.

That does not mean it can automatically place the entry before the trier of fact.

Canadian law subjects qualifying private records concerning a complainant, even where already held by the accused, to a statutory screening process before they can be adduced.

R v J.J. confirms the legitimacy and importance of that framework.

The regime seeks to reconcile:

• the accused’s right to make full answer and defence;

• the truth-seeking function of the trial;

• and the complainant’s privacy, dignity and equality interests.

14. The Journal Is Paradigmatically Private

An encrypted personal journal is qualitatively different from:

• an ordinary public post;

• a routine business document;

• or something openly distributed without an expectation of privacy.

The fact that Soren ultimately acquired a screenshot does not necessarily eliminate the privacy interest attached to the underlying record.

The proper course is a screening application, not unilateral use before the trier of fact.

15. The Defence Has a Specific Evidentiary Theory

Unlike a generalized search for credibility material, the defence can identify:

• the precise entry;

• the precise trial testimony;

• and the inconsistency said to arise.

At trial, Livia says she clearly remembers verbally saying stop immediately.

Shortly after the event, she wrote that she was uncertain whether the first “stop” was spoken or only thought.

That is a focused issue rather than an invitation to rummage through her private life.

16. The Timing Strengthens Its Probative Value

The journal entry was made only two days after the alleged offence.

It addresses:

• the same event;

• the same disputed moment;

• and the same factual question now contested at trial.

That gives the entry potentially significant probative force.

17. But the Defence Must Not Overstate What the Entry Proves

The journal does not say:

“I consented.”

Nor does it say:

“Soren did nothing wrong.”

It says Livia was uncertain about whether her first stop was spoken.

She also wrote:

“After that, I know I said it.”

Accordingly, even if admitted, the entry does not eliminate the Crown’s case.

Its legitimate use is narrower:

• testing the reliability and consistency of Livia’s recollection about the beginning of the encounter.

18. Admission Is More Defensible Than Exclusion Once the Proper Screening Occurs

The record is intensely private, but the proposed use is:

• specific;

• closely connected to a central factual dispute;

• temporally proximate;

• and not merely an attack on general character.

Those features give the defence a substantial argument for admission of the relevant passage.

The court should consider redaction of anything else contained in the screenshot that is unnecessary to the disputed issue.

The Tallis Creative Group File

19. This Application Is Fundamentally Different

The defence does not possess the HR file.

It seeks production from a third party.

The statutory regime governing complainant records recognizes that compelled production itself can impose substantial privacy and dignity costs even before admissibility is considered.

The defence must therefore satisfy the applicable threshold for judicial production.

20. “Unsubstantiated” Does Not Mean “False”

This is the central factual weakness.

Tallis concluded only that the evidence was insufficient to substantiate Livia’s earlier workplace complaint.

That does not establish that:

• she lied;

• the conduct did not occur;

• or the complaint was malicious.

Failure to prove an allegation is not affirmative proof of fabrication.

21. The Defence Theory Is Highly Speculative

Counsel says:

“there may be material in the file bearing on her credibility.”

That is essentially a request to search 170 private pages in the hope of finding impeachment material.

The statutory protections against private-record fishing expeditions would be seriously weakened if that were enough.

22. The Breadth of the Request Makes the Application Weaker

The defence asks for:

• all interviews;

• all personal emails;

• performance information;

• unrelated disputes;

• and investigator notes.

Much of that material has no apparent connection to the current prosecution.

The request is therefore both speculative and overbroad.

23. Privacy Interests Are Substantial

Employment investigations commonly contain:

• information about third parties;

• workplace relationships;

• sensitive allegations;

• and material supplied with an expectation that distribution will be limited.

The interests of people other than Livia also matter.

24. A More Particularized Foundation Could Change the Analysis

If the defence could identify reliable information suggesting that Livia had admitted fabricating the earlier complaint, the balance might look different.

Likewise, a request for one identified statement with a concrete connection to the current case would be materially different from demanding the whole file.

Those facts are absent.

25. Production Should Likely Be Refused

On the present record, the application amounts to speculative credibility fishing.

The court should not infer dishonesty merely because an earlier complaint could not be substantiated.

The entire file should therefore not be ordered produced.

Overall Advice

26. The Evidence Must Be Itemized Rather Than Treated as One Category

The likely results are:

• November 16 messages: strong case for admission after the proper screening process, for specific non-myth reasoning concerning the planned meeting and the accuracy of Livia’s account; not proof of advance or irrevocable consent.

• Eight-month-old consensual encounter: exclude. The defence expressly seeks the prohibited inference that past consent makes present consent more likely.

• Private journal entry: subject to private-record screening; strong argument for limited admission because it contains a specific, contemporaneous inconsistency on a central factual issue.

• Tallis HR file: production should likely be refused as speculative, overbroad and unsupported by evidence that the previous complaint was false.

Careful limiting instructions would be important for any sexual-activity or private-record evidence ultimately admitted.

Brickam’s Suggested Marking Approach — Question One

Issue	Marks
Identifies the s. 276 framework, prohibited twin myths and need to focus on the precise inference sought	5
November 16 messages: present intention, specificity, temporal proximity, Reimer/T.W.W., contemporaneity and limits on use	7
Earlier consensual encounter: recognizes direct twin-myth reasoning and absence of an independent permissible purpose	4
Private journal: record-screening requirement, privacy interests, specific inconsistency, probative value and possible redaction	6
Third-party HR file: production threshold, speculative credibility theory, “unsubstantiated” versus false, breadth and privacy	5
Appropriate limiting instructions and reasoned overall conclusions	3
TOTAL	30

QUESTION TWO

25 marks — suggested time: 45 minutes

FACTS

Tobin Marchand is charged with intentionally setting fire to the storage wing of a commercial building.

A night custodian suffered serious smoke inhalation.

The Crown proposes to call several witnesses.

Maren

Maren Quade, age 12, lived across the street from the building.

She says that shortly before the fire she saw Tobin leave the loading area carrying an empty red fuel container.

Maren has a significant reading disability and receives educational assistance at school.

During a pre-trial interview she:

• understood ordinary conversational questions;

• could describe where she was standing;

• could distinguish Tobin from other people she knew;

• and corrected the prosecutor when the prosecutor misstated what she had seen.

When asked:

“What is the legal significance of an oath?”

Maren answered:

“I don’t know what that means.”

When asked why she should tell the truth in court, she said:

“Because I’m supposed to say what really happened.”

Defence counsel argues that Maren should not be permitted to testify because:

“A witness who cannot explain the moral and legal meaning of an oath cannot provide reliable sworn evidence.”

If she is allowed to testify, the Crown asks that:

• Maren’s aunt sit nearby as a support person; and

• Maren testify from another room by closed-circuit technology because she becomes visibly distressed when Tobin is present.

The defence objects:

“If she is old enough to accuse someone in court, she should testify normally in front of him.”

Carys

Tobin and Carys Marchand separated eight months before the fire but remain legally married.

The Crown subpoenas Carys.

She does not wish to testify.

The Crown wants to ask her about two matters.

First, Carys says that at 1:00 a.m. on the night of the fire Tobin arrived at her apartment. She personally observed:

• soot on his sleeves;

• a strong smell resembling gasoline;

• and a small fresh burn on his right hand.

Second, once inside the apartment, Tobin told her:

“I torched the storage wing to scare the owner. I didn't know the custodian would still be inside.”

Carys says:

“Whatever else happens, I should not have to repeat something my husband told me privately.”

The Crown responds that spouses are now compellable prosecution witnesses.

Eamon

Several days later, Tobin visited Eamon Searle, a volunteer peer counsellor at a community crisis centre.

The centre is not a medical clinic and Eamon is not a lawyer, psychologist or social worker.

Before speaking, Tobin asked:

“Is what I tell you private?”

Eamon responded:

“Our whole program depends on people trusting us. We treat what people say here as confidential unless the law requires otherwise.”

Tobin then said:

“I started that fire because I was furious with the owner. I thought the building was empty.”

The centre's written policy states that peer sessions are confidential except where disclosure is legally compelled or necessary to prevent imminent serious harm.

The Crown subpoenas Eamon.

The crisis centre applies to prevent disclosure, arguing that people experiencing acute personal crises will not seek peer support if statements made during sessions can routinely be used against them.

The Crown responds that Tobin admitted a serious criminal act and that no comparable evidence establishes his responsibility as directly.

QUESTION

Advise the trial judge concerning:

1. Maren’s competence to testify and the Crown’s requested testimonial accommodations;

2. whether Carys may be compelled to testify and, if so, the permissible scope of her evidence; and

3. whether Tobin’s communication to Eamon should be protected by case-by-case privilege.

Do not discuss hearsay.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION TWO

Maren’s Evidence

1. Age Does Not Make Maren Incompetent

The modern statutory approach rejects the assumption that a child must demonstrate adult-like understanding of:

• an oath;

• abstract morality;

• or religious consequences

before being permitted to testify.

Under s. 16.1 of the Canada Evidence Act, a person under 14 is presumed capable of testifying.

The operative question is functional.

Can the proposed witness:

• understand questions; and

• respond to them?

2. The Defence Bears the Initial Burden of Raising a Genuine Capacity Issue

A party challenging the capacity of a witness under 14 must satisfy the court that there is a real issue concerning the child's ability to understand and respond to questions.

Maren's reading disability does not itself satisfy that burden.

Reading ability is not the same thing as testimonial capacity.

3. The Facts Strongly Support Capacity

Maren can:

• understand ordinary oral questions;

• describe what she observed;

• locate herself at the scene;

• distinguish individuals;

• and correct an interviewer who inaccurately summarizes her evidence.

Those are powerful practical indicators that she can understand and respond.

4. Her Inability to Explain an Oath Is Not the Test

Maren says she does not know:

“the legal significance of an oath.”

That should not disqualify her.

A proposed witness under 14 does not testify under the traditional oath-or-affirmation model merely because an adult witness would.

The statutory regime requires the child to promise to tell the truth.

It does not require a philosophical examination into what the promise means.

5. The Defence's Proposed Inquiry Is Therefore Misdirected

The court should not convert the capacity hearing into a quiz about:

• religion;

• morality;

• perjury;

• metaphysics;

• or the legal consequences of lying.

Maren's simple statement—

“I’m supposed to say what really happened”

—is entirely consistent with the statutory approach.

Her evidence should be received.

6. Reliability Remains a Matter of Weight

Admission does not mean the fact-finder must accept everything Maren says.

The defence remains entitled to test:

• opportunity to observe;

• memory;

• consistency;

• possible suggestion;

• and any other legitimate weakness.

The competence rule determines whether she may testify, not whether she will ultimately be believed.

Testimonial Accommodations

7. A Support Person Is Not an Exceptional Indulgence

The Criminal Code contains specific protections facilitating testimony by witnesses under 18.

On an appropriate application, a young witness is ordinarily entitled to a support person unless the court concludes that the arrangement would interfere with the proper administration of justice.

The presence of a support person does not itself signify that the witness is:

• truthful;

• fragile;

• or entitled to special credibility.

No adverse inference should flow from the accommodation.

8. Maren's Aunt Can Likely Sit Nearby

There is no indication that the aunt:

• witnessed the fire;

• intends to coach Maren;

• or has some conflicting role.

The court can impose conditions preventing communication while Maren is testifying.

The defence's generalized objection to accommodation is weak.

9. Remote or Screened Testimony Is Also Strongly Supported

The special-measures provisions similarly facilitate testimony outside the direct physical presence of the accused for witnesses under 18, subject to the proper administration of justice.

Maren becomes visibly distressed in Tobin's presence.

That fact strengthens the application.

The defence retains:

• the ability to hear her evidence;

• meaningful cross-examination;

• and the ability to challenge reliability.

Face-to-face physical confrontation in the ordinary courtroom configuration is not an absolute evidentiary entitlement.

Carys’s Evidence

10. Competence and Compellability Must Be Separated From Marital Privilege

The Crown is correct on one point.

Under s. 4(2) of the Canada Evidence Act, a person is not incompetent or uncompellable for the prosecution merely because they are married to the accused.

Carys therefore cannot refuse to take the witness stand simply because Tobin is her husband.

Their separation does not change that conclusion.

11. But Compellability Does Not Eliminate Privilege for Marital Communications

Section 4 also separately protects communications made between spouses during marriage.

This is a different rule.

The fact that Carys can be compelled to testify does not mean she can be compelled to disclose every private communication Tobin made to her.

12. Tobin’s Confession Was a Communication Made During Marriage

Tobin told Carys:

“I torched the storage wing to scare the owner. I didn't know the custodian would still be inside.”

They remained married.

The statement was made directly from one spouse to the other.

That is the core situation addressed by marital-communications privilege.

Carys should not be compelled to repeat the communication if the statutory privilege applies.

13. The Privilege Does Not Protect Everything Carys Knows

Carys also personally observed:

• soot;

• the smell resembling gasoline;

• and Tobin's burned hand.

Those are observations.

They are not communications from Tobin to Carys.

The marital-communications rule should not be expanded into a general immunity covering everything a spouse:

• sees;

• hears from third parties;

• discovers independently;

• or infers from conduct.

14. Carys Can Therefore Be Compelled to Give the Observational Evidence

The likely division is:

• she is competent and compellable as a Crown witness;

• she may testify about what she personally observed;

• but she cannot be compelled to disclose the protected marital communication.

A strong answer must make those propositions coexist rather than treating spousal evidence as wholly admissible or wholly excluded.

Eamon and Case-by-Case Privilege

15. No Automatic Class Privilege Applies Merely Because Eamon Is a Counsellor

Eamon is:

• not Tobin's lawyer;

• not operating within solicitor-client privilege;

• and not shown to fall within another established class privilege.

Calling the relationship “confidential” does not by itself make it legally privileged.

The centre must establish privilege on a case-by-case basis.

16. The Wigmore Criteria Provide the Analytical Framework

The court considers whether:

1. the communication originated in confidence;

2. confidentiality is essential to the relationship;

3. the relationship is one that society ought to foster; and

4. the injury caused by disclosure would exceed the benefit gained from the correct disposition of the litigation.

The analysis is contextual rather than categorical.

17. The First Criterion Is Strongly Satisfied

Tobin expressly asked:

“Is what I tell you private?”

Eamon assured him that the program treated communications as confidential.

The written policy reinforces that expectation.

The communication plainly originated in confidence.

18. Confidentiality Appears Important to the Peer-Support Relationship

The centre argues that people in crisis will avoid the service if intimate disclosures are routinely disclosed in court.

That has intuitive force.

A crisis-support program may depend substantially on people believing that they can speak candidly.

The second criterion therefore also favours protection.

19. The Relationship Has Genuine Social Value

Community crisis services can:

• reduce isolation;

• encourage help-seeking;

• assist people during acute distress;

• and direct users toward professional resources.

A court could reasonably conclude that this relationship is one society should foster.

The fact that Eamon is a volunteer rather than a regulated professional does not automatically deprive the relationship of all social value.

20. The Fourth Criterion Is the Difficult One

The privilege claim confronts an unusually strong truth-seeking interest.

Tobin allegedly admitted:

• intentionally setting the fire;

• his motive;

• and his belief about occupancy.

The Crown says no other evidence establishes responsibility so directly.

The charge also concerns a fire in which another person was seriously injured.

Those facts strongly favour disclosure.

21. The Centre's Own Policy Also Qualifies the Expectation

Eamon did not promise absolute secrecy.

He said communications were confidential:

“unless the law requires otherwise.”

The written policy contains the same qualification.

That does not destroy confidentiality, but it weakens any claim that Tobin was promised an absolute legally enforceable privilege.

22. Privilege Is Therefore Arguable but Not Assured

The first three Wigmore factors are relatively strong.

The fourth likely favours the Crown because:

• the evidence is directly probative;

• the prosecution concerns serious alleged wrongdoing;

• and there appears to be no equivalent source.

A court could therefore refuse privilege while emphasizing that this does not mean every peer-counselling communication is discoverable.

23. The Ruling Must Remain Context Specific

The judge should not announce:

“peer counselling is never privileged.”

Nor should the judge announce:

“anything said to a counsellor is confidential.”

The entire point of case-by-case privilege is that the competing interests are weighed on the particular record.

Overall Advice

24. Each Witness Raises a Different Evidentiary Question

The likely results are:

• Maren: competent to testify; inability to explain an oath does not disqualify her; requested support and remote/screened testimony should probably be granted with appropriate safeguards.

• Carys: competent and compellable; observations are admissible subject to ordinary rules, but the direct marital communication is protected from compelled disclosure.

• Eamon: no automatic privilege; the first three case-by-case privilege factors favour confidentiality, but the strong need for a highly probative admission in a serious prosecution likely weighs against recognizing privilege on these facts.

Brickam’s Suggested Marking Approach — Question Two

Issue	Marks
Child competence under the Canada Evidence Act: presumption, functional capacity, burden and promise to tell truth	6
Support person and remote/screened testimony; proper-administration-of-justice analysis and absence of adverse inference	4
Carys: distinguishes competence/compellability from privilege	3
Applies marital-communications privilege to Tobin’s direct statement	4
Distinguishes Carys’s independent observations from protected communications	2
Eamon: correctly applies the case-by-case/Wigmore privilege framework to all four criteria	5
Reasoned overall synthesis	1
TOTAL	25

QUESTION THREE

25 marks — suggested time: 45 minutes

FACTS

Kiera Solvik brings a civil action against Kelrow Distribution Inc.

Kiera alleges that a Kelrow delivery truck struck her while she was walking through a marked pedestrian corridor in the company's loading yard.

Kelrow admits that contact occurred but says Kiera stepped unexpectedly into the truck's path when the driver had insufficient time to stop.

The accident occurred at approximately 4:50 p.m. on December 9.

The video

Owen Parr, a courier waiting at the next loading bay, recorded approximately 18 seconds of the incident on his cellphone.

The video begins several seconds before impact.

Owen testifies that:

• he personally made the recording;

• he watched it immediately afterward;

• he transferred the file to his laptop that evening without editing it;

• he later gave an identical digital copy to Kiera’s lawyer; and

• the copy accurately depicts what he recorded.

Six months later, Owen's phone was destroyed when his basement flooded.

The original handset and the copy that had remained on it therefore no longer exist.

Kelrow objects:

“Without the original phone there is no way to prove this file has not been altered. A digital copy should not become evidence merely because somebody says it looks right.”

No forensic evidence suggests that the existing file was altered.

The telematics data

The truck was equipped with an automated telematics system.

Every tenth of a second, sensors automatically recorded:

• vehicle speed;

• accelerator position;

• braking input; and

• wheel movement.

The information was transmitted directly to Kelrow's server without any employee manually entering the numbers.

The relevant log shows:

• 27 km/h three seconds before impact;

• no braking input until approximately 1.1 seconds before impact; and

• rapid deceleration immediately thereafter.

Kelrow's fleet technician, Silas Venn, testifies that he maintains the system.

He explains that:

• the truck's sensors had been calibrated three days before the accident;

• the system automatically generates the data;

• employees cannot manually change the raw sensor entries through the ordinary interface;

• the system had reported no faults that day; and

• the downloaded log came from the truck assigned to the driver involved.

Kelrow nevertheless objects that:

“The computer cannot come to court and be cross-examined, so the log is hearsay.”

The supervisor

Neve Corbett, Kelrow’s loading supervisor, saw the truck approximately two seconds before impact.

She has worked around commercial vehicles for 18 years.

She proposes to testify:

“It looked like it was doing around 25 to 30 kilometres an hour. It was moving much faster than we normally allow near the pedestrian lanes.”

Kiera also wants Neve to say:

“At that speed, on damp concrete, the truck would need at least 18 metres to stop.”

Neve has never been qualified as an accident-reconstruction expert and has never performed formal stopping-distance calculations.

She says the second opinion is based on:

“years of seeing trucks brake in loading yards.”

Judicial notice

Kiera asks the trial judge to take judicial notice of two matters.

First, she produces an official federal astronomical table showing that sunset in the city on December 9 occurred at 4:41 p.m.

Second, she asks the judge to take judicial notice that:

“A commercial truck travelling on damp concrete takes at least twice as long to stop as it would on dry concrete.”

Kelrow accepts that the astronomical table is authentic but objects to both requests.

The formal admission

Nine months before trial, Kelrow's former counsel signed a formal written admission stating:

“For purposes of this proceeding, Kelrow admits that the driver was acting in the course of his employment at all material times.”

Three weeks before trial, new counsel learns that the driver had stopped at a coffee shop shortly before entering the yard.

Kelrow now wishes to argue that the driver was:

“on a personal detour and outside the scope of his employment.”

It has not obtained Kiera’s consent to withdraw the admission and has not brought any motion concerning it.

New counsel says:

“An admission cannot force the court to decide a case on facts that may turn out to be wrong.”

QUESTION

Advise the trial judge concerning:

1. the admissibility of Owen's video;

2. the telematics data;

3. the proposed opinions of Neve Corbett;

4. the two requests for judicial notice; and

5. the effect of Kelrow's formal admission.

Do not address the substantive law of negligence or vicarious liability.

25 MARKS

THE BRICKAM EXPLANATION — QUESTION THREE

Owen's Video

1. Authentication Is the Starting Point

Real evidence must be shown to be what the party tendering it claims it is.

Authentication is not the same thing as proving beyond all possibility that:

• no alteration ever occurred;

• every link in custody is documented;

• or the original physical recording device still exists.

The court needs a sufficient evidentiary foundation connecting the exhibit to the event it purportedly records.

2. Owen Provides Direct Authentication

Owen says:

• he personally recorded the event;

• he viewed the recording immediately;

• he transferred it himself;

• the existing copy accurately depicts what he recorded; and

• he made no edits.

That is strong direct evidence of authenticity.

3. Destruction of the Original Phone Does Not Automatically Make the Copy Inadmissible

The defence can use the absence of the original device to challenge:

• forensic verification;

• metadata;

• completeness;

• and weight.

But the loss of the phone does not create a categorical rule that all remaining copies must be excluded.

There is no evidence that the phone was destroyed to prevent inspection.

It was lost in a flood six months later.

4. The Objection Largely Goes to Weight on These Facts

If Kelrow had concrete evidence of:

• inconsistent versions;

• editing;

• missing frames;

• suspicious metadata;

• or deliberate destruction,

the authentication issue would be more serious.

Those facts are absent.

The video should likely be admitted, with Kelrow free to challenge what it shows and how much weight should be placed on it.

The Telematics Data

5. Machine-Generated Data Must Be Distinguished From Human Statements

Hearsay is fundamentally concerned with out-of-court human assertions tendered for their truth.

The raw telematics entries were created automatically by sensors.

No employee sat at a keyboard and asserted:

“the truck was travelling 27 km/h.”

That substantially weakens Kelrow's hearsay objection.

6. A Machine's Inability to Be Cross-Examined Does Not Itself Make Its Output Hearsay

Otherwise:

• photographs;

• radar readings;

• digital timestamps;

• automated laboratory outputs;

• and countless other forms of mechanically generated information

would become hearsay simply because the device itself cannot testify.

The proper focus is usually on whether the system and output have been adequately authenticated and shown to operate reliably.

7. Silas Provides a Substantial Foundation

Silas explains:

• what the system records;

• how the information is generated;

• how it is stored;

• which truck produced the data;

• recent calibration;

• absence of fault reports;

• and the inability of ordinary users to alter raw entries.

Those facts directly address integrity.

8. Kelrow Can Still Attack Reliability

Admission does not make the numbers infallible.

Kelrow may explore:

• calibration procedures;

• possible sensor error;

• synchronization;

• software issues;

• whether the correct vehicle record was downloaded;

• or any known system malfunction.

Those matters may reduce weight.

But a bare assertion that:

“computers cannot be cross-examined”

is not a persuasive ground for exclusion.

9. The Raw Telematics Data Should Likely Be Admitted

The important qualification is that any human-entered commentary accompanying the log would require separate analysis.

The facts identify only automated sensor data.

On that basis, the log is principally a real/electronic evidence and authentication problem rather than ordinary hearsay.

Neve Corbett

10. Lay Witnesses Are Not Confined to Perfectly Literal Descriptions

Ordinary witnesses may sometimes express conclusions that are simply convenient summaries of what they personally perceived.

Examples can include impressions of:

• speed;

• distance;

• apparent intoxication;

• identity;

• emotional appearance;

• or physical condition,

provided the opinion is rooted in firsthand observation and is helpful rather than speculative.

11. Neve's Estimate of Speed Is a Strong Candidate for Lay Opinion

Neve personally saw the vehicle.

Saying:

“around 25 to 30 kilometres an hour”

is an ordinary perceptual estimate.

Her long experience around commercial vehicles may improve the weight of that estimate, although the ultimate question remains whether it is genuinely based on what she observed.

Likewise:

“much faster than we normally allow near the pedestrian lanes”

is understandable shorthand for her firsthand impression.

That evidence should likely be admitted.

12. The Stopping-Distance Opinion Is Different

Neve proposes to state:

“At that speed, on damp concrete, the truck would need at least 18 metres to stop.”

That conclusion depends upon matters such as:

• vehicle mass;

• tire condition;

• braking efficiency;

• coefficient of friction;

• gradient;

• reaction time;

• load;

• and road conditions.

It purports to provide a quantitative technical conclusion.

13. Experience Alone Does Not Automatically Convert a Lay Witness Into an Expert

Neve's 18 years around trucks may be relevant to whether she could potentially possess specialized knowledge.

But Kiera has not tendered her as an expert and the facts provide no foundation showing training or methodology capable of supporting an 18-metre calculation.

A witness should not evade expert-evidence safeguards simply by characterizing technical conclusions as “experience.”

14. The Court Should Admit the Perceptual Opinion but Exclude the Technical Calculation

Neve may likely testify about:

• what she saw;

• her estimate of speed;

• and perhaps ordinary qualitative impressions of the vehicle's movement.

She should not, on this record, provide a precise stopping-distance reconstruction.

Judicial Notice

15. Judicial Notice Is Reserved for Facts That Do Not Reasonably Require Proof

A court may judicially notice facts that are:

• so notorious or generally accepted that reasonable people would not dispute them; or

• capable of immediate and accurate demonstration by resort to a source whose accuracy cannot reasonably be questioned.

The doctrine should be used cautiously because judicial notice removes the ordinary requirement of proof.

Sunset

16. The Exact Sunset Time Is a Plausible Subject of Judicial Notice

Kiera provides an official astronomical table.

Kelrow does not challenge the authenticity of that source.

The astronomical time of sunset on a specified date and at a specified place is capable of objective verification.

The court can likely judicially notice that sunset occurred at 4:41 p.m.

17. Judicial Notice of Sunset Does Not Prove Every Visibility Issue

It does not automatically prove:

• how dark the yard was;

• whether artificial lights were operating;

• cloud conditions;

• shadows from buildings;

• or what any particular witness could see.

Those remain evidentiary questions.

Judicial notice should extend only to the objectively verifiable fact.

Damp Concrete and Stopping Distance

18. The Proposed Braking Proposition Is Not an Appropriate Subject of Judicial Notice

Kiera asks the court to accept:

“A commercial truck travelling on damp concrete takes at least twice as long to stop.”

That is a technical proposition whose accuracy may depend upon numerous variables.

It is neither ordinary indisputable knowledge nor a proposition whose precise numerical content can simply be assumed.

If the point matters, it should be proven through appropriate evidence.

The request should be refused.

The Formal Admission

19. Formal Admissions Serve an Important Procedural and Evidentiary Function

A formal admission removes an admitted fact from controversy.

It allows:

• the opposing party to prepare on the basis that proof will not be required;

• witnesses and evidence to be organized accordingly;

• and trial time to be saved.

Such admissions would have little value if a party could simply ignore them whenever strategy changed.

20. Kelrow Cannot Unilaterally Treat the Admission as Non-Existent

Kelrow expressly admitted:

the driver was acting in the course of employment at all material times.

Kiera was entitled to organize her case around that concession.

New counsel cannot merely call contrary evidence and announce that the issue is open again.

21. Withdrawal Requires the Proper Process

Depending on the governing procedural framework, withdrawal may occur:

• by consent;

• or with judicial permission in appropriate circumstances.

The court would consider matters such as:

• why the admission was made;

• why withdrawal is now sought;

• whether the proposed new position has a genuine evidentiary foundation;

• prejudice to Kiera;

• whether prejudice can be cured;

• and the interests of a fair adjudication.

22. The Coffee Stop Does Not Itself Resolve the Matter

New counsel has learned one additional fact:

the driver stopped for coffee.

That does not necessarily establish that the formal admission was plainly erroneous.

More importantly for this Evidence question, Kelrow has taken none of the procedural steps needed to withdraw it.

Unless and until that occurs, the admission remains operative.

Overall Advice

23. The Evidentiary Categories Must Remain Distinct

The likely rulings are:

• Video: admit; Owen provides adequate authentication. Loss of the original phone primarily affects weight on these facts.

• Telematics: admit the authenticated machine-generated data; the “machine cannot be cross-examined” argument misconceives hearsay.

• Neve: admit her firsthand lay estimate of speed; exclude the technical 18-metre stopping-distance opinion unless an appropriate expert foundation is established.

• Judicial notice: permit notice of the objectively verifiable sunset time; refuse notice of the technical braking proposition.

• Formal admission: remains binding unless properly withdrawn; Kelrow cannot simply reopen the admitted issue at trial.

Brickam’s Suggested Marking Approach — Question Three

Issue	Marks
Video: authentication, digital copy/original issue, chain/integrity concerns and weight	5
Telematics: distinguishes machine-generated data from hearsay and analyzes authentication/system reliability	6
Neve: distinguishes permissible firsthand lay opinion from technical expert reconstruction	5
Judicial notice: applies the proper distinction to sunset and stopping-distance propositions	4
Formal admission: evidentiary effect, reliance, withdrawal and present binding status	4
Overall synthesis	1
TOTAL	25

QUESTION FOUR

20 marks — suggested time: 36 minutes

FACTS

Leander Moss is charged with armed robbery arising from a late-night robbery at a neighbourhood pharmacy.

The identity of the robber is disputed.

Police believed Leander may have been involved but initially lacked sufficient evidence to obtain a warrant to search his digital accounts.

During the investigation, Leander's former partner gave Detective Raisa Holt an old password that Leander had once used for a cloud-storage account.

Raisa used the password to access the account without judicial authorization.

For purposes of this question, assume that this search violated Leander's rights under s. 8 of the Canadian Charter of Rights and Freedoms. Do not analyze the existence of the breach.

Two weeks before the search, Raisa had received an internal legal bulletin advising investigators that private cloud accounts normally required prior judicial authorization.

She skimmed the bulletin but later says:

“I thought the fact that another person voluntarily gave me a working password made the situation different. I was trying to move quickly before anything was deleted.”

There is no evidence that Raisa deliberately falsified notes or attempted to conceal the search.

What the cloud search revealed

Raisa accessed:

• several years of personal photographs;

• private messages;

• location history;

• saved documents;

• and backup files.

She searched the account for approximately 90 minutes.

Among the files she found:

1. a photograph of Leander holding a numbered key tag marked B-417;

2. a note containing the words “Union Station lockers — lower level”; and

3. a photograph taken two days after the robbery showing a black handgun beside a distinctive grey backpack.

Police then investigated locker B-417.

Before the cloud search, police had no information connecting Leander to that locker.

Raisa prepared an affidavit seeking a warrant to search it.

Most of the grounds in the affidavit came from the cloud account.

The affidavit also referred to:

• Leander having previously visited Union Station;

• the pharmacy being approximately three kilometres away; and

• a witness describing the robber as approximately Leander's height.

Assume that, without the information obtained from the cloud account, those remaining facts would not have established grounds for the locker warrant.

The warrant was issued.

Inside B-417 police found:

• a handgun later linked to the robbery;

• the grey backpack;

• and clothing resembling that worn by the robber.

Leander seeks exclusion of both:

• the cloud-account evidence; and

• the physical evidence from the locker.

The photographs

The pharmacy clerk suffered a gunshot wound during the robbery but survived.

Leander does not dispute that the clerk was shot.

The Crown wants to introduce 14 colour photographs taken at the hospital.

Two show:

• the location of the entrance and exit wounds; and

• the general trajectory of the injury.

The remaining twelve are close-up photographs taken:

• before treatment;

• during surgical preparation;

• and immediately following surgery.

Several are extremely graphic.

The Crown says:

“The jury is entitled to understand how serious this robbery was.”

The defence responds:

“The injury is admitted. Most of these photographs add nothing except emotion.”

QUESTION

Advise the trial judge:

1. whether the cloud-account evidence and the evidence found in locker B-417 should be excluded under s. 24(2) of the Charter; and

2. how the court should deal with the Crown's proposed hospital photographs.

Do not analyze whether the police search violated s. 8. Assume that it did.

20 MARKS

THE BRICKAM EXPLANATION — QUESTION FOUR

The Section 24(2) Framework

1. Establishing a Charter Breach Does Not Automatically Determine Admissibility

Section 24(2) requires the court to decide whether, having regard to all the circumstances, admission of evidence obtained in a manner that infringed the Charter would bring the administration of justice into disrepute.

Under R v Grant, the court considers three broad lines of inquiry:

1. the seriousness of the Charter-infringing state conduct;

2. the impact of the breach on the accused's Charter-protected interests; and

3. society's interest in adjudication of the case on its merits.

The court balances them from the long-term perspective of maintaining public confidence in the justice system.

2. Section 24(2) Is Not a Punishment Mechanism

The question is not whether Raisa:

• deserves discipline;

• acted with a bad personality;

• or should personally be punished.

Nor is exclusion compensation for Leander.

The concern is the effect that admission would have on the reputation of the justice system.

Seriousness of the State Conduct

3. Raisa's Conduct Is More Serious Than an Innocent Technical Error

Two weeks earlier she received an internal bulletin advising officers that private cloud accounts ordinarily required judicial authorization.

She did not simply confront a completely novel legal question with no guidance available.

That weighs toward exclusion.

4. The Former Partner's Password Does Not Remove the Concern

Raisa says she believed a password voluntarily supplied by another person altered the situation.

The s. 8 breach is assumed.

For the s. 24(2) inquiry, the relevant point is that she chose to proceed into a highly private account without first obtaining judicial authorization despite recent contrary institutional guidance.

5. But the Facts Stop Short of Deliberate Bad Faith

There is no evidence that Raisa:

• fabricated grounds;

• knowingly lied to a court;

• concealed what she had done;

• or expressly decided that Charter requirements did not matter.

Her explanation may support a finding of:

• mistake;

• inadequate attention;

• or carelessness

rather than deliberate Charter defiance.

That moderates, but does not eliminate, the seriousness.

6. The Urgency Argument Is Weak on These Facts

Raisa says she was concerned evidence might be deleted.

But the facts do not identify:

• an imminent deletion notice;

• active destruction;

• or some immediate emergency making judicial authorization impracticable.

General investigative convenience does not strongly reduce the seriousness of proceeding without authorization.

Overall, the first Grant inquiry likely favours exclusion to a meaningful degree, though not as strongly as a deliberate or systemic breach would.

Impact on Leander’s Protected Interests

7. The Privacy Intrusion Was Extensive

This was not a brief inspection of a single file.

Police accessed:

• years of photographs;

• private communications;

• location history;

• documents;

• and backups.

Raisa searched for approximately 90 minutes.

The account contained a broad digital record of Leander’s private life.

8. Password Protection Reinforces the Privacy Interest

The account was not publicly accessible.

Police needed a password to enter it.

The fact that a former partner happened to know an old credential does not transform the cloud account into a public space.

The assumed s. 8 infringement therefore had a substantial practical impact.

9. The Second Grant Inquiry Strongly Favours Exclusion

The intrusion was:

• informationally broad;

• prolonged;

• and directed toward a private personal account.

This is not a minimal or peripheral Charter impact.

Society’s Interest in Adjudication on the Merits

10. The Evidence Is Highly Reliable

The photographs, key tag, gun, backpack and clothing are tangible or digital evidence whose reliability does not depend upon coercing an unreliable statement from Leander.

That supports admission under the third Grant inquiry.

11. The Evidence Is Also Important to a Serious Prosecution

The handgun is linked to the robbery.

The backpack and clothing connect directly to the alleged offence.

Identity is disputed.

Excluding the evidence may materially weaken the Crown's case.

Society has a strong interest in adjudicating a serious armed robbery using reliable evidence.

The third inquiry therefore favours admission.

12. Seriousness of the Offence Does Not Override the Charter

The more serious the charge, the stronger society's interest in deciding it correctly.

But seriousness cannot become an automatic rule that Charter violations matter less whenever the allegation is grave.

Public confidence also depends on courts maintaining constitutional standards in serious cases.

The Locker Evidence

13. A Subsequent Warrant Does Not Necessarily Break the Connection

The Crown cannot simply say:

“The gun was seized under a warrant, so the earlier breach no longer matters.”

Section 24(2) can extend to derivative evidence sufficiently connected to the Charter infringement.

The question is whether the later evidence was obtained in a manner connected with the breach.

14. The Causal Connection Here Is Strong

Before searching the cloud account, police had no information linking Leander to locker B-417.

The unlawful search revealed:

• the numbered key;

• the locker location;

• and the photograph of the handgun and backpack.

Those discoveries drove the warrant application.

15. The Independent Grounds Were Insufficient

The facts expressly state that, stripped of the unlawfully obtained cloud information, the remaining facts would not have established grounds for the warrant.

That matters greatly.

This is therefore not a case where police had an independent lawful investigative path that would have produced the same warrant regardless of the breach.

16. The Warrant Cannot Be Treated as an Evidentiary Reset Button

Judicial authorization is ordinarily an important constitutional safeguard.

But where the authorization itself depends materially on information obtained through the prior breach, the warrant does not automatically cleanse the derivative evidence.

The locker evidence remains closely connected to the original infringement for s. 24(2) purposes.

Overall Grant Balance

17. There Are Real Considerations on Both Sides

In favour of exclusion:

• recent guidance pointed toward obtaining authorization;

• the police nevertheless entered a deeply private account;

• the intrusion was extensive;

• and the physical evidence was directly derived from the search.

In favour of admission:

• the officer did not act dishonestly;

• the evidence is highly reliable;

• it is important to the truth-seeking process;

• and the prosecution concerns a serious violent offence.

18. Exclusion Is a Strong Result on These Facts

The combination of:

• meaningful state fault;

• a very substantial privacy intrusion;

• and a direct causal pathway to the locker

gives Leander a strong s. 24(2) argument.

A court could reasonably conclude that admitting both the cloud material and its direct fruits would signal insufficient concern for the constitutional requirement of prior judicial authorization.

The fact that the evidence is reliable and important is significant, but it does not necessarily overcome the first two Grant inquiries.

A well-reasoned answer could acknowledge some uncertainty, particularly in characterizing Raisa's state conduct, but should not treat admission as automatic merely because the gun is reliable.

The Hospital Photographs

19. This Is a Common-Law Evidentiary Balancing Question, Not a Charter Question

The photographs were not obtained through the assumed Charter breach.

Their admissibility therefore raises the ordinary judicial discretion to prevent evidence whose prejudicial effect outweighs its legitimate probative value.

20. Graphic Evidence Is Not Inadmissible Merely Because It Is Disturbing

A photograph does not become inadmissible simply because:

• a crime was violent;

• blood is visible;

• or jurors may find it unpleasant.

Graphic evidence may be necessary to establish or explain a genuinely disputed fact.

21. But Repetition Can Add Prejudice Without Adding Much Proof

Here Leander concedes that the clerk was shot.

Two photographs show:

• entry and exit wound location;

• and general trajectory.

Those may assist the jury with relevant physical evidence.

The remaining twelve are largely:

• close-ups;

• surgical images;

• and repeated depictions of an injury whose existence is not disputed.

22. “The Jury Should See How Serious It Was” Is Not Enough

Evidence cannot properly be tendered simply to provoke:

• anger;

• disgust;

• sympathy;

• or punishment-oriented reasoning.

The court should identify what each photograph actually proves.

If five photographs establish no more than one photograph, the incremental probative value decreases while emotional prejudice and needless consumption of time increase.

23. A Tailored Ruling Is Preferable to All-or-Nothing Treatment

The court can admit the small number of photographs that materially assist the factual inquiry and exclude the rest as:

• cumulative;

• unnecessarily inflammatory;

• or disproportionate to their additional evidentiary value.

On these facts, admitting approximately the two medically useful overview photographs while excluding most or all of the remaining graphic images would be a sensible exercise of discretion.

Overall Advice

24. Different Exclusionary Rules Serve Different Functions

The trial judge should:

• apply the Grant framework to the cloud evidence and its derivative fruits;

• recognize the particularly strong causal connection between the unlawful search and locker warrant;

• likely give substantial weight to exclusion because of both the privacy impact and state conduct, while acknowledging the strong merits interest in reliable physical evidence; and

• separately exercise the ordinary evidentiary discretion over the hospital photographs, admitting only those whose legitimate probative contribution justifies their prejudicial effect.

Brickam’s Suggested Marking Approach — Question Four

Issue	Marks
Correctly states and organizes the Grant s. 24(2) framework	4
Seriousness of state conduct: recent guidance, claimed mistake, absence of bad faith and weak urgency justification	4
Impact on Leander’s privacy and other Charter-protected interests	3
Society’s interest in adjudication on the merits: reliability, importance and seriousness	2
Derivative locker evidence: causal connection, warrant based on tainted information and lack of independent grounds	3
Hospital photographs: common-law probative/prejudicial balancing, cumulative evidence and tailored admission	3
Reasoned overall conclusion	1
TOTAL	20

Overall Mark Allocation

Question	Marks
Question One — Sexual-Activity Evidence and Private Records	30
Question Two — Witnesses, Spousal Evidence and Privilege	25
Question Three — Real Evidence and Mechanics of Proof	25
Question Four — Exclusionary Discretion	20
TOTAL	100