Instructions Specific to This Exam

1. This examination contains one question worth a total of 100 marks.

2. You will be assessed primarily on your knowledge of the relevant provisions of the Criminal Code, the Canadian Charter of Rights and Freedoms, the assigned cases, and the other materials identified in the Canadian Criminal Law syllabus. You will also be assessed on your ability to identify the material criminal-law issues raised by the facts, state the governing rules accurately, and apply those rules to the competing arguments available to the parties.

3. No marks are awarded for merely reproducing or summarizing the facts. Your answer should identify the relevant legal issues, state the applicable legal principles, and explain how those principles apply to the particular facts.

4. Do not provide a general essay on criminal law. Do not work mechanically through every possible offence, defence or Charter right. Address the issues reasonably raised by the facts.

5. Full case citations are not required for authorities contained in the assigned materials. Where relevant, identify the case or Criminal Code provision with sufficient precision to demonstrate knowledge of the governing law.

6. You are asked to prepare a memorandum of law. You do not need to spend examination time constructing formal headings such as “To,” “From,” “Date” or “Re.” Marks are awarded for substantive analysis.

7. In assessing criminal responsibility, distinguish carefully between:

   • the liability of the person who personally commits an offence;

   • liability as a party under the Criminal Code;

   • counselling liability;

   • liability for an offence committed in carrying out a common unlawful purpose; and

   • the separate fault requirements applicable to particular offences.

8. Where a defence is reasonably raised by the evidence, address whether it has the required air of reality, the elements of the defence, the applicable burden of proof, and the effect of the defence if successful.

9. In addressing homicide, distinguish the Crown’s obligation to prove causation from its obligation to prove the fault required for murder. Do not assume that proof that an accused caused a death necessarily establishes murder.

10. Where intoxication is relevant, distinguish simple intoxication from extreme intoxication akin to automatism and distinguish offences of specific intent from offences of general intent. Unless otherwise indicated by the facts, do not assume that extreme intoxication is established.

11. In addressing the police interaction with Maeve Corbett, consider the Charter rules relating to detention, the right to counsel and exclusion of evidence. Do not address the separate common-law confessions or voluntariness rule.

12. Unless specifically relevant to an issue raised below, do not address sentencing, bail, disclosure, evidentiary admissibility doctrines, or professional responsibility.

13. Write a clear and organized answer in complete sentences.

QUESTION

FACTS

Maeve Corbett worked for five years as a logistics manager at Aureon Microsystems Ltd. (“Aureon”), a manufacturer of specialized navigation processors used in autonomous industrial equipment.

Maeve left Aureon following a dispute with senior management.

Several months later, she learned from a former colleague that Aureon would receive a shipment of prototype processors worth approximately $1.4 million. The processors were small enough to fit inside two large duffel bags and were being stored for one week in a secured room at Aureon’s warehouse before being transferred to a customer.

Maeve knew the layout of the warehouse, the location of its cameras and the general overnight staffing arrangements.

She contacted Rafi Lenox, whom she had known for several years.

According to later text messages, Maeve wrote:

“There is over a million sitting in one room and almost nobody there overnight. We take it once and we are done.”

Rafi replied:

“I’m in if you can get me through the doors.”

Maeve told Rafi that the overnight supervisor usually remained in an office at the opposite end of the warehouse.

She also wrote:

“Nobody needs to get hurt. If somebody sees you, scare them and get out.”

Rafi replied:

“Fine. In and out.”

Maeve recruited Nolan Greer to drive.

Nolan knew that Maeve and Rafi intended to steal valuable processors from Aureon.

He agreed to drive Rafi to the warehouse, wait nearby with the engine running and transport the processors after the theft.

Nolan told Maeve:

“I’ll drive. I’m not fighting anybody and I’m not carrying anything.”

Maeve responded:

“You won’t have to.”

Three nights before the eventual theft, Rafi made an unsuccessful attempt to enter the warehouse.

At approximately 1:30 a.m., he arrived alone carrying two empty duffel bags and a pry bar.

He cut through a chain securing a gate in the outer perimeter fence, crossed the employee parking area and approached the rear loading entrance.

Maeve had previously given him an old Aureon access card that she believed would still operate.

Rafi swiped the card twice.

Both attempts were rejected.

A warning light on the door began flashing.

Rafi then inserted the end of the pry bar between the door and frame but stopped when he saw the headlights of a vehicle entering the parking lot.

He fled.

The vehicle was a cleaning contractor.

Rafi later texted Maeve:

“I was at the door. Card is dead. Need another way in.”

Maeve replied:

“Leave it with me.”

No property was taken that night.

Maeve then contacted Tess Arbour, a technician employed by the private company responsible for maintaining Aureon’s electronic security system.

Tess had administrator access that allowed her temporarily to suspend individual alarm zones while performing maintenance.

Tess refused when Maeve first asked her for assistance.

Maeve responded by sending Tess a photograph of Tess’s younger brother, Lucas, leaving his workplace.

A second message stated:

“You give me an eight-minute maintenance window tomorrow night or he gets put in hospital.”

Tess initially believed Maeve was bluffing.

Maeve then initiated a video call.

During the call, Tess could see a man she did not recognize standing across the street from Lucas’s workplace holding what appeared to be a metal baton.

Maeve said:

“He is there now. I need the alarm down tomorrow at 1:15. If you go to police before this is finished, Lucas pays for it.”

Tess asked:

“You’re just stealing equipment?”

Maeve replied:

“Yes. Nobody is getting hurt if everyone does what they’re supposed to.”

Tess knew that disabling the alarm would facilitate a theft.

She did not know that anyone intended to use a weapon.

She agreed.

The following night, shortly before leaving for Aureon, Rafi met Nolan beside Nolan’s van.

Nolan saw a handgun tucked into Rafi’s waistband.

Nolan asked:

“Why do you have that?”

Rafi replied:

“Because I’m not losing a million-dollar load over some security guy getting brave.”

Nolan said:

“Maeve said nobody was getting hurt.”

Rafi responded:

“Then nobody should try anything.”

Nolan considered leaving.

He later says he remained because he believed Rafi was carrying the gun only to frighten anyone who interfered.

Nolan drove Rafi to the warehouse.

During the drive, Rafi drank from a bottle of whisky.

He had also taken two clonazepam tablets earlier that evening.

Nolan says Rafi appeared “buzzed” and unusually talkative but was able to give directions, operate his phone and discuss the plan coherently.

At 1:15 a.m., Tess logged into Aureon’s security system from her apartment and suspended the rear-door alarm for eight minutes.

She immediately began typing an anonymous report into the police online tip portal but stopped when she remembered Maeve’s warning about Lucas.

Four minutes later, Tess called 911 from a blocked number and said:

“There is a robbery happening at Aureon Microsystems. Send somebody now.”

She disconnected without giving her name.

Meanwhile, Rafi entered through the rear door using a maintenance code Maeve had obtained through Tess.

Maeve remained at home and accessed an old remote camera account that Aureon had failed to disable after her employment ended.

She could see portions of the warehouse.

She texted Rafi:

“Hall clear. Supervisor still in front office. Go.”

Rafi entered the secured storage room, placed the prototype processors into the two duffel bags and began moving toward the loading area.

The overnight supervisor, Sonia Devlin, left her office after hearing a metal cart fall.

Sonia carried a heavy rechargeable flashlight.

When she entered the warehouse aisle, she saw Rafi carrying the bags.

She shouted:

“Put those down. Police are coming.”

Rafi continued toward the loading door.

Sonia moved in front of him and raised the flashlight.

Rafi told her:

“Get out of the way.”

Sonia answered:

“Drop the bags.”

Rafi took two steps backward.

The open loading door was approximately three metres behind him.

Sonia stepped toward him and swung the flashlight.

It struck Rafi on the upper arm.

Rafi drew the handgun.

Sonia stopped advancing but continued holding the flashlight at shoulder height.

Rafi says Sonia began moving toward him again.

The warehouse video is partially obstructed by shelving and does not clearly show whether she took another step.

Rafi fired one shot from approximately three metres away.

The bullet struck Sonia in the abdomen.

She collapsed immediately.

Rafi picked up one of the duffel bags he had dropped and ran toward the loading door.

Maeve had watched part of the confrontation remotely.

Approximately 20 seconds before the gunshot, she texted Rafi:

“I can see the gun. Put it away unless you need it. We are NOT leaving empty-handed again.”

Immediately after the gunshot, she wrote:

“Get out NOW.”

Nolan had moved the van closer to the loading area after receiving a message from Rafi stating:

“Bring van around.”

He heard a loud sound from inside the warehouse but says he did not immediately recognize it as a gunshot.

Rafi emerged carrying one bag.

Nolan saw the handgun in Rafi’s hand and blood on his clothing.

Nolan said:

“What did you do?”

Rafi replied:

“Drive.”

Nolan drove away with Rafi and the processors.

Police and paramedics arrived several minutes later.

Sonia was still alive.

She underwent emergency surgery for internal bleeding.

The surgeon successfully repaired the direct injuries caused by the bullet.

For several days, Sonia remained largely immobile in hospital.

Hospital protocol required administration of anticoagulant medication to patients with her injuries unless contraindicated.

Because of a clerical error, the medication was never ordered.

Four days after surgery, Sonia developed a pulmonary embolism and died.

The pathologist concludes that:

• the gunshot wound and resulting surgery caused the prolonged immobility that placed Sonia at significant risk of a blood clot;

• the embolism directly caused her death; and

• proper administration of the anticoagulant would probably have prevented the fatal clot.

The pathologist nevertheless describes the shooting as a “substantial medical cause of the chain of events culminating in death.”

The hospital acknowledges that the medication omission fell below the expected standard of care.

Rafi was arrested approximately 90 minutes after the shooting.

A blood sample obtained pursuant to lawful authority showed a blood-alcohol concentration consistent with significant intoxication. Testing also confirmed clonazepam within a therapeutic but sedating range.

A toxicologist retained by the defence concludes that the combination could have impaired Rafi’s judgment, inhibition and assessment of risk.

The toxicologist does not suggest that Rafi was unconscious, acting involuntarily or in a state of automatism.

Security video from the warehouse shows Rafi entering the access code correctly, selecting the correct storage room, placing the specified processors in the bags and navigating directly to the planned exit.

Rafi says he remembers the confrontation with Sonia.

He says:

“I wanted her to stop coming at me. I aimed low. I never wanted to kill her.”

He says he believed Sonia was about to strike him again with the metal flashlight.

The Crown has charged Rafi with, among other offences, robbery and second-degree murder. It has also charged him in relation to his unsuccessful entry three nights earlier.

Maeve has been charged with robbery as a party and with second-degree murder arising from Sonia’s death.

The Crown alleges that Maeve counselled and actively assisted the robbery and that, by the time of the offence, she knew violence with a firearm was a probable consequence of carrying out the plan.

Maeve denies ever wanting anyone injured.

She relies heavily on her messages telling Rafi that nobody needed to get hurt and instructing him to put the gun away.

The Crown points to her knowledge of the firearm, her continued direction of the operation and her message that they were “NOT leaving empty-handed again.”

Nolan has also been charged with robbery as a party and second-degree murder.

The Crown argues that he knowingly drove the participants to and from an armed theft and continued participating after learning that Rafi was carrying a loaded handgun for use if someone resisted.

Nolan responds that he agreed only to assist a theft, expressly rejected violence and believed the firearm would be used, at most, to frighten a security employee.

Tess has been charged as a party to the robbery.

The Crown alleges that she deliberately disabled Aureon’s security system for the purpose of helping the perpetrators enter undetected.

Tess accepts that she knew exactly what her actions would facilitate.

She relies on the threat to Lucas.

She says she believed the man she saw outside Lucas’s workplace would seriously injure him if she refused Maeve’s demand or immediately contacted police.

The Crown responds that Tess had alternatives.

She was in her own apartment.

She had access to a telephone.

The threatened conduct was not taking place in her physical presence.

She ultimately did contact police, demonstrating that contacting the authorities was possible.

Tess replies that the threat was immediate, that the assailant appeared already positioned to attack Lucas and that she reasonably believed an immediate police call before disabling the alarm could cause the threatened violence before police could protect him.

Police learned of Maeve’s involvement principally from Tess.

Tess voluntarily attended a police station the morning after the robbery, provided Maeve’s messages and described the threat involving Lucas.

Two detectives then attended Maeve’s condominium.

Maeve answered the door.

The detectives told her:

“You are not under arrest right now, but we need you to come to the station with us and sort this out.”

Maeve asked:

“Do I have a choice?”

One detective replied:

“We need to get your side before we make any decisions. Let’s not make this difficult.”

The detectives retained Maeve’s phone and keys while she put on her shoes.

They drove her to the station in the rear seat of an unmarked police vehicle.

She was not handcuffed.

At the station, Maeve was taken to an interview room.

The door was closed.

A detective told her:

“Sit tight. Someone will be with you shortly.”

After approximately 25 minutes, Maeve knocked on the door and asked an officer in the hallway whether she could leave.

The officer responded:

“The detectives need to speak with you first.”

Maeve was not advised of a right to counsel.

Approximately 15 minutes later, questioning began.

The detectives again told Maeve that she was “not formally under arrest.”

Maeve admitted that she knew Rafi and Nolan intended to steal the processors and that she had provided information about Aureon’s warehouse.

She initially denied knowing Rafi had a firearm.

A detective then told her that investigators had warehouse-camera evidence showing Rafi with a gun before the shooting.

Maeve responded:

“Fine. I saw it on the camera before he went in. I told him to put it away. I never told him to shoot anybody.”

After approximately two hours at the station, police formally arrested Maeve and immediately advised her of her right to counsel.

The police had not obtained any additional incriminating information during those two hours apart from Maeve’s own statements.

The Crown intends to use her admissions at trial.

For purposes of this examination, assume that Tess’s information and messages gave police at least reasonable grounds to suspect Maeve’s involvement before they attended her condominium.

Do not address the common-law voluntariness rule governing statements to persons in authority.

QUESTION

The senior partner at your firm asks you to prepare a brief but comprehensive memorandum addressing the significant Canadian criminal-law issues arising from the full sequence of events.

Your memorandum should assess the potential criminal responsibility of Rafi Lenox, Maeve Corbett, Nolan Greer and Tess Arbour, the principal defences reasonably raised by the evidence, the homicide and causation issues arising from Sonia Devlin’s death, and the Charter implications of the police treatment of Maeve.

Where an accused may be guilty of a different or lesser offence if the Crown cannot establish the most serious charge, explain the distinction.

Do not merely list offences, defences or statutory provisions. Apply the governing Criminal Code provisions and assigned Canadian authorities to the facts and assess the strongest competing arguments.

100 MARKS