NCA Canadian Criminal Law - Practice Exam B Questions
Instructions Specific to This Exam
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This examination contains four questions worth a total of 100 marks. Each question is worth 25 marks.
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A suggested time of 45 minutes per question is provided. Candidates remain responsible for managing their examination time.
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You will be assessed primarily on your knowledge of the relevant provisions of the Criminal Code, the assigned cases and the principles contained in the Canadian Criminal Law materials, together with your ability to identify the legal issues raised by the facts and apply the governing rules to those facts.
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No marks are awarded for merely reproducing or summarizing the facts. Use the facts as part of your legal analysis.
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Each question is independent. Do not import facts from one question into another.
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Where an offence is set out in the question, identify its actus reus and mens rea from the statutory language and applicable principles rather than assuming that every offence has the same fault requirement.
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Distinguish carefully among:
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subjective intent;
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knowledge;
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wilful blindness;
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recklessness;
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objective negligence; and
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strict or absolute liability.
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Where a regulatory offence is alleged, determine whether it is:
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a mens rea offence;
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a strict liability offence; or
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an absolute liability offence,
and identify the consequences of that classification.
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Where criminal negligence is alleged, distinguish ordinary negligence from the marked and substantial departure required by criminal negligence.
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Where consent forms part of the actus reus of an offence, analyze whether legally effective consent existed at the time of the relevant conduct. Do not assume that prior consent, silence or an established relationship automatically supplies current consent.
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Where an accused relies upon a mistaken belief in consent, distinguish:
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an actual belief in communicated consent;
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recklessness or wilful blindness;
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and any statutory requirement to take reasonable steps.
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Where automatism is raised, distinguish between:
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mental disorder automatism; and
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non-mental disorder automatism.
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Address the legal consequences of that classification.
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In considering police conduct, identify whether the impugned investigative step constitutes a search or seizure under s. 8 of the Charter, whether the search was authorized by law, and whether the manner of the search was reasonable.
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Where entrapment is alleged, distinguish between:
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providing an opportunity to commit an offence without the necessary reasonable suspicion or bona fide inquiry; and
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inducing the commission of an offence.
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Where evidence is obtained following a Charter breach, consider the applicable exclusionary principles. Do not assume that every Charter breach automatically results in exclusion.
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Distinguish an application for exclusion of evidence from an application for a stay of proceedings for entrapment.
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Where disclosure is in issue, distinguish material in the possession or control of the prosecution and police from third-party records. Unless otherwise stated, assume ordinary Crown disclosure principles apply.
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Full case citations are unnecessary. The case name and relevant Criminal Code provision are sufficient.
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Unless required by the facts, do not address sentencing, appeals, professional responsibility or evidence doctrines outside the assigned Criminal Law syllabus.
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Write clear and organized answers in complete sentences.
QUESTION ONE
25 marks — suggested time: 45 minutes
FACTS
Caspian Sterilization Systems Inc. (“Caspian”) operates three facilities that sterilize surgical equipment for hospitals.
Its Ontario facility uses large pressure vessels containing a highly reactive sterilizing agent known as VX-8.
A provincial regulation provides:
42(1) Every operator of a VX-8 pressure vessel shall ensure that an automatic mechanical pressure-relief interlock is operational whenever the vessel is being used.
The same statute creates the following offence:
81(1) Every person who contravenes a requirement of this Regulation is guilty of an offence and is liable on conviction to a fine not exceeding $500,000 or imprisonment for a term not exceeding six months, or both.
Neither provision contains the words:
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knowingly;
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intentionally;
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negligently;
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wilfully; or
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absolutely liable.
Caspian’s mechanical interlock failed during scheduled maintenance.
The manufacturer advised that a replacement would take approximately six weeks.
Caspian’s plant manager, Ronan Quist, telephoned Alessia Ford, a Ministry compliance officer whose job included answering regulated companies’ questions about the VX-8 requirements.
Ronan explained that Caspian had installed a software alarm that:
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continuously monitored vessel pressure;
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warned employees if pressure approached the danger threshold; but
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did not automatically release pressure or shut down the vessel.
Ronan asked:
“Can we legally operate temporarily with the software alarm instead of the mechanical interlock?”
Alessia replied by email:
“Based on what you have described, yes. The Ministry considers an automated pressure-monitoring system acceptable as an interim measure while a replacement interlock is being obtained.”
Ronan forwarded the email to Caspian’s vice-president of operations, Devran Holt.
Devran asked whether the arrangement was safe.
Caspian’s senior engineer responded:
“It complies with the Ministry email, but it is not functionally equivalent. An alarm still depends on somebody reacting. If an operator misses the warning, nothing mechanically prevents overpressure.”
The engineer recommended shutting down the vessel until the interlock was replaced.
Devran refused.
The Ontario facility supplied approximately 28% of Caspian’s national sterilization capacity.
Closing the vessel would require the company to cancel several hospital contracts.
Devran wrote:
“The regulator says we can run. Keep the replacement order open and make sure staff watch the alarm.”
Caspian then introduced a procedure requiring an operator to remain at the control station whenever the vessel was pressurized.
For the first five weeks:
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operators received additional training;
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two supervisors audited the logs every day; and
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the alarm functioned properly.
During the sixth week, a supervisor permitted one operator to monitor two pressure vessels at the same time because another employee had called in sick.
While the operator was responding to a warning on the second vessel, the VX-8 vessel alarm activated.
Nobody responded for approximately four minutes.
The vessel ruptured.
An employee, Keisha Marr, suffered serious injuries.
The Ministry later took the position that Alessia had interpreted the regulation incorrectly.
Its Director stated:
“A software alarm was never capable of satisfying the requirement for a mechanical pressure-relief interlock.”
Caspian and Ronan are charged under s. 81(1).
Police also investigate possible criminal negligence causing bodily harm under ss. 219 and 221 of the Criminal Code.
The Crown alleges that Devran’s decision to continue operating despite the engineer’s warning can be attributed to Caspian.
Caspian responds that:
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it sought and followed government advice;
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it implemented extensive interim precautions;
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thousands of cycles were completed safely before the accident; and
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one supervisor unexpectedly departed from the company’s staffing procedure.
Ronan says:
“If the Ministry officer responsible for answering these questions tells me the system is lawful, I should not go to jail because her legal interpretation was wrong.”
Devran says the issue is at most ordinary workplace negligence.
QUESTION
Advise Caspian, Ronan and Devran concerning:
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the proper classification of the provincial regulatory offence;
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the availability of due diligence and officially induced error;
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any constitutional issue arising from the possibility of imprisonment; and
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the potential criminal-negligence liability of Devran and Caspian for Keisha’s injuries.
25 MARKS
QUESTION TWO
25 marks — suggested time: 45 minutes
FACTS
Amelie Verran and Cole Dey had been dating for approximately eight months.
They did not live together.
One Saturday evening, Amelie attended Cole’s apartment after dinner.
They drank wine and watched a movie.
Amelie consumed approximately two glasses of wine.
She was not seriously intoxicated.
Cole drank approximately the same amount.
During the movie they kissed consensually.
Cole placed his hand under Amelie’s shirt.
Amelie moved his hand away and said:
“Not tonight. I’m exhausted.”
Cole replied:
“Okay.”
Approximately an hour later, Amelie decided to stay overnight.
She took a prescribed sleep medication.
Before going to sleep, she told Cole:
“You can cuddle me. Just let me sleep.”
Cole says Amelie then smiled and added:
“You know I usually like waking up beside you.”
Amelie does not remember making the second statement.
Three months earlier, Amelie had sent Cole a text message after a weekend trip stating:
“I actually liked waking up when you were touching me. You don’t always have to wake me first.”
On another occasion, however, Amelie had said:
“If I’m asleep, don’t assume anything. Wake me up.”
Cole retained both messages on his phone.
At approximately 2:00 a.m., Amelie was asleep.
Cole began touching her waist over her clothing.
She did not wake.
He then placed his hand under her shirt and touched her chest.
Amelie remained asleep.
Cole says he believed the earlier text meant she had agreed in advance to that type of touching.
Approximately five minutes later, Amelie began to wake.
She appeared groggy.
Cole kissed her and moved his hand lower along her body.
Amelie turned away.
Cole asked:
“You okay?”
Amelie made a quiet sound that Cole describes as:
“something like ‘mm-hmm.’”
She did not otherwise respond.
Cole resumed intimate touching.
Amelie later says she remembers waking briefly and realizing what was occurring but was:
“half asleep and frozen.”
She says she did not agree.
About a minute later she became more alert, pushed Cole’s hand away and said:
“Stop.”
Cole stopped immediately.
The following morning Amelie was upset.
Cole said:
“I genuinely thought you were okay with it. You told me before that you liked waking up that way, and when I asked you last night you said yes.”
Amelie contacted police.
Cole is charged with sexual assault.
He proposes to testify that:
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Amelie had consented to similar activity in the past;
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the old text authorized touching while asleep;
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her sound after he asked if she was okay communicated consent;
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he stopped as soon as she clearly said no; and
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he honestly believed the activity was consensual.
QUESTION
Advise the Crown and Cole concerning the actus reus and mens rea of sexual assault, the legal significance of Amelie’s earlier communications and conduct, and the availability of a defence of mistaken belief in communicated consent.
25 MARKS
QUESTION THREE
25 marks — suggested time: 45 minutes
FACTS
Marcel Orin, age 34, works as an aircraft mechanic.
He has no criminal record.
As a child, Marcel occasionally sleepwalked.
His last documented episode occurred when he was 13.
For more than 20 years, there were no known incidents.
In January, Marcel and his spouse had their first child.
For several weeks Marcel slept only three to four hours each night.
His family doctor prescribed a short course of a sleep medication.
Marcel took the prescribed dose exactly as directed.
The medication information sheet warned that:
“rare episodes of complex sleep behaviour, including walking or other activities while not fully conscious, have been reported.”
Marcel read the sheet.
He later told police:
“I saw the warning, but I thought that meant getting up and making food or something. I never imagined violence.”
On a Friday evening Marcel worked a 12-hour shift.
He returned home shortly after 10:00 p.m., took one prescribed tablet and went to sleep.
At approximately 2:30 a.m., surveillance video from his condominium hallway shows Marcel leaving his apartment.
His eyes are open.
He is barefoot.
He walks slowly down the hallway carrying a flashlight.
His neighbour, Harold Sen, returns home and encounters Marcel near the elevator.
Harold says:
“Marcel, are you okay?”
Marcel does not answer.
Harold touches Marcel’s shoulder.
Marcel suddenly strikes Harold twice with the flashlight.
Harold suffers a fractured wrist while shielding himself.
Marcel then walks back to his apartment, leaves the flashlight beside the front door and returns to bed.
His spouse says Marcel appeared:
“awake but completely blank.”
Marcel remembers nothing between going to bed and waking at approximately 6:30 a.m.
Police charge him with assault causing bodily harm.
Two psychiatrists testify.
Dr. Elise Warrick — Defence Expert
Dr. Warrick concludes that Marcel was experiencing a complex parasomnia.
She says:
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his movements were automatic rather than consciously directed;
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severe sleep deprivation materially increased the risk;
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the prescribed medication may also have acted as an external trigger;
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childhood sleepwalking increases susceptibility but does not necessarily establish a continuing psychiatric disease;
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if Marcel avoids the medication and maintains adequate sleep, recurrence is unlikely.
She describes the probability of recurrence as:
“low, though not impossible.”
Dr. Harlan Xu — Crown Expert
Dr. Xu agrees Marcel may not have been consciously directing his movements.
He says, however, that:
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complex parasomnia reflects an underlying disorder of sleep regulation;
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the childhood history indicates an internal predisposition;
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sleep deprivation and medication merely triggered that predisposition;
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Marcel remains capable of another episode under stress; and
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the conduct should therefore be treated as resulting from a disease of the mind.
Dr. Xu also notes that Marcel read the medication warning before taking the tablet.
The Crown argues:
“This was not some external blow to the head causing a one-time involuntary movement. Marcel had an internal vulnerability and knew the medication could cause complex behaviour.”
The defence responds:
“There is no criminal act at all if Marcel’s body moved without conscious control. A rare medication-triggered sleep episode should not turn him into a mentally disordered offender.”
Assume that there is sufficient expert evidence to place automatism in issue.
QUESTION
Advise the Crown and Marcel concerning:
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the voluntariness requirement;
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the distinction between mental disorder automatism and non-mental disorder automatism;
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the significance of Marcel’s childhood history, medication, sleep deprivation and recurrence risk; and
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the legal consequences of each possible classification.
25 MARKS
QUESTION FOUR
25 marks — suggested time: 45 minutes
FACTS
Police in Calgary are investigating online sales of counterfeit prescription opioids.
The pills have caused several overdoses because some contain fentanyl.
Investigators learn that many transactions are arranged through an encrypted online discussion forum called PrairieMarket.
PrairieMarket contains approximately 18,000 registered accounts.
Some users discuss drugs.
Others discuss unrelated topics.
Police create an undercover account called MedBuyer88.
An officer searches PrairieMarket for terms associated with opioid sales.
One account, StoneRaven, has posted:
“People paying pharmacy prices are getting robbed. Better options are everywhere if you know who to ask.”
The account has also posted photographs of sealed pill bottles.
None of the posts expressly offers drugs for sale.
An anonymous email sent to police one week earlier stated:
“StoneRaven sells fake oxy around Calgary.”
The email identifies no source for the allegation.
Police conduct no further investigation of StoneRaven before the undercover officer sends the account a private message:
“Need 100 oxy. Can meet tonight. $1,500 cash.”
StoneRaven responds:
“Who told you I sell?”
MedBuyer88 replies:
“Nobody. Saw your posts. If you can help, I’m buying.”
StoneRaven says:
“Maybe. Not 100. Could do 40.”
After several more messages, StoneRaven agrees to sell 40 pills for $700.
Police do not yet know StoneRaven’s identity.
Investigators obtain PrairieMarket login records and learn that the account recently logged in from internet protocol address 24.81.77.19.
Without obtaining a production order or warrant, an officer emails the internet service provider:
“Urgent police investigation. Please identify the subscriber associated with this IP address at 8:42 p.m. yesterday.”
The provider responds that the account belongs to Jonah Ferrell.
Police use Jonah’s identity, address and the PrairieMarket messages to obtain a warrant to search Jonah’s condominium.
During the search they find:
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380 counterfeit tablets;
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a pill press;
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fentanyl powder; and
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Jonah’s laptop.
The laptop automatically logs into the StoneRaven account.
Police arrest Jonah.
Separately, another suspected buyer, Rena Kaur, is arrested after leaving Jonah’s building.
Police lawfully search Rena’s phone incident to her arrest and find a private message conversation between Rena and StoneRaven discussing previous drug purchases.
Investigators photograph the entire conversation.
Jonah seeks to challenge the police access to those messages even though they were found on Rena’s device.
Two weeks before trial, Jonah’s counsel learns for the first time that the police had created a document entitled:
PrairieMarket Undercover Operational Note
The note records that, before sending the initial purchase offer, the undercover officer wrote:
“No verified information connecting StoneRaven to an actual sale. Will message directly to see whether account is willing to transact.”
The Crown had not disclosed the note.
A prosecutor explains:
“We considered it an internal operational document and not relevant to whether Jonah actually possessed and sold the pills.”
Jonah now argues that:
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obtaining his IP-address information without prior judicial authorization violated s. 8;
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he has a reasonable expectation of privacy in his private messages found on Rena’s phone;
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the police entrapped him by offering to purchase drugs before they had reasonable suspicion;
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the operational note should have been disclosed; and
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all charges should therefore be stayed or the evidence excluded.
QUESTION
Advise Jonah and the Crown concerning:
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the s. 8 issues arising from the IP-address request and the messages obtained from Rena’s phone;
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the effect of any s. 8 breach on the evidence later seized from Jonah’s condominium;
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Jonah’s entrapment argument;
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the Crown’s disclosure obligation concerning the operational note; and
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the appropriate remedies for any violations established.
25 MARKS