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 Canadian cases, evidentiary principles and other assigned materials identified in the Evidence syllabus, together with your ability to recognize the evidentiary 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 purpose for which particular evidence is tendered, determine whether an exclusionary rule applies, state the governing test and apply it closely to the facts.

4. Do not provide a general essay on the law of evidence or work mechanically through every evidentiary doctrine in the syllabus. 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 evidentiary principle 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 analyzing each item of evidence, distinguish carefully between:

   • threshold relevance;

   • admissibility;

   • the particular purpose for which the evidence may be used;

   • any applicable exclusionary rule;

   • discretionary exclusion;

   • weight; and

   • any limiting or cautionary instruction that may be required if the evidence is admitted.

8. Where an out-of-court statement is tendered, determine whether it is actually being offered for the truth of its contents. If it is hearsay, consider both any recognized exception and, where applicable, the principled requirements of necessity and threshold reliability. Where a statement contains another out-of-court statement, analyze each level separately.

9. Do not treat bad-character or prior-misconduct evidence as admissible merely because it appears relevant. Identify the precise non-propensity inference for which it is tendered and address the balance between probative value and prejudicial effect.

10. Where opinion evidence is tendered, distinguish between the witness’s qualifications, the proper scope of the witness’s expertise and the trial judge’s continuing gatekeeping responsibility.

11. The Crown bears the burden of establishing the voluntariness of an accused’s statement to a person in authority beyond a reasonable doubt. Consider the full circumstances rather than treating the use of any particular interrogation technique as automatically determinative.

12. Identification evidence requires particular care. Distinguish admissibility from the reliability and weight ultimately assigned to an identification, and consider whether a cautionary jury instruction may be required.

13. Unless expressly relevant to an evidentiary issue, do not address the substantive elements of murder, arson or any other criminal offence. Assume that the evidence described below is capable of being relevant to the offences charged.

14. Do not address search-and-seizure issues, the Charter right to counsel, sentencing or substantive defences. Assume that all physical items and recordings described below were lawfully obtained. The voluntariness of Calder Wynne’s police statement remains in issue under the common-law confessions rule.

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

QUESTION

FACTS

Calder Wynne is charged with second-degree murder and arson arising from a fire at the Toronto offices of LatticeGen Instruments Inc. (“LatticeGen”), a private medical-technology company.

Calder was LatticeGen’s Chief Financial Officer.

The deceased, Amina El-Sayed, was LatticeGen’s corporate controller.

For approximately six weeks before the fire, Amina had been reviewing payments made to a consulting company called Bridgewell Advisory Group.

Bridgewell had received approximately $860,000 from LatticeGen over two years.

Calder had approved most of the payments.

Amina could not locate contracts or work product corresponding to several of the invoices.

Calder told the company’s Chief Executive Officer that Bridgewell had performed confidential strategic consulting work and that Amina was:

“turning an accounting cleanup into a conspiracy theory.”

Amina continued investigating.

On Monday, November 3, she emailed the chair of LatticeGen’s audit committee stating:

“I have finished organizing the Bridgewell material. There are serious irregularities. I will bring the supporting records to tomorrow morning’s meeting.”

The supporting paper records were stored in LatticeGen’s second-floor archive room.

The company also maintained electronic copies, but several important invoices bore handwritten approval notes that did not appear in the electronic versions.

Calder knew that Amina intended to attend the audit-committee meeting.

At 7:42 p.m. that evening, Amina sent a text message to her sister, Faye El-Sayed:

“Calder is coming by around 9:30 to explain the Bridgewell invoices. I’m staying at the office until we sort this out. I’m nervous after what he said yesterday about people who ‘dig too deep getting burned,’ but I want to hear him out.”

Faye replied:

“Do not stay there alone if you are scared.”

Amina answered:

“I’ll be fine. I just want the truth before tomorrow.”

Faye did not speak to Amina again.

Building-access records show that Calder’s employee credential was used to enter LatticeGen’s underground garage at 9:21 p.m.

Calder does not dispute that he attended the building.

He says Amina had asked him to come because she wanted an explanation of the Bridgewell payments before taking the issue to the audit committee.

At 9:38 p.m., a security camera in the ground-floor lobby recorded Calder entering an elevator carrying his laptop bag.

The camera did not show him carrying a fuel container or other unusual object.

At approximately 9:57 p.m., the building’s fire alarm activated.

The alarm initially registered on the second floor near the archive room.

At 9:59 p.m., Toronto emergency services received a 911 call from Amina’s mobile phone.

The entire call was recorded.

Amina was coughing heavily.

The following exchange occurred:

Dispatcher: “What is happening?”

Amina: “There’s a fire. Second floor, archive side. I’m trapped.”

Dispatcher: “Are you alone?”

Amina: “Calder was here. He poured something by the records room. It smelled like gasoline.”

Dispatcher: “Can you get to an exit?”

Amina: “The rear fire door won’t open. He pulled it shut when he left. I can’t see anything.”

Dispatcher: “Stay low. Firefighters are coming.”

Amina: “Please hurry. I don’t think I’m getting out of here.”

The dispatcher then heard several seconds of coughing and what sounded like the phone striking the floor.

The call disconnected.

Firefighters entered the building approximately eight minutes later.

They found Amina unconscious near a stairwell approximately 20 metres from the archive room.

She had severe smoke inhalation and burns.

Paramedic Sofia Brant accompanied Amina in the ambulance.

Amina regained consciousness briefly.

Sofia asked:

“Do you know what happened?”

According to Sofia, Amina whispered:

“Calder. He said the audit ends tonight.”

Sofia asked:

“Did Calder start the fire?”

Amina answered:

“Yes.”

Amina then said:

“Tell Faye I tried. I know I’m not making it.”

She lost consciousness several seconds later.

Amina died at hospital approximately three hours after the fire.

The Crown intends to tender both the 911 recording and Sofia’s account of the ambulance statements.

The defence objects to both as hearsay.

The defence also objects to Faye’s proposed testimony concerning Amina’s 7:42 p.m. text message.

The Crown says the text is relevant to show:

• that Amina expected to meet Calder;

• that she was afraid of him;

• that Calder had made the “getting burned” statement; and

• that Amina’s later identification of Calder during the fire was not invented after the fact.

The defence argues that the Crown is attempting to use Amina’s untested account of an earlier dispute to portray Calder as threatening and dishonest.

Investigators determined that the fire began in two locations approximately four metres apart near the archive room.

A laboratory later detected gasoline residue in debris collected from both areas.

No gasoline container was recovered.

The archive room and much of its contents were destroyed.

At 10:03 p.m., Hugo Rivas, a delivery driver parked on the opposite side of the street, saw a person leave through a side door of the LatticeGen building.

It was raining heavily.

The street was illuminated by emergency lighting from the building and a nearby construction site.

Hugo estimated that the person was approximately 25 metres away and visible for between four and six seconds.

The person wore a dark knee-length coat.

Hugo could not see the person’s face clearly.

At 10:22 p.m., police interviewed Hugo at the scene.

The interview was audio-recorded.

Hugo said:

“I couldn’t identify him. Male, I think. Maybe around six feet. Dark coat. That’s really all I got.”

An officer asked whether the person had facial hair.

Hugo replied:

“Maybe. I honestly couldn’t tell.”

The following morning, a television news report showed a photograph of Calder and described him as:

“a LatticeGen executive whom investigators are seeking to interview.”

Calder was wearing distinctive silver-framed glasses in the photograph.

After seeing the report, Hugo contacted police again.

He said:

“That might be the man I saw. Something about the way he moved looks familiar.”

Two days later, police showed Hugo a six-person photo lineup.

The administering officer did not know which photograph depicted Calder and told Hugo that the person he had seen might or might not be present.

Calder was the only person in the lineup wearing silver-framed glasses.

Two other men wore black-framed glasses.

Hugo selected Calder.

He wrote beneath the photograph:

“About 70% sure.”

At the preliminary inquiry eight months later, Hugo testified:

“I’m much more confident now. I would say 90%.”

Crown counsel expects Hugo to testify at trial that he is:

“certain Calder is the person who came out of the building.”

The defence intends to cross-examine Hugo on:

• the poor viewing conditions;

• his original statement that he could not identify the person;

• his exposure to Calder’s photograph before the lineup;

• the distinctive glasses; and

• his increasing confidence over time.

If Hugo denies telling police that he could not identify the person, the defence intends to tender the audio recording of his first interview and call the interviewing officer if necessary.

A private parking garage next to LatticeGen also had a security camera facing the side entrance.

Its system automatically overwrote recordings after 30 days.

Police obtained a digital export three days after the fire.

The original recording was later overwritten in the ordinary operation of the system.

The exported recording depicts a dark figure leaving the LatticeGen side entrance at 10:02 p.m. and entering a grey sedan.

The person’s face is not visible.

The vehicle’s licence plate cannot be read in the unmodified export.

Police later created a second version of the clip using commercially available video software.

The officer increased brightness and contrast and slowed the playback speed.

No frames were inserted or deleted.

In several frames of the enhanced version, the first three characters of the licence plate appear to be “CPW.”

Calder owns a grey sedan with licence plate CPWN 417.

The parking-garage manager is prepared to testify that:

• the camera was operating normally that night;

• the exported clip accurately represents the footage displayed by the system;

• the camera’s clock was approximately one minute slow; and

• she personally watched a police officer create the export.

A police digital-forensics technician can testify that the police copy has not been altered since export.

The defence accepts that police did not intentionally manipulate the recording but argues that the enhanced version creates a misleading impression of precision that the original recording did not contain.

The Crown also intends to introduce evidence concerning two earlier fires.

The first occurred in 2021 at Verran Medical Supplies Ltd., where Calder had previously worked as finance director.

The fire began in a room containing accounting records the night before an external lender was scheduled to conduct a financial review.

Investigators found gasoline residue.

The building’s alarm zone covering the records room had been disabled approximately 20 minutes before ignition using an administrator code.

Calder was one of four employees who knew the code.

Electronic records showed Calder entered the building approximately one hour before the fire and left 15 minutes before smoke was detected.

Calder told investigators he had returned to retrieve a laptop.

No one was charged.

The official investigation classified the cause as:

“incendiary, responsible person undetermined.”

The second fire occurred in 2023 at a commercial storage unit rented by a business Calder partly owned.

The unit contained old corporate records.

Calder had visited the facility earlier that day.

A fire occurred that evening.

The fire investigator concluded that the most probable cause was an electrical failure in a fluorescent-light ballast.

No accelerant was detected.

The Crown wants to introduce both incidents.

It says the evidence reveals a pattern in which fires occur in locations containing business records at moments when those records may create financial difficulty for Calder.

The Crown says the 2021 fire is especially probative because it involved:

• financial records;

• imminent financial scrutiny;

• gasoline;

• Calder’s presence shortly beforehand; and

• interference with an alarm system.

The defence argues that neither incident proves that Calder committed anything.

It says the 2023 fire was affirmatively assessed as accidental and the 2021 fire merely establishes that Calder was one of several people with opportunity.

Admitting the evidence, the defence argues, would invite the jury to reason:

“Calder has been around suspicious fires before, so he probably started this one.”

Approximately one hour after the LatticeGen fire, Calder arrived at a downtown hospital complaining of shortness of breath and irritation to his eyes.

A nurse noted a small burn on his left wrist.

Calder said he had been:

“near a building fire.”

The Crown does not allege that this statement was made to a person in authority.

Before police arrested Calder, LatticeGen’s Chief Executive Officer, Imogen Kerr, encountered him in a hospital corridor.

Two firefighters and several members of hospital staff were nearby.

Imogen was visibly upset.

She said:

“Amina told me you were trying to stop her from exposing the Bridgewell payments. You did this because she was taking the invoices to the board, didn’t you?”

Calder looked at Imogen for several seconds.

He did not answer the accusation.

He eventually said:

“I can’t talk about this here.”

He then walked away.

Imogen intends to recount the exchange.

The Crown argues that Calder’s failure to deny the accusation amounts to an adoptive admission.

The defence says there was nothing about an emotionally charged hospital confrontation that reasonably required Calder to respond and that:

“I can’t talk about this here”

is not an adoption of anything.

Police arrested Calder at approximately 1:00 a.m.

He was cautioned and spoke by telephone with duty counsel.

The legality of the arrest and Calder’s Charter rights are not disputed for purposes of this examination.

Detective Maris Donnelly began interviewing Calder at approximately 2:10 a.m.

Calder had been awake since approximately 6:00 a.m. the previous morning.

The interview lasted eight hours and was video-recorded.

Police gave Calder water, coffee, a sandwich and two bathroom breaks.

He was never physically threatened.

During the first three hours, Calder repeatedly denied starting the fire.

Maris then began using an interrogation method she described in her notes as:

“Reid-style confrontation and theme development.”

She repeatedly told Calder:

“We already know you started it. The evidence is done.”

That statement was not accurate.

At one point she falsely told Calder:

“The camera shows you carrying the gas into the archive area.”

No such footage exists.

She later said:

“There is a huge difference between somebody who goes there wanting to kill a woman and somebody who loses his temper, scares her and makes a terrible mistake.”

Calder continued denying responsibility.

Approximately six hours into the interview, Calder said he was exhausted and asked:

“If I just say what you want, can I sleep?”

Maris replied:

“I don’t want what I want. I want the truth. If this was an accident, tell us. People who take responsibility and cooperate are in a very different position from people who lie about murder.”

Another detective added:

“If you were only trying to scare her, say that. We can make sure the Crown knows you cooperated.”

Approximately 40 minutes later, Calder stated:

“I knocked over some solvent by the archive door and lit a paper towel. I wanted her to back off the audit. I thought the sprinklers would put it out. I never meant for the whole floor to go up.”

He denied intentionally blocking the fire door.

After making the statement, Calder answered detailed follow-up questions coherently for another 45 minutes.

The defence seeks exclusion of the statement under the common-law confessions rule.

It relies on:

• the duration and overnight timing of the interrogation;

• Calder’s fatigue;

• repeated false assertions about the evidence;

• the officers’ minimization of the conduct; and

• the suggestion that cooperation would place Calder in a “very different position.”

The Crown responds that Calder:

• had spoken to counsel;

• understood where he was and why he was being questioned;

• was supplied with food, drink and breaks;

• remained oriented throughout;

• was never threatened;

• was never expressly promised release or a particular charge; and

• gave a coherent, detailed account.

The Crown further argues that the use of a Reid-style interrogation technique does not, by itself, make a statement involuntary.

The Crown proposes to call Dr. Mira Thorne, a university professor in combustion chemistry.

Dr. Thorne has:

• a Ph.D. in chemical engineering;

• published more than 40 peer-reviewed articles concerning combustion and accelerant residues;

• testified as an expert on laboratory identification of ignitable liquids approximately 15 times; and

• assisted with three previous fire-scene investigations.

She is not a certified electrical engineer or a certified fire-and-explosion investigator.

Dr. Thorne did not attend the LatticeGen scene.

She reviewed:

• photographs;

• firefighter reports;

• laboratory results;

• building plans; and

• samples selected and collected by police investigators.

The Crown wants her to give four opinions:

1. gasoline was present in debris from two distinct locations;

2. the distribution of the gasoline residue is consistent with liquid gasoline having been deliberately poured;

3. an accidental electrical ignition can be ruled out; and

4. the fire was deliberately set.

The defence concedes that Dr. Thorne is qualified to interpret laboratory chemistry showing whether gasoline was present.

It challenges the remainder of her proposed opinion.

The defence says conclusions about:

• fire origin;

• pour patterns;

• electrical causes; and

• intentional ignition

fall partly or entirely outside her demonstrated expertise.

The defence also relies on an email Dr. Thorne sent to Crown counsel after receiving the photographs but before receiving the complete laboratory file:

“This looks very much like a deliberate gasoline fire. I think I can help establish the arson theory once I have the remaining material.”

Dr. Thorne says the email expressed only a preliminary impression and that she understands her duty to give independent evidence regardless of which party retained her.

The Crown says any shortcomings go to weight, not admissibility.

The defence says the trial judge must actively control the scope of expert evidence rather than allow a technically qualified witness to become an advocate.

Calder has elected trial by judge and jury.

The Crown’s case, if all of the disputed evidence is admitted, will include:

• Amina’s text message;

• the 911 call;

• Amina’s ambulance statements;

• Hugo’s identification;

• the parking-garage video;

• the prior-fire evidence;

• the hospital exchange;

• Calder’s police statement; and

• Dr. Thorne’s opinion.

Defence counsel expects significant disputes not only about whether these items are admissible, but also about the limited purposes for which some of them may properly be used and the instructions the jury should receive.

QUESTION

The senior partner at your firm asks you to prepare a brief but comprehensive memorandum advising Calder on the significant evidentiary issues likely to arise at his trial.

Your memorandum should assess the admissibility and proper use of the disputed evidence, the strongest arguments available to both the Crown and defence, any important preliminary factual or burden-of-proof questions, and any limiting or cautionary instructions that may be required if particular evidence is admitted.

Where a piece of evidence may be admissible for one purpose but not another, explain the distinction.

Do not address the substantive elements of the offences or Charter issues.

100 MARKS