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

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

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

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