NCA QUESTION PAPER

EVIDENCE EXAM AUG 2007 (ONTARIO)

The following is a somewhat accurate version of the question paper I answered in Aug. 2007. I have missed a lot of things as I cannot completely recall the questions . Please do not rely on this enti rely. It is highly recommended that you follow the

syllabus (& latest books) & also practice the NCA sample questions & other Canadian law school exam questions ( in other words please dont blame me if the exam doesnt go well).

Fact s i tuation A deals with criminal law & fact situation B deals with civil law. Pass mark is 50.

FACT SITUATION A

Ms. Curtis was admitted to hospital with a head injury that required sti tches . She smelled of alcohol & the nurse

noted i t on the report. When asked how she had received her injuries she said that she had been beaten up by a group of gi rls and that she had taken the bus to hospital. As required by hospital policy, the admitting nurse informed the police. Ms. Curtis required surgery, which appeared to be a success and she was in a s table condition. Her mother

informed her that she had almost died. When the police reviewed the hospitals surveillance tape, they saw that she had been dropped off at the entrance to the hospital in a blue car driven by a male. When Officer Bowler questioned

Ms. Curtis on how she had received her injuries, ini tially she adhered to the story of being beaten up by a group of gi rls and having taken the bus to the hospital. When Officer Bowler informed her about the film footage he said , We know that a man drove the blue car, li cence plate no. AMAR DESH and it will be easy to trace the owner and find out his address . Who was driving i t? Ms. Curtis replied, My boyfriend, Mitchell Milande. Officer Bowler asked, He did this to you didnt he? She paused before replying, I dont want to get him into trouble. Ms. Curtis

developed an infection from the surgery and died two days later. Mitchell Milande has been charged with manslaughter.

Part I (20 marks)

Officer Bowler and another officer went to the address of Mitchell Milande. They saw a blue car in the driveway. They knocked on the door & when Mitchell opened the door they asked i f they could go inside. No he replied. Officer

Bowler then asked Mitchell i f he knew how Ms. Curtis had received her injuries and he replied that she had called him and told him that she had been beaten up by a group of gi rls and that she was taking the bus to hospital . Officer Bowler then told Mitchell, Ms. Curtis told us the truth. She said that you attacked her (This was a lie). He also told

Mitchell that he had reviewed the film footage & that it showed Mitchell Milande drive Ms. Curtis to the hospital & push her out of the car before driving away. Mitchell denied this . Then he told the police that he would not speak to them anymore & told them to leave. They asked i f they could search his car. No he said. On their way out, Officer Bowler looked into the blue car with a flashlight. He saw what appeared to be blood. Is this blood? he asked

Mitchell , who was s till standing in the doorway. Its from my dog; he got hi t by a car on Saturday. I took him to the vet. Which vet would that be? asked Officer Bowler. Its the Apple Does Good Vet replied Mitchell.

Officer Bowler obtained a search warrant for Mi tchell s car. The car was seized & the blood was analyzed. The blood analysis showed that the DNA was similar to Ms. Curtis DNA, with the possibility of an error occurring 1 in 17 million. Officer Bowler called the Apple Does Good Vet & the receptionist replied that nobody by the name of Mitchell Milande brought any dog in on Saturday. Defence Counsel wants the blood analysis and the conversation with Mitchell excluded.

You are the trial judge at the preliminary hearing. You have made the following findings:

The police have made a number of Charter violations. Al though the police have an implied licence to knock on the door of a house & speak to the occupants , no such licence exis ts when the homeowner refuses to speak to the police.

Officer Bowler also lied about Ms. Curtis s tatement. Al though there are cases where police can look into vehicles

with flashlights & see what is in plain sight, these cases all deal with traffic violations . In the instant case, Mitchell Milande expressly refused the police officers request to search the car. The search of the car thus amounted to an illegal search under s .8 of the Canadian Charter of Rights & Freedoms. The search warrant obtained by Officer Bowler was also improperly obtained. It was premised on the lie that Ms. Curtis had implicated Mitchell Milande. Furthermore, I have reviewed the surveillance tape and found i t to be very grainy & the picture unclear. There

appears to be a man driving the said car but I could not make out his face. Bas ed on my findings i t was incorrect for Officer Bowler to s tate in the reasons for obtaining a warrant that i t was Mitchell Milande. Since the search warrant was not obtained by proper authorization, the subsequent search was also illegal under s .8. I am not 100% certain of the Charter breach.

Complete the above reasoning and decide whether the conversation and the blood analysis are admissible.

Part - II

Are the s tatements by Ms. Curtis admissible/ Give reasons that would be put forward by the Crown and the Defence.

Part III

Upon his arrest at 2:45 pm by Officer Bowler, Mitchell Milande was taken to the police station. He was informed of

his right to counsel. He spoke to a lawyer who advised him to say nothing. When questioned in a videotape room Mitchell said, Im not talking to you guys . Youre trying to frame me. The police continued to question him in spite of his objections . He was given nothing to eat & not allowed to go to the washroom, al though he did not ask to use a washroom. Officer Bowler said, Ms. Curtis told us what happened. That will be admissible in court. Mitchell replied, Im not saying nothing. I was drinking heavily that night. I dont remember what happened. Officer Bowler then

said, We know that you didnt mean to attack her. Why dont you at least wri te to her mother & apologize. Its the least you can do. Mitchell asked, Its not going to be used in court right? He then wrote to Ms. Curtis mother &

apologized, I never meant to kill her.

Can the Crown use his conversation against Mitchell? Give reasons for & against i ts admissibility.

Part IV

The Crown proposes to call Officer Bowler as a witness. The Crown has prepared a will say statement outlining what Officer Bowler will s tate in court. Officer Bowler will indicate that he met Milande on 2 occasions once at his house & again during his arrest & he will testi fy that Milande is the man on the surveillance tape . Discuss the admissibility of Officer Bowlers evidence.

FACT SITUATION B

Melissa was a patient of Dr. Scoffer nine years ago. She saw him on a number of occasions for her lower back pain. On a few occasions Melissa fel t that Dr. Scoffer touched her inappropriately. She said nothing. While touching her, on a few occasions Dr. Scoffer compared his treatment to that of acupuncture & talked of pressure points & releasing s tress. When Melissa turned 18, Dr. Scoffer called her at home & sent her flowers . He said that he had always been interested in her, but that now that she was old enough he wanted to date her. Ini tially Melissa refused but finally she gave in & went on a few dates . She stopped seeing

him when he proposed marriage.

Melissa now wants to sue him for damages for sexual assault. For her own peace of mind & to find out whether she had been sexually assaulted, she wrote a letter to a physician, who was a family friend, Dr. Butterfingers. In her letter she s tated that the inappropria te touching s tarted when she s tarted dating Dr. Scoffer. Dr. Butterfingers wrote back that for her own peace of

mind she should seek therapy. Melissa gave both letters to her lawyer. When she later changed lawyers , the 2 letters were accidentally sent to the prosecution counsel in a criminal case against Dr. Scoffer, in which he was charged with sexually assaulting Melissa. Prosecution Counsel has indicated that they are under a duty to reveal the letters to Defence Counsel.

Part I

What can Melissas lawyer do to prevent the 2 letters from being revealed to Defence Counsel?

Part - II

Since insti tuting the case for damages against Dr. Scoffer, Melissa has learnt of 2 potential witnesses. One is Ms. X, another woman who has alleged that she was sexuall y assaulted by Dr. Scoffer around the same time as Melissa. Ms. X claims that she was also seen by Dr. Scoffer for lower back pain & that at every visit he made her become nude & weighed her. He had told her of the importance of losing weight to relieve the stress on her back. On one occasion he

had patted her on her buttocks & told her to keep up the good work. She recalls him mentioning something about acupuncture & pressure points . The other witness is a medical practi tioner at the hospital where Dr. Sco ffer works & he is ready to testify that under medical ethics there i s no requirement or practice of weighing in the nude.

Wil l these witnesses be allowed to testify in Melissas case?

Part III

In the criminal case, Dr. Scoffer had entered a guilty plea . For certain reasons his conviction was overturned in his tria l. Can his guilty plea & subsequent acquittal be used in the case by Melissa?