CANADIAN CRIMINAL LAW COURSE

GSLAW 6843 Fall 2015

FINAL EXAMINATION
TIME: 3 HOURS
December 18, 2015

Instructions:

1. This is an open book exam. You may use any materials you wish during this
exam, including textbooks, course materials and notes.

2. This exam will be graded out of 70 marks and will constitute 70% of the final
grade given in this course.

3. This exam is comprised of fact pattern questions. You must answer all the
questions.

4. Please take time to read the instructions and questions on this exam carefully.

5. Allocate your time according to the total number of marks given per question.

6. State any assumptions made in your answers. Any relevant Criminal Code section
required to answer a question is provided within the question.

7. During this exam, only one student at a time is permitted to leave the exam room.
No student may leave within 15 minutes of the conclusion of the exam.

8. Time limits will be strictly enforced. Students who continue to write after this
exam has ended may be subject to a penalty.

9. This exam is comprised of 9 pages. Please verify that you have all of the pages
forming part of this exam and alert the exam administrator immediately if you are
missing any page(s).

1
QUESTION #1 (15 Marks)

One night, Tom was eating at a steakhouse when he noticed Paul sitting at another table.
Tom and Paul had a longstanding feud that started in high school. Later, as Tom was
leaving the restaurant, he deliberately bumped Pauls chair and called Paul a wimp.
Paul got up and threw a punch at Tom, flooring him. When Paul bent down to pound
Tom another time with his fist, Tom managed to get his hand on a steak knife that had
fallen in the scuffle and stabbed Paul twice. Tom then pushed Paul off of him, got up,
kicked Paul in the head and ran out of the restaurant. Paul nearly died from a stab wound
to his back. Tom was charged with attempted murder.

What defence will Tom be able to claim at trial? Discuss whether you think such a
defence would be successful?

2
QUESTION #2 (5 Marks)

You are a Crown assigned to prosecuting a sexual assault charge against Tom. At a
meeting with the complainant, she tells you that there was a witness to the sexual assault
but does not tell you who the witness is because she does not want to get her friend
involved. The complainant further indicates that she will not answer any questions on the
stand that may reveal her friends involvement.

What do you do as a result of receiving this information?

3
QUESTION #3 (10 Marks)

Tom is a chiropractor and the complainant was his patient. During the course of a
treatment, Tom massaged the complainants back by applying a massage tool with his left
hand, while surreptitiously masturbating with his right hand. The complainant noticed a
wet spot on her pants after the treatment was finished. Testing later confirmed the
presence of Toms semen on the complainants pants.

Discuss whether a charge of sexual assault is appropriate in these circumstances.

Assault

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to

that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to

another person, if he has, or causes that other person to believe on
reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he

accosts or impedes another person or begs.

Application

(2) This section applies to all forms of assault, including sexual assault,
sexual assault with a weapon, threats to a third party or causing bodily
harm and aggravated sexual assault.

Consent

(3) For the purposes of this section, no consent is obtained where the
complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the
complainant;

(b) threats or fear of the application of force to the complainant or to a

person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

4
Accuseds belief as to consent

(4) Where an accused alleges that he believed that the complainant

consented to the conduct that is the subject-matter of the charge, a judge,
if satisfied that there is sufficient evidence and that, if believed by the jury,
the evidence would constitute a defence, shall instruct the jury, when
reviewing all the evidence relating to the determination of the honesty of
the accuseds belief, to consider the presence or absence of reasonable
grounds for that belief.

5
QUESTION #4 (10 Marks)

Pam and her husband, Tom, shared a basement apartment. Tom downloaded child
pornography on a computer owned by Pam and used by both spouses. Pam had no
interest in child pornography and did not access the material Tom had downloaded. Pam
admitted that on two occasions she saw Tom looking at images of teenaged boys dressed
in underwear on the desktop computer. It is common ground that these images were not
child pornography. Acting on a warrant, the police seized the computer and charged both
spouses with possession of child pornography. The police found a large number of
images and videos depicting child pornography on the computer. The files were stored in
subfolders that were not readily apparent or easily accessible, and there was evidence that
Pam was not particularly computer literate. The Crown relied upon statements made by
Pam at the time of the seizure and after her arrest. Pam told the police that she knew, or at
least had a good idea, that there might be child pornography on the computer, but that she
had not downloaded or accessed it and had no interest in it.

Question

Tom accepted responsibility, admitted that he had downloaded the prohibited material,
pleaded guilty and was sentenced for possession of child pornography. Discuss whether
Pam should also be found guilty of possession of child pornography.

6
QUESTION #5 (15 Marks)

Tom has been charged with causing a disturbance in or near a public place contrary to s.
175(1) (a) of the Criminal Code, which reads:

Causing disturbance, indecent exhibition, loitering, etc.

175. (1) Every one who

(a) not being in a dwelling-house, causes a disturbance in or near a public

place,

(i) by fighting, screaming, shouting, swearing, singing or using

insulting or obscene language,
(ii) by being drunk, or
(iii) by impeding or molesting other persons,

(b) openly exposes or exhibits an indecent exhibition in a public place,

(c) loiters in a public place and in any way obstructs persons who are in
that place, or

(d) disturbs the peace and quiet of the occupants of a dwelling-house by

discharging firearms or by other disorderly conduct in a public place or
who, not being an occupant of a dwelling-house comprised in a particular
building or structure, disturbs the peace and quiet of the occupants of a
dwelling-house comprised in the building or structure by discharging
firearms or by other disorderly conduct in any part of a building or
structure to which, at the time of such conduct, the occupants of two or
more dwelling-houses comprised in the building or structure have access
as of right or by invitation, express or implied,

is guilty of an offence punishable on summary conviction.

The charge arose from an incident that took place at Toms secluded farm. The local fire
department received a call to attend Toms farm to deal with a car that was on fire. The
car belonged to Toms girlfriend. It had crashed into a tree and it was on Toms property.
While en route to the fire, the fire department requested police assistance. There was a
crowd of young people at the scene. They appeared to have been drinking. The
firefighters extinguished the fire. On arrival at the scene, Officer Friendly learned that the
vehicle fire may have been caused by people playing demolition derby. Officer
Friendly subsequently arrested Toms girlfriend for dangerous driving. At this point, Tom
became agitated to the point that Officer Friendly requested police backup and told Tom
to calm down. Instead, Tom reacted with a loud, profane and angry tirade against the
police. About 20 people, including family members, friends, firefighters and police
officers were present and standing around at the time. Nobody reacted to Toms actions.

7
Questions

a) What is the actus reus of the offence that the Crown must prove? (5 marks)

b) Discuss whether the Crown will succeed in proving the actus reus of the offence. (5
marks)

c) Explain whether s. 175(1)(a) is a hybrid offence. (5 marks)

8
QUESTION #6 (15 Marks)

Tom owned and occupied a condominium unit in a small, 10-unit building. The police
suspected that Tom was involved with dealing drugs and made three surreptitious entries
into common areas of his building. Once inside the complex, a detective walked through
the hallways, entered the storage area and viewed the contents of Toms storage locker.
The detective also hid in the stairwell, where he observed Toms unit and listened to what
was going on inside the unit. Using the information gathered from these entries, the
police obtained a warrant and subsequently arrested Tom on drug trafficking charges.
The drugs (marihuana) were found hidden in Toms storage locker.
Question
Assume that the evidence the detective gathered in the course of the three entries was
obtained in breach of Toms rights under s. 8 of the Charter. Conduct a s. 24(2) analysis
to determine whether the drugs should be admitted at Toms trial.