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COMPLETE PAPER

THE UNIVERSITY OF BRITISH COLUMBIA


FACULTY OF LAW

FINAL EXAMINATION FALL 2016 -

LAW 400
ADVANCED CRIMINAL PROCEDURE

Section 1
Professor Harris

TOTAL MARKS: 100

TIME ALLOWED: 2.5 HOURS and 10 minutes


reading time

Note: This is a closed book examination, and


students can only bring to the exam two double
sided pieces of paper (or 4 single sided pages) with
notes, and an unannotated Criminal Code with tabs.

THIS EXAMINATION CONSISTS OF 3 QUESTIONS. ANSWER ALL 3


QUESTIONS.
LAW 400, Section 1, Page 2/3

Question 1 (60 Marks)

Josh Jar and Peter Pall have been charged on the same indictment with the second degree
murder of Vince Victim contrary to section 229(a) of the Criminal Code. Jar, Pall and
Victim ran a highly successful construction company, and one night they went into a
crowded pub to talk about the future of their business. The three of them sat at a table in
a corner of the pub. A few minutes later shots were heard coming from their table, and
Jar and Pall ran out of the pub. Victim was found shot to death at their table, but no gun
was found. A number of witnesses said they saw somebody shooting a gun in the area of
their table, but no one had a clear view of the shooter. Four witnesses described the
shooter as being tall, and two witnesses said the shooter was short. Jar is tall and Pall is
short.

Jar was found by the police walking on a street close to the pub about 10 minutes after
the shooting. Jar was arrested and the police searched him. The police found a cell
phone on Jar and they started searching through his texts. The police did not see
anything relevant, so they started checking his e-mails. The police found an c-mall sent
by Jar to Victim two weeks ago in which Jar told Victim he was angry about an idea
Victim had to sell their business to a larger company. The police then made notes of their
search of the phone.

Pall was arrested a day later, and he made a statement to the police saying that he and Jar
were having a huge dispute with Victim about the future of their business, and that he and
Jar decided to kill Victim. The Crown plans to lead this statement at trial, and it will only
be admissible against Pall.

You are Jar


s defence counsel and you meet with him in police custody one day after his
1
arrest. Jar tells you that it was Pall who shot Victim, and that he had no idea there was
going to be any violence that night. Jar also tells you that Pall likely hid the gun in a
storage locker rented by Pall’s sister in Langley that Pall uses from time to time. You
meet with the Crown who provides you with the initial disclosure in the case, and tells
you that full disclosure will be made in one week’s time. You ask the Crown if they will
agree to bail, and the Crown says they will be strongly opposing bail. Jar tells you that he
wants to apply immediately for bail because he needs to run the company and his young
children are missing him. Jar tells you that he has never been in a prison and that he does
not think he can spend much more time in custody.

1. Based on the information provided, do you thmk Jar will receive bail?
Please explain why or why not. (30 marks)

2. Based on the information provided, are there any reasonable motions which
you will wish to bring as Jar’s defence counsel prior to the trial? Please
explain both what those motions are and whether you anticipate that they
will be successful? (30 marks)
LAW 400, Section 1, Page 3/3

Question 2 (30 Marks)

Suppose that on January 15, 2016, Parliament passed the following law:

The rule for the timing of disclosure in criminal trials is as follows: the Crown is
obligated to provide all potentially relevant materials in its possession to the
defence 60 days prior the scheduled trial date.

1. Do you think this law violates section 7 of the Charter? Please explain why or
why not. (25 marks)

2. Suppose that the above disclosure law is valid, and an accused was charged
with an offence which occurred in 2015, but the charge was laid in 2017 and
the trial will be in 2018. Would the disclosure law apply to the accused’s
trial, or would the accused’s trial use the disclosure rules that existed before
the law was passed? (5 marks)

Question 3 (10 Marks)

Please comment on the accuracy of the following statement:

An unreasonable verdict is much more likely to be found in a jury trial because


jurors have limited experience with certain areas of evidence.

END OF EXAMINATION
PRE-TRIAL

Week I
Charge Approval
R. v. Nixon
R. 1’. Malik Bagri and Reyat
Excerpt 1 from Cowper Report Ce-mailed)

Week 1/11
The Indictment
R. v. Saunders
R. v. R.(G.)
R. v. i.B.M.
R. v. Moore
R. v. Millington
R. v. Harris
R. v. Irwin
R. v. Heaney
Criminal Code sections 581-587, 601, 660-662 683(l)(g)

Week III
Bail and Counsel
Toronto Star Newspapers Ltd. v. Canada
R. v. Parsons
R. v. St-Cloud
R. v. Manasseri
R. v. Tremblay
Criminal Code sections 469, 496-499, 515, 679, Charter section 11(e)

Week IV
Disclosure
R. v. Baxter
R. v. Bjelland
R. v. McNeil
Charter, section 7

Week V
Severance
R. v. Suzack
R. v. McEwan
R. v. Last
Criminal Code sections 589, 591

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Week VI
Rulings
Section 8 of the Constitutional Question Act, RSBC, c. 68
R. v. Sipes
K v. Vukelich
R. v. Bains

Week VIIVII
Powers of Search and Arrest
R. v. Amare
R. v. Juan
R. v. Mann
R. v. Pope
R. v. Fearon
Hunter v. Southam
R.v. Wilson
Criminal Code section 495; Charter, sections 8, 9

Weeks Vifi-IX
Class of Offence and Applicable Time
R. v. Dudley
R. v. Dineley

THE TRIAL

Juries
Role of Trial Judge
R. v. Gunning
R. v. Krieger

Bias of the Trier of Fact


R. i’. Williams
Criminal Code, sections 634-640

Closing Addresses
R. v. Rose
Criminal Code, section 651

Week X
Unreasonable Delay
R. v. Jordan
Charter, section 11(b)

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THE APPEAL

Weeks X-XII
Powers of Ape11ate Court
Criminal Code sections 675-678, 683, 686, 812, 813; Video

Errors of Fact and Law


R. v. Grouse

Reversible Error
R. v Austin
R. v. Sarrazin

Miscarriages of Justice
R. v. Shen

Unreasonable Verdicts
R. v. D.A.R.
R. v. Scuby
R. w. Biniaris
R. v. Vokurka (NLCA)
R. v. Vokurka (SCC)

3
SUMMARY
CONVICTION PROVINCIAL
INDICTABLE OFFENCES
OFFENCE
OFFENCES

Trial: Within Absolute


before Provincial Court Which can only be Procedure found in
Jurisdiction of Offence Act (B.C.)

Judge Part XXVII tried by a Superior
Provincial Court Upon which an accused is given an Election
Judge Court of Criminal
Appeal: Jurisdiction
1.to Supreme Court Trial.’
Judge, following same are listed in s.553 before a “Justice
--
procedure as in Court Accused may elect one of three modes of trial, as
are listed in s.469 (Judicial J.P., or
of Appeal (ss 813. described in 5.536(2) Provincial Court Judge)
822(1))
or - - Preliminarij AppeaL
2.by Thai de Nova TriaL’ Provincial Court Judge without a Court compDsed of 1.to Supreme Court
before Provincial Judge Jury Hearing:
before Supreme Court Judge and Jury before a ‘Justice Judge following same
Judge, by order of Court Judge—part procedure as in Court
XIX (Provincial Court
same (as 813, 822(4)) -
Judge) Part XVIII of Appeal (s.109(1))
or - -
Trial: Pilthiinanj Preliminarzi -
or -

3. on transcript or before a Provincial Hearing: 2.by Trial de Novo


Court Judge
Hearing: TriaL
agreed statement of before a ‘Justice before a ‘Justices before Supreme Court
-Part XIX Judge, by Order of
(acts to Supreme Court (Provincial Court (Provincial Court must be held before a

same (a. 109(3))

Judge on ground of Judge) Part XVIII Judge) Part XVIII Supreme Court Judge
law or jurisdiction only -PartXX -or
(s.830(l) & (2)) Trial: - must be ajuzy trial 3.to Supreme Court
Trial: Judge, by Stated Case,
before a Supreme before a Supreme unless both accused
and Crown consent on ground of law or
Further Appeals: Court Judge Part — Court Judge & jurisdiction only
to Court of Appeal on XIX -
Jury Part XX (as 471 and 473)
(s.1 15(1))
question of law only.
with leave (s.839) Further Appeals:
-
and -
to Court of Appeal on
to Supreme Court of question of law alone
Canada on question of with leave (s.124J
- -
law or jurisdiction, and
with leave (S.C.A., to Supreme Court of
s.40(1), (3)) APPEAL.’ • —
in all of the above cases, the appeal procedure is the same to Court of Appeal on Canada on questions of
a question of law alone (as of right), on a question of fact or mixed law and fact law orjurzsdiction, with
Note: as 675(1.1), (with leave), on sentence (with leave) leave (S.C.A., s.40(1),
676(1.1) permit appeals, • jurisdiction is described in as 675,676; procedure found in Part XXI
with leave, directly to the (3))
Court of Appeal with an FURTHER APPEAL: • to Supreme Court of Canada — as 691 — 693
indictable appeal arising
out of the same trial

Ollences on which Crown has an option to proceed by Summary Conviction or Indictment


1. If Crown opts to proceed by Summary Conviction, is
procedure Identical to column left in all respects; on or

is
2. If Crown opts to proceed by Indictment, procedure identical to Indictable Offence? above in all respects. 09103