NCA QUESTION PAPER

EVIDENCE EXAM AUG 2007 (ONTARIO)

The following is a somewha t a ccura te version of the ques tion paper I answered in Aug. 2007. I ha ve missed a lot of things as I
cannot completel y recall the ques tions . Please do not rel y on this enti rel y. It is hi ghl y recommended tha t you follow the
s yllabus (& la test books) & also pra cti ce the NCA sample ques tions & other Canadian law s chool exam questions ( in other words
please dont blame me if the exam doesnt go well).
Fa ct s i tuation A deals with cri minal law & fa ct situation B deals with civil law. Pass mark is 50.

FACT SITUATION A
Ms . Curtis was admi tted to hospital with a head injury tha t requi red sti tches . She smelled of al cohol & the nurse
noted i t on the report. When asked how she had recei ved her injuries she said tha t she had been bea ten up by a
group of gi rls and tha t she had taken the bus to hospi tal. As requi red by hospi tal policy, the admi tting nu rse informed
the police. Ms . Curtis requi red surgery, whi ch a ppea red to be a success and she was in a s table condi tion. Her mother
informed her tha t she had almost died. When the police reviewed the hospi tals surveillance ta pe, they saw tha t she
had been dropped off a t the entrance to the hospi tal in a blue ca r dri ven by a male. When Offi cer Bowler ques tioned
Ms . Curtis on how she ha d recei ved her i njuries, ini tially she adhered to the story of being bea ten up by a group of
gi rls and ha ving taken the bus to the hospi tal. When Officer Bowler informed her a bout the film foota ge he said , We
know tha t a man drove the blue ca r, li cence plate no. AMAR DESH and it will be eas y to tra ce the owner and find
out his address . Who was dri ving i t? Ms . Curtis replied, My boyfriend, Mi tchell Milande. Offi cer Bowler asked,
He did this to you didnt he? She paused before repl ying, I dont want to get hi m into trouble. Ms . Curtis
developed an i nfection from the surgery and died two da ys la ter. Mi tchell Milande has been cha rged wi th
ma nslaughter.
Part I (20 marks)
Offi cer Bowler and another offi cer went to the address of Mi tchell Milande. They saw a blue ca r i n the dri vewa y. They
knocked on the door & when Mi tchell opened the door they asked i f they could go inside. No he replied. Offi cer
Bowler then asked Mi tchell i f he knew how Ms . Curtis had recei ved her i njuries and he replied that she had called him
and told hi m tha t she had been bea ten up by a group of gi rls and tha t she was taking the bus to hospital . Offi cer
Bowler then told Mi tchell, Ms . Curtis told us the truth. She said tha t you a tta cked her (This was a lie). He also told
Mi tchell that he had reviewed the film footage & tha t it showed Mi tchell Milande dri ve Ms . Curtis to the hospi tal &
push her out of the ca r before dri vi ng a wa y. Mi tchell denied this . Then he told the police tha t he woul d not s peak to
them anymore & told them to lea ve. They asked i f they could search his ca r. No he said. On their wa y out, Offi cer
Bowler looked into the bl ue ca r with a flashlight. He saw wha t appea red to be blood. Is this blood? he asked
Mi tchell , who was s till standi ng in the doorwa y. Its from my dog; he got hi t by a ca r on Sa turda y. I took him to the
vet. Whi ch vet would that be? asked Officer Bowler. Its the Apple Does Good Vet replied Mi tchell.
Offi cer Bowler obtained a sea rch wa rrant for Mi tchell s ca r. The ca r was seized & the blood was anal yzed. The blood
anal ysis showed that the DNA was similar to Ms . Curtis DNA, wi th the possibility of an error occurring 1 in 17 million.
Offi cer Bowler called the Apple Does Good Vet & the recepti onist replied that nobody by the na me of Mi tchell
Milande brought a ny dog in on Sa turda y. Defence Counsel wants the blood anal ysis and the conversa tion wi th
Mi tchell excluded.
You a re the tri al judge a t the preliminary hearing. You have made the following findings:
The poli ce ha ve made a number of Cha rter vi olations. Al though the poli ce ha ve an i mplied li cence 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.
Offi cer Bowler also lied about Ms . Curtis s tatement. Al though there a re cases where police ca n look into vehi cles
wi th flashlights & see what is in plain si ght, these cases all deal wi th tra ffi c viola tions . In the ins tant case, Mi tchell
Milande expressl y refused the poli ce offi cers reques t to sea rch the ca r. The sea rch of the ca r thus amounted to an
illegal sea rch under s .8 of the Ca nadian Cha rter of Rights & Freedoms . The search wa rrant obtained by Offi cer Bowler
was also improperl y obtained. It was premised on the lie tha t Ms . Curtis had impli ca ted Mi tchell Milande.
Furthermore, I ha ve reviewed the surveillance tape and found i t to be very grainy & the pi cture unclea r. There

appea rs to be a man dri ving the said ca r but I could not make out his face. Bas ed on my findings i t was incorrect for
Offi cer Bowler to s ta te in the reasons for obtaining a wa rrant tha t i t was Mi tchell Milande. Since the search wa rrant
was not obtained by proper authoriza tion, the subsequent sea rch was also illegal under s .8. I am not 100% certain of
the Cha rter breach.
Compl ete the a bove reasoning and decide whether the conversation and the blood analysis a re admissible.
Part - II
Are the s tatements by Ms . Curtis a dmissible/ Give reasons that would be put forward by the Crown a nd the Defence.
Part III
Upon his a rrest a t 2:45 pm by Offi cer Bowler, Mi tchell Milande was taken to the police sta tion. He was informed of
his right to counsel. He spoke to a lawyer who advised him to say nothing. When ques tioned in a vi deotape room
Mi tchell said, Im not talking to you guys . Youre trying to fra me me. The poli ce continued to ques tion him in spite
of his objections . He was gi ven nothing to ea t & not allowed to go to the washroom, al though he did not ask to use a
washroom. Offi cer Bowler said, Ms . Curtis told us wha t happened. Tha t will be admissible in court. Mi tchell replied,
Im not sa yi ng nothing. I was drinking hea vil y tha t ni ght. I dont remember wha t happened. Offi cer Bowler then
said, We know tha t you didnt mea n to atta ck her. Why dont you a t least wri te to her mother & apologi ze. Its the
least you ca n do. Mi tchell asked, Its not going to be used in court right? He then wrote to Ms . Curtis mother &
a pologized, I never meant to kill her.
Ca n the Crown use his conversation a gainst Mitchell? Give reasons for & a gainst i ts admissibility.
Part IV
The Crown proposes to call Officer Bowler as a wi tness. The Crown has prepa red a will sa y sta tement outlining what
Offi cer Bowler will s tate in court. Offi cer Bowler will indi cate tha t he met Milande on 2 occasions once a t his house
& again during his a rres t & he will testi fy tha t Milande is the man on the surveillance tape . Discuss the admissibility of
Offi cer Bowlers evidence.

FACT SITUATION B
Melissa was a pa tient 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 tha t Dr. Scoffer touched her inappropria tel y. She said nothing. While touching her, on a few occasions Dr.
Scoffer compa red his treatment to tha t of a cupuncture & talked of pressure points & releasing s tress. When Melissa turned 18,
Dr. Scoffer called her a t home & sent her flowers . He said tha t he had alwa ys been interes ted in her, but tha t now that she was
old enough he wanted to da te her. Ini tiall y Melissa refused but finally she ga ve in & went on a few dates . She stopped seeing
hi m when he proposed marriage.
Melissa now wants to sue hi m for damages for sexual assault. For her own peace of mi nd & to find out whether she had been
sexuall y assaulted, she wrote a letter to a physi cian, who was a famil y friend, Dr. Butterfingers. In her letter she s ta ted tha t the
inappropria te touching s ta rted when she s ta rted da ting Dr. Scoffer. Dr. Butterfingers wrote back tha t for her own pea ce of
mi nd she should seek therapy. Melissa ga ve both letters to her lawyer. When she la ter changed lawyers , the 2 letters were
a ccidentall y sent to the prosecution counsel in a criminal case agains t Dr. Scoffer, in whi ch he was cha rged with sexually
a s saulting Melissa. Prosecution Counsel has i ndicated that they a re under a duty to reveal the letters to Defence Counsel.

Part I
Wha t ca n Melissas lawyer do to prevent the 2 l etters from being revealed to Defence Counsel?

Part - II
Si nce ins ti tuting the case for dama ges agains t Dr. Scoffer, Melissa has lea rnt of 2 potential witnesses. One is Ms . X,
another woman who has alleged tha t she was sexuall y assaulted by Dr. Scoffer a round the sa me time as Melissa. Ms .
X clai ms tha t she was also seen by Dr. Scoffer for l ower ba ck pain & tha t a t 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 ba ck. On one occasion he
had pa tted her on her buttocks & told her to keep up the good work. She recalls hi m mentioning something about
a cupuncture & pressure points . The other wi tness is a medi cal pra cti tioner a t the hospital where Dr. Sco ffer works &
he i s ready to testify that under medical ethics there i s no requirement or practice of weighing in the nude.
Wi l l these witnesses be allowed to testify i n Melissas case?
Part III
In the criminal case, Dr. Scoffer had entered a guilty plea . For certain reasons his convi ction was overturned i n his
tri a l. Ca n his guilty pl ea & s ubsequent acquittal be used i n the case by Melissa?