UNIVERSITY OF TORONTO FACULTY OF LAW Page 1 of 5

DATE: Monday, April 21, 2014 TIME: 2:00 – 5:00 pm

ANNUAL EXAMINATIONS, 2013-14, APRIL 2014

LAW241H1S EVIDENCE LAW

Examiner: Professor Thorburn

NOTE: 1. This is an open-book examination. You may refer to the course materials, to an annotated Criminal Code, and to any notes and summaries you have prepared. You may NOT use any books other than the casebook assigned for this course.

2. The exam is composed of six (6) questions, which are of different values. Please allocate your time accordingly.

3. Cell phones, pagers and other communication devices are prohibited in exams. Cell phones are not permitted as a time keeping device, therefore should not be visible on the desk during an examination. Communication devices left on the desk during an exam may be removed by the invigilator.

4. Before you begin, ensure that you have written your pseudoname, course name, and the number of the booklet on each examination booklet and the name of the instructor on the first booklet. If you request an additional booklet(s) during the examination, write the required information on the booklet at the time you receive it. No time will be permitted for this at the end of the examination.

5. During the examination, only one student at a time is permitted to leave the examination room. No student may leave within fifteen minutes of the conclusion of the examination.

6. At the end of this examination, the invigilator will ask you to stop writing, count the total number of booklets used, record this on the front of the first booklet, and insert all booklets into the first booklet. For students who are typing their examination, the invigilator will ask you to stop typing and exit Examsoft. You will then return the exam questions and all exam booklets to the invigilator and have your TCard returned to you. Once you have received your TCard you can leave the examination room.

7. Time limits will be strictly enforced. Students who continue to write or type after the examination has ended will have their answer booklets/examination envelope collected separately and may be subject to a penalty.

Annual Examinations, 2013-2014 Evidence Law, Professor Thorburn Page 2 of 5

GENERAL INSTRUCTIONS

You are the judge in the case of R. v. Joseph Quimby. You are asked below to make a number of rulings concerning various evidentiary issues arising from the facts below.

Owing to the Crown’s disclosure obligations, all of the information given below concerning the police investigation is available to the defence. However, owing to the lack of any disclosure obligation on the accused, you should not assume that the Crown is aware of the anticipated testimony or any possible defence witnesses, with the exception of expert witnesses, which the defence must disclose pursuant to s. 657.3(3) of the Criminal Code.

Joseph Quimby will be tried by a court composed of a judge and jury in the Flavelle Superior Court of Justice. Flavelle is a common law province of Canada (of which Springfield is the capital city). Therefore, the Charter and all federal statutes and the common law apply.

FACTS OF THE CASE

On 1 April 2014, Mayor Joseph (“Diamond Joe”) Quimby of Springfield was arrested on a charge of first degree murder in the death of .

Joseph Quimby has a long criminal record stretching back many years. He has been convicted of possession of heroin for the purposes of trafficking (June 2006), uttering death threats under s. 264.1 (September 2001), dangerous operation of a motor vehicle (March 1999) and fraud (January 1998).

Homer (“Shorty”) Simpson is a fairly short man – about 5’6” tall – and a long-time associate of Joseph Quimby’s. They have been friends since high school. As well, Simpson has been working for Joe as a street-level drug trafficker for some years. Simpson was convicted of possession of heroin for the purposes of trafficking in June 2006 and was convicted on two assault charges dating back to February 1998.

Recently, a rival drug-distribution network has arrived in town, run by Montgomery (“Monty”) Burns. Burns has been able to expand his distribution network quickly by hiring a number of Quimby’s street-level traffickers to work for him.

The police allege that Quimby received a call on the evening of 9 May 2013 informing him that Homer Simpson had begun selling drugs for Burns. Angry at Simpson’s betrayal, the police allege that Quimby telephoned his friend Kent (“Stretch”) Brockman later than evening and instructed him to kill Simpson. (Brockman, a former basketball player on Quimby’s high school team stands about 6’5” tall.) The police further allege that Brockman went out that evening and found Simpson at his home and invited him out on the pretext of breaking into cars together. Once Brockman had Simpson in the car, he drove him to a bridge in a remote area on the outskirts of Springfield. As they walked over the bridge, the police allege that Brockman then pushed Simpson into the rushing water below where he drowned almost immediately. Simpson’s body was found early the next morning (10 May 2013) by a jogger who saw it floating down the river and alerted police. The autopsy showed that the cause of death was drowning and that Simpson had not suffered any physical trauma.

The police have interviewed Joseph Quimby’s assistant at city hall, . Flanders is prepared to testify that at about 9:00 pm on the evening of 9 May 2013, Quimby was in his office in Springfield city hall when Flanders overheard him talking on the phone, saying: “Yeah, get Shorty. I want that guy dead. $10,000 is yours if you rub him out tonight.”

The police also interviewed Joe Quimby’s on-again-off-again wife, Jane Quimby. Joe and Jane had been married for almost twenty years but their marriage broke down early in 2011 and they were divorced in March of 2012. After hearing that Jane had spoken to the police, Joe asked the police if Jane would be allowed to testify against him if they were married. When informed of the law of spousal privilege, he said Annual Examinations, 2013-2014 Evidence Law, Professor Thorburn Page 3 of 5

“well then I’ll just marry her again, won’t I? Then she can’t say a thing!” Joe and Jane Quimby we re- married on 14 February 2014.

Jane Quimby was interviewed by police on 22 December 2013 about her husband’s activities. The police made a video recording of the interview, the relevant portion of which proceeded as follows:

Police: Jane Quimby, you know that it’s important to tell the truth, right?

Jane: Oh yeah, sure.

Police: And you know that the things you tell us could have significant legal consequences, especially for your husband, right? You know how serious this is?

Jane: Uh-huh.

Police: So what do you know about your ex-husband’s relationship with Homer Simpson?

Jane: I know that they’ve had their ups and their downs. Joe was pissed off about that drug deal that Homer screwed up back in 2000 – but you know about that already because you nailed him back then on the death threat charge against Homer. I know that Homer has been working as a dealer for Joe for ages – since 96 or so – but he’d started to work for Monty Burns instead of for Joe.

Police: I see. Now, I understand that you were with your ex-husband on the night Homer died [9 May 2013], is that right?

Jane: Yeah, we were at our old house around about eight o’clock in the evening, arguing about whether I could keep the house after the divorce, when he got a call on his cell phone. I heard him just start screaming into the phone. He went ballistic. Just totally nuts. He started screaming and yelling and turning all red in the face. He said “I’m gonna poke his eyes out!” and other crazy stuff like that. And then he said “I gotta go – something important I gotta take care of” and he just ran off.

Police: Did he give any indication of what had upset him?

Jane: Not really. I heard him say something about Simpson on his way out, but I can’t be sure what it was. He was just muttering something under his breath. But I definitely heard “Simpson.”

The Crown also wishes to adduce evidence of five other alleged murders that have taken place from April to July 2013. In all five cases, the victim was a former street-level drug pusher who had been working for Quimby but had recently started to work for Burns. In all five cases, the victim was pushed off the same bridge where Homer Simpson died on the night of 9 May. Joseph Quimby and are also charged with first degree murder in the death of the first of those street-level drug pushers, Barney Gumble. In that case, the Crown alleges that Gumble was pushed to his death by Brockman on instructions from Quimby on the night of 7 April 2013. No charges have yet been laid in the other four suspected murders. It should be noted that During that same three-month period from April to June 2013, four other people have died by jumping off that same bridge. In each of these four cases, the victim left a suicide note and the police have concluded that there was no foul play involved.

The defence wishes to call Dr. Julius Hibbert, a psychiatrist at Springfield General Hospital who has been engaged in a research program involving connections between the selling of drugs and suicidal tendencies. Dr. Hibbert has an MD from Harvard Medical School and he has published widely in leading psychiatry journals. The defence wishes to call him to testify about his most recent research in rats suggesting that those who pass along narcotics to other rats tend to engage in self-destructive behaviour much more often than would otherwise be the case. So far, Dr. Hibbert has only been able to pursue his Annual Examinations, 2013-2014 Evidence Law, Professor Thorburn Page 4 of 5

research on rats (since he has not yet gained approval from the ethics committee at the hospital to undertake this research on human subjects). Although he has not yet published his findings in a scientific journal, he has discussed the initial findings (along with much of his earlier research) in a major grant application to a government-run granting agency. After his application was subjected to rigorous peer review, Dr. Hibbert received a large grant to fund his further research. So far as he knows, no one else has pursued his line of research on the connection of drug trafficking and suicidal behaviour.

Waylon (“Too Tall”) Smithers is a long-time associate in Monty Burns’ drug distribution network. He is a former basketball player, measuring about 6’4” tall. He is jealous of the attention that Simpson is getting from Burns. He is also going through a messy divorce. Smithers’ old friend Tim Lovejoy has told police that Smithers was wracked with guilt about “what happened to Simpson and all the attention Quimby’s been getting about it.” Further Lovejoy has told police that he saw Smithers outside his lawyer’s office on the afternoon of 22 May 2013 when Smithers told him that he was “going to tell Hutz everything, so that I can get it off my chest.” On the basis of this evidence, the defence will bring a McClure application requiring the production of the notes from the conversation Smithers had with his lawyer on the afternoon of 22 May 2013.

Finally, Joseph Quimby is willing to take the stand in his own defence. He will testify as follows:

Crown: Mr. Quimby, could you tell us what you did on the evening of 9 May 2013?

Quimby: Sure, I was at home with my darling wife, Jane. I got a phone call around 8:00pm from one of my constituents telling me that his garbage was not picked up this morning.

Crown: And then what did you do after you received that phone call?

Quimby: Like always, I knew I had to go to city hall to take care of this matter for my constituent. That’s my job, eh, to be the customer-service agent for every single taxpayer in this town. I take that obligation seriously. Anyway, I told Jane that I had to go to make sure that that garbage got picked up pronto.

Crown: And when did you arrive at your office in city hall?

Quimby: Around a quarter to nine, I think.

Crown: And what did you do when you got to the office?

Quimby: I called the garbage contractor and told them to go get that garbage or they’d never see another city contract again.

Crown: And did you make any other phone calls while you were at your city hall office that evening?

Quimby: Yeah, I called my old friend Kent Brockman and asked how his little boy is doing. He was in hospital with a broken leg, you know. And I wanted to make sure everything was OK. I love that kid.

Crown: Did you discuss anything else with Mr. Brockman besides his son’s health?

Quimby: Nope. That was it.

Crown: Thank you, Mr. Quimby.

You are the judge in this case. Please set out your rulings on the following evidentiary issues in this case.

Annual Examinations, 2013-2014 Evidence Law, Professor Thorburn Page 5 of 5

QUESTIONS

QUESTION 1. (10 MARKS)

The Crown brings a pre-trial application to have the following evidence admitted as part of its case: a. Evidence of Quimby’s 2001 conviction for uttering death threats against Homer Simpson as evidence of his violent tendency toward Simpson. b. Evidence that Homer Simpson was selling drugs first for Quimby and then for Burns, as evidence of Quimby’s motive to kill Simpson. The defence objects to the admission of each.

QUESTION 2. (15 MARKS)

The Crown wishes to call Ned Flanders to testify as to what he heard Joseph Quimby say over the telephone on the night of 9 May. The defence objects on grounds of hearsay.

QUESTION 3. (15 MARKS)

The Crown wishes to introduce the transcript of the police interview with Jane Quimby. The defence objects on grounds of hearsay and on grounds of spousal privilege.

QUESTION 4. (15 MARKS)

The defence brings an application to exclude Quimby’s criminal record and to prevent the Crown from cross-examining on it. The Crown insists that they should be entitled to admit the whole of Quimby’s criminal record and to cross-examination on the underlying facts of the previous convictions, as well.

QUESTION 5. (15 MARKS)

The Crown wishes to adduce evidence of the five other suspicious deaths by pushing off the bridge (including the killing of Barney Gumble) as “similar fact evidence.” The defence objects.

QUESTION 6. (15 MARKS)

The defence wishes to introduce Dr. Hibbert’s expert testimony to suggest that Simpson died as a result of suicide, rather than homicide. The Crown objects on the grounds that Dr. Hibbert’s findings do not meet the minimum standards for scientific opinion evidence.

QUESTION 7. (15 MARKS)

The defence brings a McClure application to admit the solicitor-client communications between Smithers and his lawyer Hutz.

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