You should allow sufficient time to benefit from feedback prior to your final exam. Please submit the assignment once you have completed Unit 13.
Part A. Problem Solving
For Part A, you will be presented with a fact pattern. Applying what you have learned about administrative and criminal law, you will analyze the fact pattern by answering five questions.
Read the following scenario
Lenka Marbella and Jules Chow had been living in Canada as common law spouses for two years when Lenka became seriously ill and had to quit her job. Her doctor prescribed opioid drugs for pain control. At the same time, Jules was on stress leave from his job as a mortuary attendant. According to his therapist, he had seen one too many victims of serious crime and was suffering from PTSD. The couple found it difficult to survive on Jules disability pay. So, when Lenka gradually began to feel better, instead of telling her doctor, she started selling her prescription drugs on the street. A year later, one of her customers, Tyson, followed her home and, before she could open her door, grabbed the bag she used for carrying her prescriptions. When Lenka tried to pull it back, Tyson threw her against her front door and punched her in the stomach. All this happened in sight of an undercover police car that had been tailing Tyson who was a known drug dealer. One officer grabbed Tyson and hustled him into the car. The other, instead of helping Lenka, yelled, “You’re under arrest” and wrestled her to the ground, banging her head off the sidewalk in the process. Meanwhile Jules, alerted by the racket, raced out of the house and found Lenka lying on the ground motionless in a pool of blood. When paramedics arrived, they pronounced her dead at the scene.
No charges were ever filed against the police. All of this was so disturbing for Jules that he had to be hospitalized and sedated. His PTSD returned in full force and he was unable to return to work. When he tried to apply for criminal injuries compensation, the Chair of the Board refused to send him the application form on the ground that no charges had been laid against the police and no crime proven.
Jules found a lawyer willing to take the case to judicial review. The court held that the Board had denied him procedural fairness by raising the application evidentiary threshold so high that it precluded a chance to be heard at all. The court sent the case back to the Board with a direction to issue Jules with an application package. When Jules’s case was eventually heard, the Chair of the Board was on the three person panel. Jules’ lawyer argued that he should be eligible for compensation because, as a result of criminal acts by the police and Tyson, he was suffering from severe mental and nervous shock.
The panel in its decision, focused on the criminal acts of Lenka and reasoned that, because she was participating in crime herself, she could not be classified as a “victim” under applicable legislation. Lenka would not have been eligible for compensation had she lived. Thus, the reasoning of the panel went, Jules, in his role as her surviving spouse, could not be eligible either. And anyway, Jules must have known what was going on. The panel refused to allow Jules to testify about his illness on the ground that it was irrelevant. Nor would they allow a neighbor who saw the incident to testify as a witness on Jules’ behalf. Now Jules wants to return to the court for another judicial review.
Answer the questions
Applying what you have learned about the rules of natural justice and assuming you are acting for Jules, answer the following questions.
1. Explain what breaches of natural justice may have occurred here?
2. Explain what error of law may have occurred with respect to Jules’ status before the panel?
3. Find at least two court (not tribunal) cases in CanLII that may help your arguments before the court. You may narrow your search by typing “criminal injuries compensation” as one of the terms in the document text field. Discuss how you apply these cases to Jules’ judicial review
4. Keeping in mind that this is a judicial review, not an appeal, if the court decides in Jules’ favour, what would be the likely outcome?
5. Is there any information missing from the scenario that might affect the ultimate result of this case?
Part B. Essay Question
Background information for your essay
The entrenchment of the Charter of Rights and Freedoms in 1982 has had a dramatic effect on the criminal justice system. For centuries before the Charter, the right to be presumed innocent until proven guilty was a core tenet of many criminal law jurisdictions. But that right did not preclude tactics that placed overwhelming power in the hands of the state through police and prosecutors. The legal rights set out in sections 7 through 14 of the Charter emphasize individual rights of the accused. The question is how far should these individual rights go? Where should the balance lie between protection of an accused and protection of the community from criminal activities, especially those involving crimes of violence?