QUESTION A

Which of the following are pretrial applications and which can be made at trial? For pretrial motions, identify the time limitations, if any.

1. Application for an adjournment
2. Application to exclude evidence under the Charter
3. Application for a stay under the Charter
4. Application for a severance of counts
5. Application for further disclosure

FACT :

You are a paralegal representing 53-year-old Gary Wilkinson. He has been charged with "theft under $5,000". This is Gary's first appearance on the charge. You are given the Crown disclosure package. Your see that it is alleged that he took a bottle of mouthwash valued at $3.95 from a local drugstore. The crown disclosure does not show any prior criminal record. While you are interviewing Gary, he tells you that he had no intention of paying for the mouthwash. Gary also advises you that his permanent address is a local men's shelter. You notice that Gary looks haggard and unwashed. He is wearing old and dirty clothing and smells of alcohol. Gary tells you he wants to plead guilty and get out of there. You tell Gary that it is best to have a resolution meeting with the Crown before entering a plea. You attend the arraignment and ask that the matter be set down for a resolution meeting. While sitting in the waiting area Gary lights a cigarette. He is immediately reprimanded by a Court Services Officer, so Gary drops the cigarette on the carpet and steps on it. The Crown Attorney, who is leaving the courtroom on the way to the Resolution office, observes Gary's action. You wait for your turn for a resolution meeting.

Based on the information you gathered from the above scenario and working with the Criminal Code, answer the following questions in memo format.

QUESTIONS B

1. What section of the Criminal Code applies to this offence?
2. Under which procedures may this offence be prosecuted?
3. Which procedure is the Crown likely to adopt in this case and why?
4. What range of outcomes should you consider with regard to the proposed disposition of this matter?
5. In the resolution meeting you negotiate a plea agreement with the Crown. What disposition would you advocate and why?
6. In making your proposals to the Crown, what factors about your client would consider putting forward as mitigating factors and how would you deal with aggravating factors, if any?
7. Support your proposed disposition by citing the pertinent sentencing principles and alternatives available by statute or crown discretion.