Instructions

You are a judge.  The defendant stands before you charged with murder. The Crown has agreed that she can be tried by a judge alone, without a jury. The following factual scenario summarizes the evidence that has emerged over the course of the trial.  It is now time for you to render a verdict and give your reasons.

Review the factual scenario carefully, and then write a judgment explaining whether the defendant should be convicted of the offence with which she is charged, or of a lesser offence, or should be acquitted.

You should begin with a brief summary of the relevant facts.  If facts are unclear or open to competing interpretations, consider all possibilities and state any conclusions you are reaching and why. 

You should also be sure to discuss all relevant points of law, including the Charter, case law and Criminal Code provisions outlining the elements of the offences in question, and apply them to the facts of this case.  If the state of the law is unclear or undecided, or if there are important dissenting opinions, discuss.  Be sure to address both the Crown and defence positions and identify and assess their relative strengths and weaknesses.

Format

Your assignment can be a maximum of 12 pages in length and must adhere to the following format:

• Double spaced, 12-point font with 1 inch (2.54 cm) margins on all sides
• Accompanied by a cover page that includes the date of submission, your name and student number (not included in the 12 page maximum)

Use headings (just as in the judgments you’ve read) to assist in organizing your analysis.

Factual Scenario

Hyun-mi and Maja are both brilliant and innovative pharmaceutical engineers. They have been fierce rivals since they met 20 years ago as undergraduate students in the biomedical engineering program at U of T and competed with one another for the top spot in their anatomy class.  They both went on to medical school and then earned their PhDs, Hyun-mi at Stanford and Maja at MIT.

They are now employed by rival pharmaceutical companies.  Hyun-mi works for Xetopa Medical, while Maja works for Genam Biotechnology.  Both Hyun-mi and Maja and their respective companies have been hard at work developing a new “tumour agnostic” cancer drug – a drug that could be used to treat any kind of cancer, regardless of where it is in the body, so long as the tumor has the specific molecular alteration that the drug targets. If these efforts are successful they would revolutionize cancer treatment – and be worth billions of dollars to the company that develops and patents the drug first. 

Both Hyun-mi and Maja have entered the clinical trial phase and are close to perfecting their drugs.  Unfortunately for Maja, although the drug she has developed is highly effective it also causes serious side-effects. Health Canada has been threatening to shut down her trial. Desperate to continue her work and beat Hyun-mi, Maja offers Roy, a member of Hyun-mi’s team, $100,000 if he will smuggle out a sample of their drug.  Maja is confident that even with a very small sample she will be able to reverse engineer her competitor’s version and correct the errors in her own.

After several days, Roy reports to Maja that it is simply impossible for him to smuggle a sample of the drug out of the lab.  There are always at least two team members present throughout the work day, and with the intense pressure to perfect and patent the drug, Hyun-mi has taken to sleeping on a cot in the lab so she can monitor things overnight.  Hyun-mi only goes home on Sunday afternoons, when the maintenance crew comes to clean the lab. Maja thanks Roy for the information and begins to formulate an alternative plan. She offers him $20,000 to loan her his pass card over the weekend, which will give her access to the building, and an extra $5000 to tell her the code to unlock the lab.  Roy accepts the offer, but reminds Maja that Hyun-mi is there basically all the time.  Maja tells him not to worry about Hyun-mi because she’ll take care of her.

On Friday night Maja gets Roy’s pass card and drives to Xetopa Medical.  She carefully parks several blocks away and makes her way to the building on foot.  Just before she gets in range of the security cameras she pulls on a chemical protective hood and visor she brought with her from her lab.  She’s carefully blacked out most of the visor so only her eyes show.  Maja pulls out the heavy flashlight she’s brought with her and makes her way up to the lab.  She punches in the code Roy gave her, and opening the door a crack, peers inside.  Hyun-mi is there, with her back to the door, staring intently into a microscope.  She’s wearing head phones and doesn’t look up as Maja opens the door further and steps into the lab.

Maja creeps up behind Hyun-mi and hits her over the head with the flashlight. Hyun-mi falls to the ground unconscious.  Maja rolls over an office chair, maneuvers Hyun-mi into it, and ties her hands behind the chair back and her feet to the base. Maja then makes her way to the refrigerator where the drug is stored and takes several vials.  She returns to check on Hyun-mi, who is still unconscious. She rolls the chair over to a table and places a two-litre bottle of water in front of it.  She opens the bottle, puts a straw in it, and crouching next to Hyun-mi confirms that it’s possible to reach the straw from Hyun-mi’s position. Satisfied that Hyun-mi will have access to water even if she’s not untied until the maintenance team arrives on Sunday morning, Maja leaves.

Maja drops the pass card in Roy’s mailbox, and then drives straight to her lab where she spends the rest of the weekend working on reverse engineering the samples she took. She barely pauses to eat or sleep until late Sunday night when she falls asleep at her desk. She’s awoken early Monday morning by the sound of her phone ringing repeatedly.  When she answers it’s Roy, and he’s hysterical.  It takes a while for her to understand what he’s saying but eventually she grasps that the maintenance crew found Hyun-mi unconscious on Sunday afternoon.  She had clearly regained consciousness at some point: the water had been drunk and there were signs that she had tried to free her hands, but she was still tied to the chair when she was found.  She was rushed to hospital, where a CT angiogram revealed that she had suffered a massive pulmonary embolism.  She was taken to surgery immediately but the damage to her heart and lungs was too extensive and she died.

Maja says, “But I left her water and she was only alone for 36 hours! I don’t understand how this could have happened!” Roy replies, “They ran some blood tests and she had Factor V Leiden.” With her background and training, Maja immediately understands that this means that Hyun-mi would be prone to hypercoagulation and thus at greater risk both for blood clots forming in her legs, and for any clots that did form travelling to her lungs. 

Maja begs Roy not to say anything but Roy is overcome with guilt for assisting her and confesses everything to the police.  Maja is charged with murder under s 229(c) of the Criminal Code in relation to the death of Hyun-mi.

At trial, the pathologist who conducted the postmortem examination confirms that the cause of death was a blood clot that formed in Hyun-mi’s leg and travelled to her lung.  The pathologist also testifies that while the risk is increased exponentially for individuals with Factor V Leiden, prolonged immobility – defined as sitting for more than four hours at a time – increases the risk of blood clots forming in anyone’s legs. Finally, the pathologist states that anyone with medical training would know of the general risk of blood clots resulting from prolonged immobility, and the resulting risk of pulmonary embolism.

Relevant  Charter Provisions

7           Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

11         Any person charged with an offence has the right…

(d)        to be presumed innocent until proven guilty according to law in a fair and public hearing                          by an independent and impartial tribunal

Relevant Criminal Code Provisions

Definitions

2           “Steal” means to commit theft

Homicide

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter or infanticide.

(5) A person commits culpable homicide when he causes the death of a human being,

• by means of an unlawful act;
• by criminal negligence;
• by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
• by wilfully frightening that human being, in the case of a child or sick person.

229 Culpable homicide is murder

• where the person who causes the death of a human being
• means to cause his death, or
• means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
• where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
• where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

231 (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.

…

(7) All murder that is not first degree murder is second degree murder.

Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

• to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it; …

Robbery

343 Every one commits robbery who

• steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
• steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
• assaults any person with intent to steal from him; or
• steals from any person while armed with an offensive weapon or imitation thereof.