Criminal Procedure And Evidence Midterm

the doctrine that requires judges, in resolvinga particular case, to follow the decision in a previous case where the factsituations in the two cases are similar.

This requires a judge to follow previous decisions ofthe highest court within that particular jurisdiction, provincially. - allcourts of course bound by SCC.

Decisions of higher court in another province are notbinding, but are persuasive. How persuasive depends on many factors.Court can even refer to non Canadian decisions - must show common legaltradition, etc

Different Judge agrees but for different reason

- The highest legislative instrument.

- Takes paramoncy over all other statutes, whetherfederal or provincial.

- Embedded in our Constitution Act 1982pan

Certain major sections of it significantly effect therules of criminal procedure and evidence.

It sets the backdrop for mostlegal arguments involving principles of justice.

It has come to significantlyshape the way policing is done in Canada.

• s. 7• S. 8.• S. 9• S. 10• s. 11• s. 13• s. 24d

Life liberty and security of the person - but moreimportantly - the right not to be deprived of them except in accordance withthe principles of fundamental justice.

-protection from vague or overbroad laws;

-a criminal offence punishable by imprisonment must have a mens rea component;

-the right to full answer and defence;

-the right to cross examine witnesses against you;

-the right to full disclosure;

-protection against abuse of process;

-the right to a fair trial.

Search and Seizure

protection against unreasonable search and seizure;

to be reasonable must be authorized by law;

warrantless searches are prima facia unreasonable;

must be conducted in a reasonable manner

Random Stop Section

protection from arbitrary detention; •

basically requires a reason;•

Allows judicial review of police decision;•

prevents random interference by police with ourliberty.

Right to Counsel

i)right to be informed of reason for detention;

ii) informational component - ie informing them ofrights and availability of counsel;

iii) right to access counsel;

iv) right to havevalidity of detention determined - -ie brought before judge as soon aspracticable.

Procedural Rights

not to be compelled as awitness against self; to be presumption ofinnocence;

to have right toreasonable bail;

to have a trial by jury;•

must be an offence attime you commit it;• not to be tried againafter acquittal;•

to lesser sentence wereit has changed since commission of offence.

Right against self incrimination

if you give evidence for a friend, and sayyou committed the offence, not him, you are protected by s. 13 from thisevidence being lead against you.

Remedies section of the Charter

• When a breach occurs, s. 24 provides the court withpower to remedy the breach.• This section also provides the power to excuse thebreach.• Remediesinclude exclusion of evidence, stays of proceeding and other remedies.

Reasonable Limits

• This makes our Charter more flexible than the UScounterpart• It balances the rights of individual v. rights ofpublic.

Makes the Charter Supreme

It overrules all other legislation

• The ability to make people dowhat you say.

• Prosecutorial

• Offence Classification

• Time

• Territory

1. Jurisdiction of Fed. Gov

2. Jurisdiction of Prov. Gov

3. Overlapping Jurisdictions

Ifeither legislates outside its jurisdiction, it is invalid or Ultra Vires.

• Enacting criminal law andprocedure

• Establishing and maintainingpenitentiaries• Peace order and good government

• Administration of justice

• Establish and maintain prisons

• Property and civil rights

• Enforcing provincial laws

Prisons- divided by sentencelength:

• 2 years and over – federal

• Less than 2 years –provincial

Administration of justicesimilar to criminal procedure = duplication

• Police –Provincialand federal forces

• Crown- Provincial and federalcrown

Jurisdiction of crown

• Depends on act being prosecuted Provincial acts = provincialcrown

Criminal code = provincial crown

Federal acts = federal crown

• Either can delegatejurisdiction when mixed charges.

Effects procedure to follow and rights of the accused.

Effects which court has jurisdiction, pre trialprocedure and the right to jury.

Impactson other area of jurisdiction such as time limits to prosecute, and the lengthof sentence.

s. 469- Most serious

• Exclusive jurisdictionSupreme Court

S. 553 - Least serious

• Absolute jurisdictionProvincial Court

Other Indictable

• Accused may elect levelof trial

Least serious.

• 6 months max jail sent and $2,000 fine (someexceptions).

• 6 months limitation period (exceptions). Provincial court has absolute jurisdiction

Crownhas an election re indictable or summary This election dictatesprocedure:

• Time limits

• Accused elections

• Sentence range

Under Statute

• Indictable offences - No limitation

• Summary offences - 6 month limit

Under The Charter

• s. 11requires trial within reasonable time

R. v. Askov – Supreme Court of Canada Fairly strict interpretation of s. 11 delay argument

Test - formulated taking certain factors into account

• Length of Delay

• Explanation for delay

• Waiver of delay by accusedPrejudice to accused

R. v. Morin - SupremeCourt of Canada

• Pre-charge delay not counted

• Accused has burden of proving delay unreasonable

• Waiver-if accused consents to trial, can be inferred

1 ) Freedom of the individual - their privacy and possessions are not to beinvaded except for the most compelling reasons

2) Interest of society in finding wrongdoers andrepressing crime

1)Police need reasonable grounds to believe a serious offence has been committed

2) Thepolice need reasonable ground to believe that the article in question is eitherthe fruit of the crime, or is material evidence to prove the crime

3)Police must believe the person in possession committed the crime - or hisrefusal to provide the item is unreasonable n

4)Police must not keep the article or retain it for any time longer than isreasonably necessary for the case

5) Thelawfulness of the conduct of the police must be judged at the time and not bywhat happened afterwards

1) Constitutional documents

2) Statutes

3) Common law

1) Reasonable expectation of privacy

2) Standing

3) Abandonment

4) Exigent circumstances

5) Reasonableness of police conduct

6) Waiver / consent

Warrantless search

1. any search without warrant presumed unreasonable

2. only protects REASONABLE expectation of privacy

3. An accused person that fails to prove reasonable expectation of privacy when claiming a sec.8 has no STANDING

1) A warrantless searchof a house is justified only in an emergency.

2) A person does not havea reasonable expectation of privacy in someone else's residence.

3) Apassenger in a vehicle does not have a reasonable expectation of privacy in thevehicle’scontents.

(1) Was the accusedpresent at the time of the search?

(2) Did the accused havepossession or control over the property or place that was searched? (3) Was the accused theowner of the property or place that was searched?

(4) Did the accusedhistorically use the property or place that was searched?

(5) Did the accused havethe ability to regulate or control the access of other people to and from theplace that was searched?

(6) Did the accused had asubjective expectation of privacy in the place or property searched, and wasthis expectation objectively reasonable?

Charter rights are personal,not attaching to things or places. You have no standing to argue abreach of someone else’s rights.

No reasonable expectation of privacy in voluntarilyabandoned property.

Doesnot apply if person in custody.

Exigent circumstances can make a warrantless searchreasonable.

Generally relate to an imminent danger of the loss ordestruction of evidence if the search or seizure is delayed.

Safetyconcerns can also provide a basis for a warrantless entry.

Consent must be “freely given.”

A consent search is a waiver of a Charter right. Any waiver must be an informed waiver.

Must be made aware of the purpose of the intendedsearch and his right to withhold that consent and insist on a warrant beingobtained.

Must be clear and unequivocal and with full knowledgeof the right.

Must be aware of consequences of waiver.

Only an individual can consent to the search of his orher person. A spouse can consent to a search of the family home. Managementcannot consent to search of a hotel room.

At common law a police officer has the power to search a person as incident to a lawful arrest, and to take from his person any property which the officer reasonably believes is connected with the offense charged, or which may be used as evidence against the person arrested, or any weapon or instrument found upon the person arrested.

A police officer is entitled to conduct a frisk search for weapons of individuals who are detained for investigative reasons even if the officer lacks reasonable grounds for a search. A search incidental to an investigative detention is permitted where the officer has reasonable cause to suspect that the detained person is involved in criminal activity and the officer has reason to be concerned about his or her safety.

Grounds

• Arrest – none needed

• Detention – reasonable suspicion

Scope

• Arrest – offense related, evidence, or weapons

• Detention - weapons

• Should generally be conducted at the station except in exigent circumstances.

• In field only justified where there is urgency to search for weapons that could be used on the accused, the arresting officers or other individuals.

• The police would also have to show why it would have been unsafe to wait and conduct the strip search at the police station.

1- Why is a strip search required

2- Can you do it at the detachment. If not, why not.

3- Will the strip search be conducted in a manner thatensures the health and safety of all involved.

4- Will the strip search be authorized by a policeofficer acting in a supervisory capacity. If not, why not.

5- Has it been ensured that the police officerscarrying out the strip search are the same gender as the accused

6- Will the number of officers involved in the searchbe no more than is reasonably necessary in the circumstances.

7- What is the minimum force necessary to conduct the search

8- Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search.

9- Will the search be conducted as quickly as possible.

10- Will the strip search only involve a visual inspection of the arrestees genital or anal areas without physical contact.

11-If visual inspection reveals the presence of a weapon or evidence in a body cavity, will the detainee be given the option of removing the object himself or having the object removed by a trained medical professional.

12-Will a proper record be kept of the reasons for and the manner in which the strip search was conducted.

The common law permits places to be searchedincidental to arrest.

Not a standard of reasonable and probable grounds.

There must be some reasonable basis for doing what thepolice officer did.

Includes the car if search conducted contemporaneouswith arrest.

Includes dwelling-houses- “protective sweep”. They have the authority not only to secure or “sweep” the premises for the presence of others butalso to search and preserve evidence.

 On detention, a person’s s. 10 rights are triggered, and the right to remain silent.

 If not detained, the law allow police to question without warning.

 A police ID stop does not amount to detention The mere fact of a conversation between a citizen and a police officer does not raise a presumption of detention.

 The police may question people on the street, in the back of police cars, or at a police station.

 Although the police may not compel answers, they are entitled to question anyone whom they believe may have useful information.

 The subjective belief of the person being questioned is a factor in determining whether there is a detention.

 Compulsion will not be inferred simply because a police officer asks questions

 The common law has long-recognized that when investigators lawfully engaged in a search for a specific purpose come across other items of evidentiary value, or forensic importance, they are entitled to seize them.

 Provisions in the Code and CDSA now allow plain view seizure of “anything that on reasonable grounds he believes has been obtained by or has been used in the commission of an offence,” and anything “ that will afford evidence in respect of an offence.”

 Police have implicit authority to walk up to and knock on door of a residence, if it is for a legitimate purpose.

 If there is an unauthorized purpose such as collecting evidence against the accused, the courts will hold this to be a search and if it is without warrant it will be unreasonable and a breach of s. 8.

Reasonable Grounds

Prior Judicial Authorizationprocess

 Prior to issuing a search warrant under either the Criminal Code or C.D.S.A., the justice of the peace or judge must first be satisfied that there are reasonable grounds to believe that the offence in question is being committed or has already been committed and that evidence of the offence is presently located at the place to be searched. Reasonable Grounds cont.

 Supreme Court of Canada defined the term "reasonable grounds" to mean that there must be a "reasonable probability" that a suspect has committed or is committing a criminal offence and that evidence of the offence is located at a particular place. This "reasonable probability" standard applies to both warrantless searches and to searches done with a warrant. The police do not require "proof beyond a reasonable doubt" prior to conducting a search because the reasonable doubt standard does not apply at the investigative stage.

1.Was the information compelling?

• level of detail

• recency of the information

• how the source obtained the information.

2- Was the source of that information reliable? • prior performance of source

3- Was the information corroborated by further police investigation?

• Compel attendance of accused in court.

• Protect people.

• Prevent continuation of offence.

• Requires power to talk to people.

• Ask questions.

- Theycan ask anyone any question… you don’t have to answer and in certain instancesthey have to tell you, you can seek legal advice before answering a questionetc.

• Not every question is a detention.

• conversation with a citizen does not raise a presumption of detention

• may question on street, in cars, or at station

• may not compel answers, but can question anyone they believe has useful information

• subjective belief of the person is a factor in determining whether there is a detention

• compulsion will not be inferred simply because a police officer asks questions

• Articulable cause detention

• Requires a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.

• It is not enough to show the police had a subjective belief that the detainees were engaged in criminal activity.

Notice the use of the term “reasonable cause to suspect” instead of RPG to believe, and “is criminally implicated” instead of “has committed an offence”

So 6th sense does not cut it. Officer’s experience is relevant, but the facts must be objectively verifiable

• the nature of the duty• the nature and extent of the interference • the importance of the duty to the public good • nature of the liberty affected

• 1) police safety

• 2) an individual’s rights to be free from unreasonable search and seizure

Requires subjective belief inofficer safety issue and there must be evidence to support the existence ofreasonable grounds to believe that a search was necessary for officer safety.

1- Officer is only entitled to conduct a pat-down search for the purpose of ensuring officer safety. 2- Search incidental to an investigative detention only authorized where the circumstances warrant a genuine concern for officer safety.

Anyone/witness can arrest anyone commits a breach of the peach/join/renew

- Must give person over to peace officer

- can use reasonable force proportionate

- breach must be serious disturbance, that if not stopped may escalate into assault or serious property damage

Anyone may arrest without warrant

- a person found committing indictable offence

- a person escaping from or being freshly pursued by someone with authority to arrest•remember hybrid offence, deemed indictable until prosecutor elects

• courts have said that when lay person arrests under this section, the Charter applies as if a government agent was doing it

Owner of property or authorized agent

May arrest without warrant

- personfinds committing criminal offence on or in relation to property he or she owns

- Broader than general arrest provision

Mustdeliver arrested person to peace officer forthwith

• person found committing criminal offence

• person has committed indictable offence or person he believes on rpg has committed indictable offence

• person he believes on RPG is about to commit indictable offence

• Must subjectively have RPG for arrest

• Grounds must be objectively justifiable

• Can take into account all info available

• Can disregard only info he has good reason to believe is unreliable

• Not a post facto analysis… all about grounds. If wrong, doesn’t matter as long as the grounds were good. And if you had a “hunch” someone has drugs and you’re right, that’s not good grounds.

• Just because your facts prove to be false, does not make arrest unlawful

 corroborative evidence confirming credibility and criminal aspect

 previous use of tipster

 other investigations confirms some points

 detail of tip

 informants source of knowledge

• Officer could enter private premises without consent to arrest person without warrant if offence indictable  if officer believes on rpg person committed offence if officer believes on rpg person is in residence and if proper announcement made

• Found warrantless arrests in dwelling house prohibited because privacy interest of individual outweighs interests of police

• prior to warrantless arrest in dwelling house police must obtain a warrant to enter for purpose of arrest

 reasonable grounds

• for arrest

• for belief person will be in dwelling house

• No such warrant provision existed in code - so court read one in

• Parliament amended Code to include one

hot pursuit

exigent circumstances

proper announcement

Establish presence by knocking on door

establish authority - id

communicate purpose - lawful reason for entry

(2) A peace officer shall not arrest a person without warrant for(a) an indictable offence mentioned in section 553,(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or(c) an offence punishable on summary conviction,in any case where(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to(i) establish the identity of the person,(ii) secure or preserve evidence of or relating to the offence, or(iii) prevent the continuation or repetition of the offence or the commission of another offence,may be satisfied without so arresting the person, and(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

• summons, PTA, AN

• with or without conditions

• police issue or JP

• all confer jurisdiction on court under code

• if accused fails to appear - court can issue warrant for his or her arrest

 S. 9 on Charter sets minimum constitutional standard on law or arrest Cannot be arbitrary If test for articulable cause detention met, then stop is not arbitrary

It effects the admissibility of the evidence. It would suck to lose evidence such as weapons etc.

• if he asks for counsel, must stop questioning until he has had chance to talk to counsel - get legal advise

• taken back to station - given privacy and access to phone and 24 hour free duty counsel number - police ensure lawyer on line and give accused privacy and time to talk

• once he has talked, they can interview him again

 Information sworn, s. 504 JP issues - based on RPG re offence and accused• police attend and swear all information true

- in warrantless arrest this is done after

- in arrest WITH warrant, done before arrest

 Once charges layed, JP can issue warrant for accused if necessary and no other way to compel appearance • s. 507 (4) - rpg to believe necessary in in public interest to issue warrant• otherwise summons accused - served with it and compelled to appear

• identify accused

• secure and preserve evidence

• prevent continuation of offence

• ensure safety of witness or victim

• ensure accused attendance at court

• can release and serve with summons later

• can release on promise to appear

• can release on recognizance - with or without surety or cash deposit

 s. 503 - can release on conditions - undertaking

 All of these compel attendance in court on first appearance date Failure to appear can result in bench warrant and a separate charge of failure to appear

Last option: hold in custody and bring before judge• if this is done, must be without delay if judgeavailable or within 24 hours

 Final option - hold in custody and bring before judge

• if this is done, must be without delay if judge available or within 24 hours So accused is kept in custody and taken to police station

• finger printed and processed and since it is a weekday the accused is transported to court

.• arresting officer prepares a report to crown • information is drafted -It and the officer appear before a JP and the information within the report is sworn to be true and the JP signs the information The information creates the court file.

 The information is taken before the judge and the accused is taken in custody before a judge, and the judge takes formal jurisdiction over the offence and the accused.

 At this point, the judge has authority over the accused and the accused is offered the right to have the judge review his detention

 Referred to as a bail hearing - show cause hearing or judicial interim release hearing

• can release without condition

• can release with conditions

• on an undertaking

• on a recognizance with sureties with cash deposit

 a) to ensure attendance in court

 b) to ensure safety of public

 c) confidence of community in CJS

 Defence take position

• An agreement may be reached and an order can be made by consent

 If no agreement is reached a hearing is conducted right then and there

 s. 515(1) says crown must show cause for detention

 S. 515(6) is a reverse onus provision

• accused must show cause for release

• ie more serious offences

• offences while on bail

• seriousness of offence

• harm to others or community

• attitude towards offence or police or system

• previous criminal record

• character of accused

• possible defences

• weakness in crown case

• likely sentence - lengthy detention pre trial will outweigh seriousness of crime

• prejudice to accused re detention

 perhaps business

 sole supporter of family

 health issues

• other alternative to detention

 Can risk be managed on bail in community

• accused connections to community

• accused age and support in community

• how community will look upon CJS if accused released

• Release the accused on an Undertaking to appear – no conditions

• Release the accused on conditions either on an Undertaking or a Recognizance without deposit

• Release the accused with conditions and require a cash deposit or surety

• Detain the accused

• Primary

 Ensure attendance in court

• Secondary

 Safety of public or victim or witness

• Tertiary

 Maintain confidence in administration of justice

that which tends to prove a fact in issue or something that may satisfy the enquirer of the fact’s existence

 1) Oral evidence

 2) Documentary evidence

 3) Physical evidence

 The role of the judge is to ensure only admissible evidence is introduced

 1) search for truth

 2) to ensure a fair and just process of adjudicating guilt

 If the procedural rules can be said to be primarily aimed at the search for truth, the evidentiary rules can be said to be aimed primarily at fairness and justice

 1. The common law

 2. Statute

 3. The Charter

 4. Evidence scholarship

5. ethical rules

 Relevance

 Probative Value

 Prejudicial Effect

 Fairness

It tends to prove a fact of issue/the guilt of the accused…if it has nothing to do with the accused, it is irrelevant

 The basic rule of evidence is that a party wishing to adduce it at trial must satisfy the court that it is relevant and admissible. Burden is on the balance of probabilities

 -Does it go to prove issue in question

 -What is the strength of the inference to be drawn

 -How reliable is the evidence

 1) Moral prejudice

 -Arises in case of bad character evidence

 -Danger jury will convict because accused is bad person

 2) Reasoning prejudice

 -It distracts the jury from proper focus

 -It unduly arouses the jury's emotions

ex. women's testimony is unreliable

 Established a consitutionalized common law discretion to exclude evidence that would render the trial unfair

 A fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the public.

 Also protects the repute of the administration of justice

 Unfairness in the way evidence is taken, may effect the admission of that evidence at trial, but does not necessarily do so

 Exclusionary rules start with the presumption that certain types of evidence are inadmissible. This is generally justified on the basis that they are inherently unreliable and unnecessary.

 The Hearsay rule is the primary example related to police officers.

 A declaration made out of court without the solemnity or process associated with that environment is prima facia inadmissible.

A) Made out of court

- Generally means any statement not given in court by the individual who originally made it.

B) Used to prove truth of what is being asserted

eg - police officer testifies that accused offered to sell him cocaine Not hearsay, because we are not trying to prove the accused did “want” to sell cocaine to the officer Just want to prove he made the statement

1) Unreliable

 not made under oath

 witness not personally before judge to assess

 absence of cross examination to guard against fabrication and inaccuracy

2) Jury distrust

 judicial doubt as to jury’s ability to properly assess hearsay

3) Fairness and procedural rights

 right to challenge sources of evidence mandates presumptive exclusions of out of court statements.

necessary and

reliable

 hearsay usually not the best evidence

 some situations arise where the court must chose between hearsay evidence or no evidence necessity is founded on the need to get at the truth

 A) Witness is deceased

 B) Witness is missing

 C) Witness is not compellable or info is privileged

 D) Witness is a child or otherwise incompetent to swear

 Relates to concerns about perception, memory, narration and sincerity

 If the circumstances of the making of the statement are such that these concerns are eliminated or at least significantly reduced, then it can be said that the evidence is sufficiently reliable to be received and considered as part of the pool of evidence - R. v. Starr - SCC 2000

admissions and confessions

 Admitted without reliability/necessity test

 Some do not even consider it hearsay

 How can the accused say that they are not trustworthy or that their previous statement was untrue or that they have no opportunity for cross examine themselves

 Only crown can adduce.

 Basically an admission to one or more of the elements of the offence

 Concept is that someone who makes a statement against his penal interests should be believed because no one would do this unless it was true

 Crown can adduce but must prove it to be voluntary

 If the statement is made to a “person in authority” it is presumed involuntary

 Burden on crown to prove this

 Concept is that a confession to a person in authority is presumptively given in a situation where an oppressive atmosphere exists between the accused the person

 Only applies to the accused

 Only to statements made to person in authority

 Only to statements tendered by crown

 Only to statements made after offence put in to incriminate or contradict him

 Does not apply to statements which are part of actus reus ex. "i'm going to kill you!!"

 Does not apply to statements tendered as original evidence

 S. 24(2) of the Charter allows a judge to exclude evidence based on a Charter breach.

 S. 24(1) allows a judge to stay the charges if the breach is severe.

 If evidence is obtained in a manner that breaches a Charter right, it is subject to potential exclusion under s. 24(2)

 The onus is on the accused to prove the breach and to establish that the evidence must be excluded

 Certain actions cause an inference of a breach such as a warrantless search

 A) Will the admission effect fairness of trial

 B) Is the breach serious

 C) Will exclusion bring admin of justice into disrepute

 -Primary aim is to prevent accused providing evidence against himself

 -Requires classification of evidence as conscriptive or non-conscriptive

 -Evidence is non-copnscriptive where accused is not forced to participate in creation or discovery of the evidence. Admission of non-conscriptive evidence will rarely render the trial unfair

 A) Seriousness of breach

 B) Effect of exclusion on repute

 Evidence is conscriptive where accused is compelled to incriminate himself

 Derivative evidence obtained from statements which are conscriptive, is also conscriptive

 Where crown establishes on balance probabilities that derivative evidence would have been discovered by alternate non-conscriptive means, then admission will not render the trial unfair

 Non-conscriptive evidence generally admitted if breach not too serious Conscriptive (evidence that is created by the accused being forced to participate in something) evidence, generally excluded

Direct

-  Directly proves a fact in issue

 Eg. Eye witness who saw the crime being committed

Circumstantial

-  Prove surrounding facts

 Ask judge to infer other facts

 Inference must be reasonable

 Facts must be inconsistent with any other reasonable conclusion based on evidence

 Eg. Evidence of residency in grow op.

 Only a witness under oath can testify at common law

 An oath must be binding on the conscience of the witness

 Generally - all witnesses are presumed competent to testify if the understand the oath/ affirmation

Children under 14

 Court must hold inquiry

 If child understands, oath can be sworn

 If do not, but know it is important to tell truth, can testify unsworn

 If not to second, cannot testify

 Question - any other way to get child's evidence before court???

 Child can now testify without swearing

 Limits rights of defense on cross

 Allows children to testify buy video easier

 Limits attack by defense on credibility

 All witnesses are competent to testify if they understand the nature and consequences of the oath.

 If witness does not understand the nature of the oath they are incompetent to testify.

 A hearing is done to establish the issue.

 Generally all competent witnesses are compellable.

 Accused competent for defence not compellable. Also spouses and jointly tried co-accused.

 Generally mere personal belief or opinion is not evidence

 Lay Opinion Exception

- Can be given if you can accurately set out facts observed and probative value outweighs prejudice

Eg - Speed, identity, impairment

Expert Opinion Exception

 Persons with special skills can be asked their opinion upon matters in issue

 The court must first make a finding that the expert is qualified

 Expert opinion is admissible where necessary to aid finder of fact.

Examples Finger print collecting and comparison - calls for specialized knowledge PPT aspect  Dog trainer

 Must be shown to be relevant

 Discretion to exclude if probative value is outweighed by prejudicial effect

 Must be collected in accord with the Charter Eg.  Physical exhibits The drugs The weapons Blood samples

Eg. Keys seized from accused at grow - Relevant because they go to proof of control of premises

 Must assist oral evidence

 Must fairly and accurately represent facts

 Photographs Of victim, injuries, etc Diagrams Of grow op Demonstrations of special equipment Re FLIR Re-enactment

federal

common law - case law

1. Judge today must decide the same way judges previously have

2. Follow the decisions of higher courts

the ability to force things to do things

the feds of course

length of time available to prosecute;

length of sentence;

what level of court; etc.

breach to charter can cause jurisdiction to lose conviction all together, empowers court to throw charges out

The constitution - there are statutory powers granted to the police

There are common law powers granted to the police

It is the ACCUSED's right. It does not attach to a place, it is attached to the person

warrantless. automatically. the crown has to prove reasonableness.

Who's in control of the place?

Who has historically used the place?

Do you subjectively believe you have a privacy interest?

Yes? Then grant you standing to challenge reasonableness.

Abandoned property, however, no longer expectation of privacy.

1. fear of personal safety

2. fear of public safety

3. destruction of evidence.

understand the right and freely, voluntarily, with full knowledge give it up.

plain view. as long as you're lawfully standing where you are.

has to be more than suspicion...no longer about a hunch.

It is when suspicion is replaced with probability.

No, not necessarily.

purpose

authority

and presence

Release on scene

transport to court

(more detail in other q cards)

the strength of the evidence vs. how much it might prejudice the jury

does this go to prove a fact in issue

rules that a court can use to kick evidence out.

generally, look for

reliable,

necessary,

relevant evidence.

If it falls short somewhere, it might be a problem.

witness dead, missing, etc.

maybe the way the evidence was taken shows elements of reliability

It was voluntary.

depends on the act behind prosecuted

prov acts = prov crown

crim code = prov crown

fed acts = fed crown

either can delegate jurisdiction when mixed charges

prov crown prosecutes criminal and provincial offences

federal crown prosecutes several federal acts.

either can prosecute offences within other crown jurisdiction if authorized to do so by other crown.

procedure and rights

which court has jurisdiction of pre-trial, procedure, and rights of jury

impacts time limits to prosecute and length of sentence

most serious = exclusive jurisdiction of supreme court

least serious = absolute jurisdiction of provincial court

other indictable = accused may elect level of trial

no time limitations

least serious

- 6 month ma$2000

- 6 month limitation period

- provincial court absolute jurisdiction

crown has an election - indictable or summary

election dictates procedure

- time limits

- accused elections

-sentence range

- length of delay

- explanation for delay

- waiver of delay by accused

- prejudice to accused

- reasonableness of privacy and when the state can intrude

- Standing (person not object)

- Abandonment (no privacy_

- exigent circumstances (otherwise need warrant)

- reasonableness of police conduct

- waiver/consent (can voluntarily give up rights, but otherwise warrant needed and/or police must argue reasonableness in court)

1. accused present at the time of the search

2. accused have possession and/or control over the property searched

3. accused owner of property

4. accused historically used place

5. accused has ability to regulate control of access

6. accused has subjective expectation of property and it is objectively reasonable.

no reasonable expectation of privacy in voluntarily abandoned property

does not imply if person is in custody (tissue in garbage when being held at police station)

-understand the right

-freely and voluntarily give it up with full knowledge

arrest:

- no grounds needed

- scope - offence related, evidence, or weapons

detention

- reasonable suspicion for grounds

- scope - weapons

When lawfully engaged in a search for a specific purpose come across other items of evidentiary value, can seize them

anything on reasonable grounds he believes has been obtained in commission of offence

1. compellabilty

- level of detail

-recency of info

-how the source obtained the info

2. Reliability

- prior performance of source

3. Does the information go to prove a fact in issue by further police investigation

- subjective reasonable and probable grounds

-grounds must be objectively justifiable

- all about grounds, doesn't matter if you end up being wrong. But it DOES matter if you don't have reasonable grounds...wouldn't even matter that your 'hunch' was right anyway.

a. a person whom he finds committing an indictable offence

b. a person on reasonable grounds believes has a committed a crim. offence and is escaping fresh pursuit who have lawful authority to arrest

anyone other than peace officer who arrests without warrant must deliver to a peace officer

in lawful possession of property or person authorized by owner to possess, may arrest a person without a warrant if they find them committing a crim offence on or in relation to that property

-make the arrest at that time

-within reasonable time after the offecne is committed and they believe r.g. its not feesable for the peace officer to make the arrest

breach of peace

-witness breach of peace

-anyone who assists in a breach

- finds committing or, on reasonable grounds, believes is about to join or renew breach

peace officer receives any person given charge has been party to breach from witness to or has reasonable grounds apprehended has breached

without warrant

1. person who's committed indictable offence, or has r.g. to believe such

2. person he finds committing offence

3. person he has r.g. to have a warrant of arrest in any form in the jurisdiction person is found

Can issue warrant if necessary and no other know to compel appearance.

Factors that would justify warrant rather than a summons to appear

- identify accused

-secure and preserve evidence

- prevent continuation of offence

-ensure safety of witness or victim

- ensure accused attendance at court

may release on

- with summons

-can release on promise to appear

-can release on recognize with or without surety or cash deposit

-can release on conditions-undertaking

failure to appear can result on bench warrant and a separate charge of failure to appear

Final option: Judicial interim Release

- hold in custody and bring before judge

1. ensure attendance in court

2. safety of public or victim or witness

3. maintain confidence in administration of justice