Federal Law Flashcards
(74 cards)
1
Q
Types of law
A
- Common Law (search incident to arrest)
- Statute Law (enacted by government, CC, HTA)
- Case Law (based on previous court decision (R v. Feeney)
2
Q
Categories of Law
A
Procedural Law - Instruction manual for police - how law is enforced and administered
Substantive Law - Manual for citizens: rights and duties of each person
3
Q
Types of Courts
A
- Superior Court of Justice - Criminal Jurisdiction
- Ontario Court of Justice
- Provincial Offences Court
4
Q
Classification of Offences
A
- Summary Conviction (less serious)
- Hybrid / Dual Procedure (Crown will elect to be treated as summary or indictable)
- Indictable (more serious offence. Federal Jail)
5
Q
What does TIPP stand for?
A
Time / date of offence
Identity of accused
Place/Location of offence
Plus Elements
6
Q
Elements for Criminal Offence (Need both to prove offence)
A
- Mens Rea (intent, guilty mind)
- Actus Reus (guilty act)
7
Q
What commences a charge?
A
An information (form 2) legal document that is sworn before justice and commences charges
8
Q
Undertaking
A
Method of release after arrest with conditions`
9
Q
Subpoena
A
Directs person, usually witness to give evidence bring anything in relation to the matter in court
10
Q
Finds committing
A
Seeing the person actually commit the offence (caught in the act)
11
Q
Reasonable Grounds
A
A set of facts or circumstances. Which would satisfy an ordinary, cautious and prudent person that there is reason to believe and goes beyond mere suspicion
12
Q
Arrest
A
An arrest is accomplished when you take or get physical control of a person with intent to detain
13
Q
Accused
A
Includes a person to whom a peace officer has issued an appearance notice and a person arrested for criminal offence (S. 493)
14
Q
Charge
A
Laid when an information is sworn before a justice and prosecution is initiated.
15
Q
Arrest vs charge
A
A police officer may arrest a person for committing a criminal offence but not charge and vice versa, may charge a person for committing a criminal offence where that person has not been arrested
16
Q
Investigative Detention
A
The brief detention of an individual by a police officer for investigative purposes
17
Q
Appearance Notice
A
Method of release after arrest without conditions
18
Q
Warrant
A
Legal document issued by court which commands a Peace officer to arrest a person and bring them to court
19
Q
Executed
A
completed, carried to full affect (brought to court)
20
Q
Lawful Authority
A
Authorized Law; acting good faith
21
Q
Justified
A
Protected from criminal civil liability
22
Q
Execution of duty
A
Lawfully performing an identifiable and specific or special duty authorized by common law
23
Q
Detention
A
Restraint of liberty other than arrest
24
Q
What does RCA stand for?
when attending an incident
A
Recognize the offence
Classify the Offence
Authorities
25
What does PIC stand for
| why you should arrest
Prevent continuation of offence
Investigate
Court - ensure they attend
26
553 CC Offences
S.202: betting, pool selling, book making
S.203: placing bets
Paragraph 4(4) simple possession of schedule II
27
s. 494 (1) C.C
CITIZENS POWERS OF ARREST
Arrest without warrant
(a) a person whom he FINDS COMMITTING an INDICTABLE OFFENCE;
(b) a person who, on REASONABLE GROUNDS, who believes
(i) has committed a CRIMINAL OFFENCE; AND
(ii) is escaping and freshly pursued by persons who have lawful authority to arrest that person
28
S 494(2) C.C
Citizens Powers Of Arrest
The owner OR a person in lawful possession of property, OR a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they FIND them COMMITTING a CRIMINAL OFFENCE on or in relation to that property; AND
(a) they make the arrest at that time; OR
(b) they make the arrest within a reasonable time after the offence is committed and they believe on REASONABLE GROUNDS that it is not feasible in the circumstance for a peace officer to make the arrest
29
S494(3) - Citizens Powers of Arrest
Any one other than a peace officer who arrest a person without warrant SHALL FORTHWITH deliver the person to a peace officer
30
495(1) Powers of arrest - Peace Officer
A peace officer may arrest without warrant:
(Committed, finds committing, and reasonable grounds of committal / warrant of arrest)
(a) a person who has committed (present) an INDICTABLE OFFENCE OR who, on REASONABLE GROUNDS, he believes has committed (past) OR is about to commit (future)an INDICTABLE OFFENCE;
(b) a person whom he FINDS COMMITTING a CRIMINAL OFFENCE; OR
(c) a person in respect of whom he believes has REASONABLE GROUNDS to believe that a WARRANT OF ARREST OR COMMITTAL, in any form set out in Part XXVIII in relation thereto, IS IN FORCE within the TERRITORIAL JURISDICTION in which the person is found
31
495.1 / Application of Section 524
ARREST OF ACCUSED ON INTERIM RELEASE
A peace officer who believes on REASONABLE GROUNDS that an accused:
```
has contravened or is about to contravene any
Summons
Appearance Notice
Undertaking or;
Release Order
…….OR
```
(b) has committed an INDICTABLE OFFENCE after any summons, appearance notice, undertaking or release order was issued or given to him or entered into by him, may arrest the accused without a warrant
32
31 C.C –ARREST FOR BREACH OF PEACE
ARREST FOR BREACH OF PEACE
(FINDS COMMITTING) Police officer
Witnesses breach of the peace OR
REASONABLE GROUNDS a person is about to join in or renew
breach of peace
• Whenever harm is actually or likely to be done to a person or his/her property, or a person is in fear of being harmed through an assault, affray, or riot
• Think of health, safety, people, property
• Only procedural, no charge
33
6 STEPS TO PROPER ARREST
1. Identify yourself as a police officer
2. Tell the person he is under arrest (judge’s rule)
3. Tell the person the reason for the arrest (s. 10(a) Charter and s.29(2) C.C.)
4. Take physical control
5. Inform him of his Rights to Counsel (s.10(b) of Charter)
6. Ensure he understands the reason for the arrest and his Right to Counsel Then;
Read the Caution (voluntariness)
Read Secondary Caution if applicable (minor inducements)
*** Cautions are NOT a part of 6 steps, “Judge’s Rule”
34
PROSPER WARNING
* Ensures the detainee wanting to waive the right to counsel UNDERSTANDS what they are actually giving up. (need not arbitrarily give up their RTC because they become frustrated, cannot afford a lawyer or cannot locate the lawyer of their choice)
* The accused party needs to know they do have reasonable opportunity to speak to any lawyer of their choice.
35
Explain the arrest process
(RCA, step 1) > (S. 495 (2) (Arrest authorities) > (PRICE)
- If PRICE is met = no arrest authority
- If PRICE is not met = Reason to arrest (PIC) > Proper arrest (6 steps to arrest) > Establish PRICE > Form 9 (Appearance Notice) or Form 6 (Summons)
36
Explain (PRICE)
```
Protect Public (4 Ps)
Repetition
Identify
Court
Evidence
```
37
The 4 P's
Protect witness and accused
Protect Public
Protect Property
Prevent Breach of Peace
38
s. 495 (2) C.C – LIMITATION
A peace officer SHALL NOT arrest a person without warrant for:
(a) 553 indictables (202, 203, 4(4)(a)
(b) Dual procedure offences
(c) Summary conviction
In cases where,
(d) On REASONABLE GROUNDS that PRICE is satisfied
*arrest for straight indictables
39
s. 496 C.C
Appearance Notice for Judicial Referral Hearing
- Failed to comply with Summons, Appearance Notice, Undertaking, Release Order or
- Failed to attend court as required
- Did not cause a victim physical/emotional harm/property damage/economic loss
- May without laying a charge
- Issue an appearance notice for a judicial referral hearing under s.523.1C.C.
40
DUTIES UPON ARREST:
s. 29 (2) C.C – NOTICE UPON ARREST
The duty of everyone who arrests a person, with or without warrant, to give notice when;
the process or warrant under the arrest is made; or
the reason for the arrest
s. 10 C.A (Charter)
Everyone has right on arrest or detention;
to be informed why they were arrested
their right to retain and instruct counsel without delay
to have the validity of detention determined by way of habeas corpus (body before the court) and be released if detention not lawful (bail hearing)
41
S. 25 C.C
PROTECTION OF PERSONS ACTING IN AUTHORITY
Everyone required or authorized by law
To do anything in the administration or enforcement of law
If acted on reasonable grounds is justified in using as much force as necessary for that purpose
s. 25(2) – relating to persons acting in good faith, executing a process or carrying out a sentence notwithstanding if it is defective or issued without jurisdiction
s. 25(3) – relating to not being justified using force that causes grievous bodily harm (GBH) or death UNLESS on reasonable grounds is necessary to protect self or others from suchd xcf
s. 25(4) – relating to peace officer and anyone assisting may use force intended to cause death or GBH to person being arrested if necessary to protect anyone from imminent or future death or GBH and flight cannot be prevented by less violent manner
s. 25(5) – Peace officer, same as above in relation to persons who escapes a penitentiary and poses a threat of death or GBH
42
s. 26 C.C
EXCESSIVE FORCE
Everyone authorized by law to use force is criminally responsible for any excess
thereof
43
s. 27 C.C
– USE OF FORCE TO PREVENT COMMISSION OF OFFENCE
Everyone is justified is using as much force as reasonably necessary to prevent the commission of an offence,
If committed, might be arrested without warrant AND
Likely to cause immediate and serious injury to person or property of anyone
44
s. 34(1) C.C
DEFENCE – USE OR THREAT OF FORCE
Person not guilty if:
On reasonable grounds that force or threat of force is used against
them or other person
For the purpose of defending or protecting themselves or other
Act is reasonable in the circumstance
45
s. 34(3)
DEFENCE – USE OR THREAT OF FORCE
does not apply if the person who commits the act believes on RG that person (arresting/using force to defend) is acting unlawfully (i.e. false arrest)
46
What does Section 1 of the Charter describe?
s. 1 CA – guarantees the rights and freedom set out only to such reasonable limits prescribed by law
47
What does Section 11 of the Charter describe?
s. 11 CA – person charged with an offence has the right;
To be informed without unreasonable delay of the specific offence
Be tried within a reasonable time
Not to be compelled to be a witness in proceedings against that person in respect to the offence
Presumed innocent until proven guilty Not be denied reasonable bail
48
What does section 7 of the Charter describe?
s. 7 CA – right to life, liberty and security and not to be deprived of
49
What does Section 8 of the Charter describe?
s. 8 CA – secured against unreasonable search and seizure
50
What does section 9 of the Charter describe?
s. 9 CA – right not to be arbitrarily detained or imprisoned
51
What does section 10 of the charter describe?
s. 10 CA – right on arrest or detention;
(a) Informed promptly of the reason
(b) Retain and instruct counsel without delay and be informed of that right AND
(c) Have the validity of the detention determined by way of habeas corpus
and be released if detention is not lawful
52
What does section 24(1) of the charter describe?
s. 24 (1) CA – anyone may apply to court of competent jurisdiction if rights have been infringed or denied
53
What acronym is used for release?
```
P.R.I.C.E.S.
Release section 498 (1.1)C.C. shall not release if PRICES not met
Public Interest
Repetition or continuance P.R.I.C.E.S.
Identity
Court
Evidence
Safety and Security of Victim/Witness
```
54
C.C.498(1)
Release from custody-arrest without warrant C.C.498(1)
Subject to subsection (1.1) if a person has been arrested without warrant for an offence, other than one listed in section 496, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if
a) The peace officer intends to compel the person’s appearance by way of summons;
b) The peace officer issues an appearance notice to the person; or
c) The person gives an undertaking to the peace officer
55
What are additional conditions for undertakings, what is the max amount able to pay?
Undertaking s501(3)(i) additional conditions
Promise to pay an amount specified in undertaking-not more than $500- if they fail to comply- with any condition of the undertaking
-Deposit with peace officer specified in undertaking
-Money/valuable security
-Value not to exceed $500
-If at time of undertaking- accused not ordinarily a resident in the Province
OR
-Does not ordinarily reside within 200km of the place in which they are in custody
**there are more listed on the undertaking available**
56
Define what a bail hearing is?
Bail Hearing: When accused is not released, then accused is taken before a Justice to determine suitability for release
57
What is a Judicial Referral Hearing, what section is it found under, and when is it not available?
Judicial Referral Hearing S.523.1 C.C. / and Section 496
Appearance notice prior Judicial Referral Hearing
- Reasonable grounds
- Failed to comply with Summons, Appearance Notice, Undertaking, Release order OR
- Failed to attend court as required
- Did not cause victim any harm
- THIS IS NOT AVAILABLE FOR BREACHES OF PROBATION
58
What section deals with Show Cause, Reverse Onus, and Justification for Detention. Define each of these.
s. 515 C.C
Show Cause (5)
The Crown Prosecutor must show why the accused should be held in custody on primary, secondary or tertiary grounds
```
Reverse Onus (6)
The accused must show why he should be released
```
Justification for detention (10)
Primary grounds – to ensure attendance in court
Secondary grounds – protection/ safety of victim and witnesses, likelihood accused will commit a criminal offence if released or interfere with administration of justice
Tertiary grounds - maintain confidence in administration of justice, including:
Strength of prosecutors case Gravity of offence
Circumstances surrounding the offence, including if firearm is used Accused has potential to a lengthily term of imprisonment
59
What section refers to Judicial Referral Hearing?
s. 496 C.C Appearance Notice for Judicial Referral Hearing
- Reasonable Grounds
- Failed to comply with Summons, Appearance Notice, Undertaking, Release Order or
- Failed to attend court as required
- Did not cause a victim physical/emotional harm/property damage/economic loss
- May without laying a charge
- Issue an appearance notice for a judicial referral hearing under s.523.1C.C.
60
What does S. 496 refer to?
s. 496 C.C Appearance Notice for Judicial Referral Hearing
- Reasonable Grounds
- Failed to comply with Summons, Appearance Notice, Undertaking, Release Order or
- Failed to attend court as required
- Did not cause a victim physical/emotional harm/property damage/economic loss
- May without laying a charge
- Issue an appearance notice for a judicial referral hearing under s.523.1C.C.
61
What is the definition of acting in good faith?
ACTING IN GOOD FAITH
| With an honest intention and free from any knowledge of irregularity
62
What section deals with Trespass at night?
What type of criminal offence is it?
Do you need to find committing?
Between what times is it considered night?
s. 177 C.C – TRESPASS AT NIGHT (Summary Conviction – Finds Committing)
***REVERSE ONUS***
o Without lawful excuse
o Loiters or prowls
o At night on the property of another
o Near a dwelling house
Is guilty of an summary conviction offence
Loiter – hanging around without purpose
Prowls – sneaking around
Night – 9pm-6am
Near dwelling house – must be in reasonable distance
Dwelling house – any building used as a permanent or temporary residence and includes:
▪ A building within the curtilage of a dwelling-house connected by doorway or enclosed/covered passage-way and
▪ Unit designed to be mobile and used as a permanent or temporary residence
63
What section deals with Mischief?
What type of criminal offence is it?
Define mischief
s. 430(1) C.C – MISCHIEF (Under offence (553) – Dual Procedure) Willfully,
Destroys or damages property
Renders property dangerous, useless, inoperative or ineffective Obstructs, interrupts or interferes with the lawful use or enjoyment
of property; OR
Obstructs, interrupts or interferes with any person in the lawful use or enjoyment or operation of property
Disturbance: an act causing annoyance or disquiet interrupting the peace. Mere annoyance does not count, must interfere with the ordinary use of the premises.
64
What section deals with Cause Disturbance
What type of criminal offence is it?
Describe what cause disturbance is
s. 175(1) C.C – CAUSE DISTURBANCE (Summary Conviction)
(a) Every one who NOT BEING in a dwelling house causes a disturbance in or near a public place by;
(i) fighting, screaming, shouting, swearing, singing, using insulting or obscene language
(ii) by being drunk
(iii) by impeding or molesting
(b) Openly eposes or exhibits an indecent exhibition in a public place
(c) Loiters in a public place and in anyway obstructs persons who are in that place, or
(d) Disturbs occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs as such…. in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied
* Evidence of a peace officer relating to the conduct of person, whether ascertained or not a disturbance or an obstruction was caused or occurred, can be used by the court to substantiate (s. 175(2) C.C)
65
What does section 162 describe?
Voyeurism
s.162 C.C.
Every one commits an offence who,
Surreptitiously observes-including by mechanical or electronic means
OR
Makes a visual recording of a person
Who is in circumstances that give rise to a reasonable expectation of privacy, if
- person is in place where reasonably expected to be nude, to expose genitals/anal region/her breasts/to be engaged in explicit sexual activity
- person is nude, exposing genitals/anal region/her breasts/engaged in observing/recording person in state or activity OR
- observation/recording done for a sexual purpose
66
Every one commits an offence who,
Surreptitiously observes-including by mechanical or electronic means
OR
Makes a visual recording of a person
Who is in circumstances that give rise to a reasonable expectation of privacy, if -person is in place where reasonably expected to be nude, to expose genitals/anal region/her breasts/to be engaged in explicit sexual activity
Voyeurism
67
Describe voyeurism
-person is in place where reasonably expected to be nude, to expose genitals/anal region/her breasts/to be engaged in explicit sexual activity
68
What section is Assault under,
| describe it
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
69
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Assault S.265(1)
70
What does section 267 describe
s. 267 C.C – ASSAULT CAUSE BODILY HARM/WITH A WEAPON (Level 2)(dual procedure)
Carries and uses or threatens to use weapon or imitation OR
Causes bodily harm to the complainant OR
Chokes, suffocates or strangles the complainant
***Bodily Harm: more than trifling or merely transient (s. 2)
71
Section 267 - Assault cause bodily harm/a weapon
| What type of criminal offence is it?
s. 267 C.C – ASSAULT CAUSE BODILY HARM/WITH A WEAPON (Level 2)(dual procedure)
Carries and uses or threatens to use weapon or imitation OR
Causes bodily harm to the complainant OR
Chokes, suffocates or strangles the complainant
***Bodily Harm: more than trifling or merely transient (s. 2)
72
Section 268 - Aggravated assault
| What type of criminal offence is it
s. 268 C.C – AGGRAVATED ASSAULT (Level 3) *Straight Indictable*
Wounds, maims, disfigures or endangers life
***Maims: loss of ability to fight back
***Wounds: stab
73
Wounds, maims, disfigures or endangers life
* **Maims: loss of ability to fight back
* **Wounds: stab
s. 268 C.C – AGGRAVATED ASSAULT (Level 3) *Straight Indictable*
Wounds, maims, disfigures or endangers life
***Maims: loss of ability to fight back
***Wounds: stab
74
s. 270(1) C.C ASSAULT PEACE OFFICER
s. 270(1) C.C ASSAULT PEACE OFFICER
Assault a public officer or peace officer engaged in the execution of his duty or a person in aid of officer
Assaults person with intent to resist or prevent the lawful arrest
or detention of himself or other
Assaults person,
Engaged in lawful execution of process against land or goods or making lawful distress of seizure; or
With intent to rescue anything taken under lawful process, distress or seizure
Execution of duty: lawfully performing an identifiable and specific duty, authorized by law
