Midterm

Question 1

Precedent

Answer 1

an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.

Question 2

Stare decisis

Answer 2

Higher courts bind lower courts

the legal principle of determining points in litigation according to precedent

Question 3

Concurring Reasons

Answer 3

one or more judges of a court who agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for his or her decision

Question 4

What is the Charter

Answer 4

highest level of legislature
part of constitution act in 1982
Paramountcy over all other statutes

Question 5

S. 7 of the charter

Answer 5

Life, liberty, security of person

Question 6

S. 8 of the charter

Answer 6

Search and Seizure

Question 7

S. 9 of the charter

Answer 7

Random Stops (Arbitrary detention)

Question 8

S. 10 of the charter

Answer 8

Right to counsel

Question 9

S. 11 of the charter

Answer 9

Procedural rights

requires trial within a reasonable time

Question 10

S. 13 of the charter

Answer 10

Right against self- incrimimation

Question 11

S. 24 of the charter

Answer 11

Remedies section of the charter

Question 12

S. 1 of the charter

Answer 12

Reasonable limits

Question 13

S. 52 of the charter

Answer 13

Makes charter supreme

Question 14

What is jurisdiction

Answer 14

The ability to make people do what you say.
Historically, country’s jurisdiction extended as far as the army could effectively fight.
Leads to concept of sovereignty and borders.

Question 15

4 types of jurisdiction

Answer 15

Prosecutorial
Offence classification
Time
Territory

Question 16

Federal jurisdiction

Answer 16

S.91 constitution act
enacting criminal law and procedure
Establishing & maintaining penitentiaries
Peace, order & good government

Question 17

Provincial jurisdiction

Answer 17

S.92 
Administration of justice
Establishing & maintaining prisons
Property & civil rights
Enforcing provincial laws

Question 18

Prosecutorial Jurisdiction: Provincial Crown

Answer 18

Prosecutes criminal & provincial offences

Question 19

Prosecutorial Jurisdiction: Federal Crown

Answer 19

Prosecutes several federal acts

Question 20

Offence Classification

Answer 20

Effects procedure to follow and rights of the accused.
Effects which court has jurisdiction, pretrial procedure and the right to jury.
Impacts on other area of jurisdiction such as time limits to prosecute, and the length of sentence.

Question 21

Indictable offences

Answer 21

Divided into three sub categories:
- s. 469- Most serious (Exclusive jurisdiction Supreme Court)
- S. 553 - Least serious (Absolute jurisdiction Provincial Court)
Other Indictable (Accused may elect level of trial)

Question 22

Summary Offences

Answer 22

Least serious.
• 6 months max jail sent and $2,000 fine (some exceptions).
• 6 months limitation period (exceptions).
Provincial court has absolute jurisdiction

Question 23

Hybrid offences

Answer 23

Crown has an election re indictable or summary
This election dictates procedure:
•	Time limits
•	Accused elections
•	Sentence range

Question 24

Time limitations for summary and indictable

Answer 24

Summary - 6 month limit

Indictable - No time limit

Question 25

Arrest

Answer 25

No grounds needed to search Scope: offense related, evidence, or weapons Purpose: Compel attendance of accused in court. Protect people. Prevent continuation of offence.

Question 26

Detention (Grounds & Scope)

Answer 26

Grounds: reasonable suspicion Scope:weapons

Question 27

Powers to Arrest (Anyone)

Answer 27

S. 30 Code Breach of peace Anyone who witnesses a breach of the peace May detain anyone who: commits the breach, is about to join, is about to renew Must give person over to peace officer Can use reasonable force proportionate to danger Breach must be serious disturbance that, if not stopped, will likely escalate into an assault or serious property damage.

Question 28

Search on Detention

Answer 28

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.

Question 29

Power to Detain

Answer 29

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.

Question 30

Bail Hearing

Answer 30

Grounds to Detain s. 515(10) Primary: Ensure attendance in court Secondary: Safety of public or victim or witness Tertiary: Maintain confidence in administration of justice

Question 31

Sources of Evidence Law

Answer 31

1. The common law 2. Statute 3. The Charter 4. Evidence scholarship 5. Ethical rules

Question 32

General Principal of Admissability

Answer 32

* Relevance * Probative Value * Prejudicial Effect * Fairness

Question 33

Define Evidence and what 3 forms can it take?

Answer 33

``` Defined as: that which tends to prove a fact in issue or something that may satisfy the enquirer of the fact’s existence Can take three forms 1) Oral evidence 2) Documentary evidence 3) Physical evidence ```

Question 34

Purpose of Laws of Evidence

Answer 34

The role of the judge is to ensure only admissible evidence is introduced This is based on the origins of the jury system. Question: what is the purpose of the trial 1) search for truth 2) to ensure a fair and just process of adjudicating guilt

Question 35

Probative Value

Answer 35

Power to exclude evidence on the basis that it’s probative value is outweighed by the prejudice which may flow from it. The scope of the discretion depends on context. The test is narrower with crown evidence. Prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence

Question 36

Prejudicial Effect and fairness

Answer 36

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 Eg. promiscuity in sexual assault victims

Question 37

Exclusionary Rules

Answer 37

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.

Question 38

Hearsay Rule

Answer 38

A declaration made out of court without the solemnity or process associated with that environment is prima facia inadmissible. It must be: Made out of court, Used to prove truth of what is being asserted

Question 39

Examples of Necessity

Answer 39

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

Question 40

Powers to Arrest (Without a warrant)

Answer 40

S. 494(1) 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 courts have said that when lay person arrests under this section, the Charter applies as if a government agent was doing it - so , s. 8 (Search and Seizure) applies However, they are not actually agents of state so no duty to provide s. 10 (right to counsel)

Question 41

Powers to Arrest (property owners)

Answer 41

S. 494(2) Owner of property or authorized agent May arrest without warrant person finds committing criminal offence on or in relation to property he or she owns Broader than general arrest provision Must deliver arrested person to peace officer forthwith

Question 42

Powers to Arrest (peace officer)

Answer 42

S. 31 - breach of peace No offence needed Officer must witness May arrest: finds committing breach, believes on rpg will join or renew breach So either breach must already be underway or have happened

Question 43

Rational for Hearsay Rule

Answer 43

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.

Question 44

Powers to Arrest (Without a warrant)

Answer 44

S. 494(1) 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 courts have said that when lay person arrests under this section, the Charter applies as if a government agent was doing it - so , s. 8 (Search and Seizure) applies However, they are not actually agents of state so no duty to provide s. 10 (right to counsel)

Question 45

Powers to Arrest (property owners)

Answer 45

S. 494(2) Owner of property or authorized agent May arrest without warrant person finds committing criminal offence on or in relation to property he or she owns Broader than general arrest provision Must deliver arrested person to peace officer forthwith

Question 46

Powers to Arrest (peace officer)

Answer 46

S. 31 - breach of peace No offence needed Officer must witness May arrest: finds committing breach, believes on rpg will join or renew breach So either breach must already be underway or have happened

Question 47

What is test for Probative Value

Answer 47

Does it go to prove issue in question What is the strength of the inference to be drawn How reliable is the evidence

Question 48

Rational for Hearsay Rule

Answer 48

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.