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2101 Law > Module 5 : Criminal procedure > Flashcards

Module 5 : Criminal procedure Flashcards

1
Q

Investigation, Prosecution and Defense

Investigation

A
  • responsibility of the police
  • most investigations start with a complaint from a member of the public, but sometimes is proactive (police look for offences)
  • generally, police who decide whether to lay charges… based on reasonable grounds to believe the suspect has committed an offence
  • when laying charges, the wishes of alleged victims are considered but not fully determanitve so its not like America when cops are like ‘wanna press charges’ that doesnt matter its not up to them (tricky w/ domestic assault charges)
  • private prosecutions are rare and are subject to public control (a hearing is held)
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2
Q

Investigation, Prosecution and Defense

Prosecution

A
  • responsibility of the Crown Attorney’s Offices
  • Crowns are quasi-judicial officers whose task is to achieve justice, not obtain convictions (frequently same thing tho)
  • Crowns screen cases & prosecture only cases that are in the public interest and for which there is a reasonable prospect of conviction
  • The crowns MUST disclose their whole case to the accused in advance to the trial (all their evidence)… so the accused can know the case they have to fight and make a decision with this knowledge… this is to prevent wrongful convictions
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3
Q

Investigation, Prosecution and Defense

Defense Council

A
  • usually private lawyers paid by the accused or legal aid
  • more narrow role, directed at protecting interests of the client… they are subject to duties owed the court (like lying) but its not their job to see tha ‘justice is served’
  • ensures that accused has support and the levels playing field between them and the crown
  • They have no duty to disclose defense case to prosecution (mostly)
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4
Q

Trials

A
  • Most trials are held before a judge alone in the Ontario Court of Justice (provincial - never a jury here)
  • more serious charges are before judge alone OR judge & jury in the Superior Court of Justice
  • In a judge alone trial… judge decides the facts
  • in a jury trial… jury decides facts & judge directs them as to the relevant law & legal principles are in the situation
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5
Q

Trial options are determined by the nature of the alleged offence and there are 3 types of offence…

A
  1. Indictable
  2. Summary conviction
  3. Hybrid
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6
Q

Trials

1) Indictable

A
  • more serious offences
  • accused normally has option of judge alone or judge & jury
  • accused sometimes has the right to have a preliminary inquiry…
  • preliminary inquiry is a court process meant to screen out frivolous prosecutions (if prosecution COULD obtain conviction) & gives the accused an opportunity to probe the Crown’s case (cross examination)
  • If a preliminary inquiry is held, the trial occurs in the Superior Court
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7
Q

Trials

2) Summary conviction

A
  • most minor, often nuisance offences
  • relatively light punishments
  • one trial option only… judge alone in the Ontario Court without a preliminary inquiry
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8
Q

Trials

3) Hybrid

A
  • largest category
  • offences for which the prosecution gets to choose whether to proceed by indictment (more costly & time consuming) or by summary conviction (more popular)
  • once prosecution chooses, accused has the necessary trial options of the two
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9
Q

Investigative detention & search

Arbitrary detention

A
  • police often detain ppl when investigating offences (assume control over movement of a person physically or psychologically)
  • this usually happens before they have grounds to arrest the person (they have suspicion)
  • there is little statutory regulation of this but s.9 protects against arbitrary detentions
  • they are allowed to do this for like traffic and impaired driving enforcement for example… but outside of this context there is no general power to detain individuals arbitrarily
  • However… police do have the power to detain for investigative purposes when the detention is not arbitrary, but also not authorized by powers of arrest (not enough evidence to arrest but reason to believe they have commited an offence)
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10
Q

Investigation, Prosecution and Defense

Investigative detention

A
  • Police have the power to detain for investigative purposes when…
  • 1) they have reasonable grounds to detain
  • 2) the detention is reasonably necessary in the circumstances
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11
Q

Investigative detention

1)They have reasonable grounds to detain

A
  • means a reasonable suspicion in all the circumstances that a person is connected to a particular crime (more than mere suspicion)
  • must be clear nexus between individual to be detained and a recent or on-going criminal offence… can’t be based on a hunch or intuition
  • not a high standard… higher than mere suspicion but lower than reasonable ground to believe
  • risk that racist views will be incorperated into reasonable suspicion
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12
Q

Investigative detention

2) The detention is reasonably necessary in the circumstances (the overall decision to detain is a reasonable one)

A
  • means courts will consider the manner & extent of the detention
  • in theory, the detention must be of brief duration & cannot become a de facto arrest with all its accompanying restraint
  • these limits, in reality, are constantly being tested & often expanded
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13
Q

Investigative attention

Investigative search

A
  • a power of search incidental to investigate detention exists, although searches are not permitted in all circumstances
  • officer must reasonably believe that their safety/the safety of others is at risk
  • search must be confined in scope to intrusion reasonably designed to locate weapons… NOT evidence (like drugs e.g.)
  • search must be carried out in reasonable manner
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14
Q

Search & seizure

A
  • police often search premises, places & ppl during investigations
  • when they find items/info of interest, they seize it for use in prosecution
  • searches & seizures can adversely impact a persons privacy & liberty… so the law exhibits a preference for prior judicial authorization (warrants)… but so many exceptions
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15
Q

search & seizure

Warrants

A
  • warrants are issued by judicial officers based on reasonable grounds to believe that an offence has occured & that evidence of the offence will be found at location sought to be searched
  • reasonable grounds exists ‘where credibly-based probability replaces suspicion’
  • If the inference of specific criminal activity is a reasonable inference form the facts, the warrant can be issued
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16
Q

search & seizure

limit on warrants… reasonable expectation of privacy

A
  • warrant only required where police conduct will invade a person’s reasonable expectation of privacy
  • e.g. ur front yard open to the road is not private and doesnt require a warrant
  • determining when someone has a reasomable expectation of privacy can be very controversial
17
Q

Search & seizure

Warrantless searches

A
  • law authorizes the police to conduct warrantless searches in a number of situations
  • most common & most significant is when a person is searched indicent to their arrest
18
Q

Search & seizure

Search incident (after) to arrest

A
  • No requirement for reasonable grounds to believe evidence will be founds
  • must be a lawful arrest
  • must not be conducted in abusive fashion
  • search must be truly incidental to arrest… police must be attempting to achieve some valid purpose connected to the arrest… like…
  • discovery of item that may be a threat to safety
  • discovery of item that may facilitate escape
  • discovery of evidence of the offence for hwich the accused is being arrest (not another event tho)
  • can search almost anything in these grounds (in the persons immdiete control) but not their home
  • no firm time limit on when search should be conducted but should be short after
  • frisk search permitted but more invasive searches (strip searches) require reasonable grounds that its fully necessary
19
Q

Right to counsel

A
  • Charter section 10(b) gives right, on arrest or detention, to retain & instruct counsel without delay & HAVE to be informed of this right
  • critical right because legal help is impactful in regaining liberty & advising the persons rights & obligations
20
Q

Right to counsel

What must the police do…

A
  1. informational duties
  2. implementational duties
21
Q

Right to counsel

1) informational duties… the police must advice the detainee of 4 things right away after being arrested…

A
  1. that they have right to retain & instruct counsel
  2. without delay, or as soon as reasonably possible
  3. the opportunity to obtain counsel free of change when meeds legal aid criteria
  4. the opportunity and means to access duty counsel (the number to call duty counsel)
22
Q

Right to counsel

2) implementational duties (What must be done to enable detainee to exercise her rights)… 2

A
  1. duty to facilitate… police must facilitate access to councel & provide this opportunity (give them a phone to talk to lawyer & in private)
  2. duty to hold off… police must cease questioning or otherwise attempting to elicit evidence from the detainee until they have had a reasonable opportunity to retin & instruct counsel… once they give u that opportunity they can tho whether u talked to them or not
23
Q

Right to counsel

Reasonable diligence

A
  • Duties to facilitate & hold off are conditional upon detainee exercising their reasonable diligence in availing herself of her rights
  • Detainee must indicate that she wants to contact counsel
  • Detainee must also make reasonable efforts to contact counsel of choice
24
Q

Right to silence…

A
  • detainee has a constitutional right to choose whether or not to speak & cannot have this right used against them in court
  • not an absolute right
  • asserting right to silence doesnt mean the questioning has to stop tho
  • police can use ‘legitimant means of persuation’ to encourage the detainee to speak
  • police are not required to inform a detainee of this right, thats up to cousel
25
Q

Right to silence

Generally, the police are NOT entitled to…

A
  • threaten detainee w/ violence or adverse consequences if they do not confess
  • primise something concrete if they do confess
  • create an atmosphere of oppression
  • deprive detainee of an operating mind
  • play a dirty trick
26
Q

Exclusion of evidence…

A
  • person whose Charter rights are breached can apply to have evidence obtained in connection with the breach excluded from trial
  • accused has to show the rights were breached & that the exclusion from evidence is an appropriate remedy
  • Charter breach will NOT necessarily result in the exclusion of any evidence
  • In considering whether to exclude evidence, the question is whether admission of the evidence could bring the administration of justice into disrepute
  • The goal is to maintain the integrity of, and public confidence in, the justice system in the long term
27
Q

Exclusion of evidence…

the courts consider…

A
  1. the seriousness of the charter-infringing state conduct… Whether admission of the evidence will send a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct
  2. the impact of the breach on the Charter-protected interests of the accused… The interests engaged by the infringed right and the degree to which the violation impacted on those interests
  3. society’s interest in the adjudication of the case on its merits… The negative impact on the repute of the administration of justice of failing to admit the evidence… whether vindication of the specific violation through the exclusion of evidence extracts too great a roll on the truth seeking goal of the criminal trial
28
Q

Exclusion of evidence…

as a general rule, evidence is more likely to be excluded when…

A
  • the police ignore established limitations on their powers
  • they significantly (and unlawfully) interfere with the privacy, dignity, autonomy or liberty of the accused
  • the resulting evidence is of questionable relaibility

2101 Law (8 decks)

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