principles and jurisdiction ch 1

Question 1

What helps take the technical layers of crim investigation

Answer 1

rights of due process the charter, rule of law

Question 2

substantive law

Answer 2

Criminal code, defenitions what the law is ought to be

Question 3

procedural law

Answer 3

criminal procedure is how laws are enforced, courts and gathering evidence

Question 4

division of powers

Answer 4

Constitution Act, 1867
Federal: 91(27) criminal law and procedure,
91(28) Penitentiaries
Peace.Order.Good.Government.
Provincial: 92(6) jails
92(13) property and civil rights
92(14) administration of justice
92(15) penalties for provincial laws

Question 5

Who gets to prosecute

Answer 5

Criminal Code, s. 2
Attorney General = provincial AG (in provinces)
federal AG
Not in territories, issues with equality

Question 6

Time Limitations, Summary Conviction

Answer 6

Criminal Code Part 27
Summary Convictions
786. (1) Except where otherwise provided by
law, this Part applies to proceedings as
defined in this Part.
(2) No proceedings shall be instituted more
than 12 months after the time when the
subject-matter of the proceedings arose,
unless the prosecutor and the defendant
so agree.

Question 7

Charter Jurisdiction

Answer 7

The various rights and freedoms set out in the
Charter operate to restrict the actions of
government – both as it acts through legislation,
and as it acts through its agents (see s. 32 of the
Charter).

Question 8

Unconstitutional conduct and law

Answer 8

Unconstitutional conduct is remediable through
s. 24 of the Charter, while unconstitutional law is
addressed in s. 1 of the Charter and s. 52 of the
Constitution Act, 1982.

Question 9

Crim procedure and evidence protects people by

Answer 9

Courts strike down any laws that violate
Charter rights

Question 10

How do courts use section 1 when deciding
whether to render laws or parts of laws void?

Answer 10

Oaks Test, the objective and proportionality of the law

Question 10

R. v. Oaks (1986) (SCC)

Answer 10

(1) Sufficiently Important Objective
(2) Rational Connection
(3) Least Drastic Means
(4) Proportionate Effect

Question 11

Oaks Test. 1) Pressing and Substantial Objective

Answer 11

is the purpose or the law pressing and substantial enough to justify violating

Question 12

Oaks Test. 2) Proportionality

Answer 12

1) is it rational, the measures carefully drafted to achieve the laws objective?
2) is the charter using least drastic measures ?
3) are the deleterious or negative consequences outwigh the importance of achieving the law’s objective?
If all yes than infringement is justified

Question 13

Charter Jurisdiction:

Answer 13

R. v. Mills (1986)(SCC)
All criminal trial courts are courts of competent jurisdiction.
Charter issues are not to be raised at preliminary inquiries.
Parties should avoid pre-trial motions.
Superior courts have concurrent jurisdiction on Charter
matters, although parties are discouraged from
using it.
Normally, trial courts should be left to deal with all Charter
issues.
Generally, victims do not have standing at trial, and are
not entitled to have their own lawyer except for
records cases – R. v. O’Connor (1995)(SCC)

Question 14

The Adversarial System; The
truth will emerge when each side is provided the
opportunity to

Answer 14

submit evidence in support of their claims,
and
challenge the evidence offered by the other
party
Procedural protections can complicate police
investigations into the truth and/or the
Crown’s ability to use evidence of guilt

Question 15

What is the conflict between factual guilt
and legal guilt? Explain with reference to
Haevischer

Answer 15

Even if Haevischer is factually guilty, should he be legally found guilty when his Charter rights were violated so severely?
Legal system prioritizes due process and fairness, even if it means factually guilty individuals might get a new tria

Question 16

Factual Guilt

Answer 16

Actually guilty or not

Question 17

Legal Guilt

Answer 17

proved legally guilty and serve punishment

Question 18

Why are there tensions between the crime
control model of justice and the due process
model?

Answer 18

how to ensure safety and justice without sacrificing fairness and freedom. competing values is the issue, but the state’s wants to ensure crime control so the outweigh of due process rights is justified.

Question 19

R v Haevischer

Answer 19

Cody Haevischer and Matthew Johnston were convicted of six murders in the 2007 “Surrey Six” killings.

Both were factually involved in the killings — the evidence (including confessions, surveillance, and witness statements) indicated their direct participation.

2021, the British Columbia Court of Appeal ordered a new trial for both men, based on serious Charter violations during the investigation.

These included police misconduct, abuse of process, and treatment

Question 20

crime control model

Answer 20

enforce laws that increase safety by punishment

Question 21

due process model

Answer 21

procedual rights for citizens, including the accused and state

Question 22

R v Coffin

Answer 22

coffin was legaly guilty but not factually. the debate of due process vs. crime crontrol, quick to punish but not handing him fairness for wrongful accuse

Question 23

Role of police:

Answer 23

investigating crime and enforcing the law

Question 24

Role of Crown:

Answer 24

to see that the law is enforced, “exclude[ing] any notion of winning or losing” (Boucher v The Queen, 1955)

Question 25

Role of judge and jury:

Answer 25

impartial triers of fact

Question 26

Role of victim:

Answer 26

may file victim impact statement

Question 27

Other parties:

Answer 27

: non-parties, intervenors, amicus curiae (friend of the court)

Question 28

amicus curiae

Answer 28

to help the court by giving persepctive that the judge considers necessaru to decide the issues in dispute R v Kahsai 2023 para 37

Question 29

Summary conviction offences

Answer 29

–Least serious offences (e.g., trespassing) –Maximum penalty: 2 years less a day imprisonment or maximum fine of $5,000, or both

Question 29

Criminal Court System

Answer 29

Provincial and territorial courts – First court appearance for most people – pre-trial hearings Superior courts (different names for different provinces and territories) – First court of appeal for territorial and provincial courts

Question 30

Indictable offences

Answer 30

*Some have mandatory minimum sentences *Unless otherwise stated, maximum penalty of 5 years’ imprisonment *Section 469 and section 553 offences

Question 31

Hybrid offences

Answer 31

– Can be prosecuted either as summary conviction offences or as indictable offences – Many factors involved in Crown’s decision how to proceed (e.g., seriousness, degree of harm done, involvement in criminal organization, public interest in trial by jury, etc.)

Question 32

S. 469

Answer 32

Murder(235), conspiracy (465), treason (47), privacy (74) etc. "reverse onus". no other court can hear other than superior court, and accused has no election

Question 33

S. 553

Answer 33

Theft, fraud less serious indictable offences of absolute jurisdiction for prov/terr courts.

Question 34

S. 536(2)

Answer 34

Indictabl offence with 14 years, can elect with or without provincial court and jury and no preliminary inquiry. of mode of trial. you can elect to be tried before the court

Question 35

S. 468

Answer 35

Superior Courts have jurisdiction to try any indictable offence

Question 36

S. 213

Answer 36

Everyone is guilty of an offence punishable on summary conviction who in a public place or in any place open to public view, for the purpose of offering, providing or obtaining sexual services for consideration

Question 37

S. 333.1

Answer 37

Everyone who commits theft is, if the property stolen is a motor vehicle, guilt of an offence and liable …(a) on proceedings by way of indictment, to a term of not more than ten years, and to a minimum punishment of imprisonment for a term of six months…; or (b) on summary conviction, to imprisonment for a term of not more than two years less a day

Question 38

Interpretation Act S. 34

Answer 38

s. 34. (1) Where an enactment creates an offence, (a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment…

Question 39

S. 235

Answer 39

First or second degree murder, indictable offence. Life imprisonment

Question 40

time limitations S. 786

Answer 40

(1) Except where otherwise provided by law, this Part applies to proceedings as defined in this Part. (2) No proceedings shall be instituted more than 12 months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree

Question 41

Territorial Jurisdiction

Answer 41

only crimes committed in Canada is tried to restrict jurisdiction, but high indictible cases are included

Question 42

S. 250, abudction

Answer 42

(1) Every one who, with intent to deprive a parent who has lawful care or charge of a child under the age of fourteen years of the possession of that child, or with intent to steal anything on or about the person of such a child, unlawfully (a) takes or entices away or detains the child, or (b) receives or harbours the child, is guilty of an indictable offence and is liable to imprisonment for ten years.

Question 43

Re Bigelow and R. (1982)(Ont.C.A.)

Answer 43

Has “any element” of the offence been committed in the jurisdiction? 3 aspects of jurisdiction: 1. continuity 2. acts in furtherance 3. effects Jurisdiction is granted on the basis of all three aspects being present, although any one would have sufficed.

Question 44

R. v. Greco (1999) (Ont.C.J.)

Answer 44

The accused was charged in Ontario with breaching a condition of an Ontario probation order that he “keep the peace and be of good behaviour.” The breach was alleged to have been an assault of his girlfriend in Cuba. Both parties were Canadian citizens. Did it lack jurisdiction? The defence's motion to challenge jurisdiction was unsuccessful, and the court proceeded to hear the case.

Question 45

Time Limits

Answer 45

– Indictable Offences Treason: 3 years (s. 48(1)) Indictable offences in some other statutes – Summary Conviction Offences 12 months (s. 786(2)) Trial in a Reasonable Time – Charter s. 11(b) “Any person charged with an offence has the right… to be tried within a reasonable time”

Question 46

R v Askov (1990)(SCC)

Answer 46

Rationale for speedy trials: – Minimize pre-trial oppression – Advance community interest – Practical benefits -Witness memory fade -Minimize victim anxiety Factors to take into account - Length of delay -Explanation for the delay -Waiver -Prejudice to the accused Focus on “explanation” -Institutional delay – limits on resources This approach was clarified in R v Morin (1992)(SCC): some delay is inevitable

Question 47

R v Jordan, 2016 SCC 27

Answer 47

New Framework: – Presumptive ceiling covering the period from charge to the anticipated end of trial Provincial Court: 18 months Superior Court: 30 months – Delay attributable to or waived by defence does not count towards the ceiling Once established, Crown has burden of showing exceptional circumstances Exceptional Circumstances: – Outside Crown’s control – Reasonably unforeseen or reasonably unavoidable – Cannot reasonably be remedied – Two Categories: Discrete events (illness, etc)(subtract time attributable to this from the ceiling) Particularly complex cases (delay is reasonable) Absent an exceptional circumstance, delay exceeding the delay is unreasonable Below the presumptive ceiling the burden is on the defence to show the delay is unreasonable. To do this: – Show defence took meaningful steps demonstrating a sustained effort to expedite, and – Show case took markedly longer than it should have Stays beneath presumptive ceiling only in clear cases

Question 48

R v Cody (2017)(SCC)

Answer 48

Defence delay – two components – (1) delay waived by the defence – (2) delay caused by the defence Re (2), relevant considerations include the number, strength, importance and timeliness of applications that produce delay Inaction, as well as delay-causing action will be relevant considerations Focus is on “illegitimate defence conduct” Is there anything disconcerting about the court’s approach here?

Question 49

R v Kalanj (1989)(SCC)

Answer 49

Pre-charge delay is not relevant under a s. 11 (b) analysis Other Charter (s. 7) and Code (ss. 650(3) & 802 (1)) provisions apply to protect the accused from excessive pre-charge delay Need to be able to argue that the delay has resulted in it no longer being possible to have a fair trial

Question 50

R v Potvin (1993)(SCC)

Answer 50

Appellate delay s. 11(b) does not apply s. 7 will be available in rare cases where the delay amounts to an abuse of process