Test 2 Flashcards
(141 cards)
1
Q
What did the Canadian charter or rights and freedoms have a significant impact on (specific to this unit lolz)
A
Defining police powers
2
Q
How did the Charter affect Police powers (generally)?
A
Provide legal safeguards against unlimited power of police, codifies certain powers as acceptable.
3
Q
Which section limits all charter rights?
A
Section 1 (There are exceptions to charter rights if deemed legally necessary)
4
Q
Which is the most debated section of the Charter?
A
Section 8, and Section 9 slightly less so
5
Q
What is section 7? (The definition of the section)
A
“Everyone has the right to life, liberty and security of the person and the right to not be deprived thereof except in accordance with the principles of fundamental justice”
6
Q
What applicable right is granted by section 7?
A
The right to silence, even when subpoenaed or asked by police to speak.
7
Q
What duty do the police have in relation to the right to silence?
A
Must notify you of your right to remain silent when arrested, and the fact that anything you say can be used against you.
8
Q
What is the one thing you can say that does not constitute a waiver of your right?
A
“I assert my section 7 right to silence.”
9
Q
What case established the use of “I assert my….” statement as the only speaking that does not constitute a waiver? Give a summary of the case.
A
R. v. Singh. Singh was arrested and originally attested that he was asserting his right to silence. But then he did give away some details. He tried to say that they weren’t honouring his right to silence, but they were like you waived it when you started sharing details hunny.
10
Q
Why should you never waive your right to silence?
A
You can lie without knowing you’re lying (mishear information, fill in blanks, forget details, misremember), police are allowed to lie and try to trick you….
11
Q
What happens if you’re intoxicated when they tell you about your right to silence?
A
It still counts as long as you are voluntarily speaking and not like blackout.
12
Q
How do questioning rules vary for minors?
A
They can have a parent present.
13
Q
How does the right to silence apply to the motor highway act?
A
If you are pulled over you can be compelled to give your license and registration, you have no requirement to speak outside of that but they might get annoyed or suspicious and escalate the stop so it’s advisable to cooperate.
14
Q
If a suspect repeatedly tries to invoke their right to silence, can the police officer still continue interrogation?
A
Yes, they can continue interrogating at length despite someone asserting their right to silence.
15
Q
What are the exceptions to the right to silence?
A
You do not have a right to silence in situations where it would obstruct a police officer from carrying out their duties (ex. traffic stop ID and registration).
16
Q
What is section 8?
A
Everyone has the right to be secure against unreasonable search or seizure, aka you have a right to autonomy over your stuff and personal correspondents.
17
Q
What is the general rule for searching?
A
Police officers must have a warrant.
18
Q
What are the exceptions to the search warrant rule?
A
Consent, low reasonable expectation of privacy, search incident to an arrest, plain view and exigent circumstances.
19
Q
How does consent work as an exception to needing a warrant for a search?
A
If the police ask you if they can look (car, house, apartment etc..) and you say yes then they don’t need a warrant.
20
Q
Can children consent to their own searches?
A
Parents consent for them.
21
Q
How is consent and search iffy if you live with roomates?
A
If one person says no and one person says yes. Unless one isn’t on the lease, the no overrides the yes (also unless you’re not home, your door is open and your roommate says yes. This would only a allow a plain view search.
22
Q
What is a reasonable expectation of privay?
A
The level of privacy that is expected by an individual in different places and contexts.
23
Q
What are some contexts and their levels of REP?
A
Locked items are the highest level.
If something is laid out in plain view at home there is moderate expectation. Things discarded in public places are considered the lowest, things discarded outside home is also low.
No REP at border crossings, airports, and low on public transit.
24
Q
How do plain view searches work?
A
If a police officer can see something in they are allowed to search, especially true in public places and vehicles. Includes the use of sniffer dogs bc the scent you emit is not considered hidden.
25
How do exigent circumstances work as an exception for search and seizure?
If a situation is very urgent or severe there will not be time to get a warrant, officers believe they need to search to protect people.
26
What are some circumstances that count as exigent circumstances?
Shootings, bomb threats, kidnapping of minors.
27
Can exigent circumstances justify no-knock warrants?
Must have significant reason to believe one is in immediate danger.
28
What section of the charter covers for unwarranted search in exigent circumstances?
Section 1, the reasonable limit to freedoms bc police may need to violate some freedoms to protect people.
29
What case legitimized the use of FLIR?
Tessling case 2004, thought he was growing weed but didn't have enough evidence. Used magnetic thermal imaging to detect heat.
30
How was FLIR legitimized?
Because the device can be operated off of the private property and only measures something not protected by REP.
31
What happens if evidence is obtained illegally? What section of the charter legitimizes this?
It may be excluded from trial if its use would bring the justice system into disrepute. Section 24(2)
32
What are the conditions necessary for a search to be reasonable as held in R. v. S.A.B. (2003 SCC 60)?
1. must be authorized by law
2. law itself must be reasonable
3. manner in which the search was carried out must be reasonable
33
What section of the charter explains what to do if a right is violated?
Section 24 (2) set out in Grant 2009 (remedy section of the charter)
34
What is the Grant test and what are the steps?
Test to figure out if evidence collected unlawfully should be excluded.
1. Seriousness (like was it excessive force or just a technical error? were police acting in good faith?)
2. Impact of breach on accused
3. Society's interest (how reliable is the evidence and how relevant is the evidence to the case?)
35
What is section 9?
Everyone has the right not to be arbitrarily detained (including psychologically) or imprisoned.
36
What was the Grant Case? Problem? Outcome?
Mr.Grant, young Black man, was approached by police officers in a high crime area bc he was "looking shady". They asked him for ID and if he had anything on him (which he did and admitted it). The problem was that the police had begun detainment as soon as they approached him and thus they should've told him his right to silence. The outcome was that the police made a mistake but it wasn't enough to exclude the tangible evidence.
37
In what circumstances has the SCC decided search warrants are required?
- If there is going to be secret recording of conversations by state agents
- in cases involving video surveillance
- for perimeter searches of residential premises (past the curb is private)
- before the installation of tracking devices
38
What is the definition of detention?
Police officer assumes control over the movement of a person by a demand or direction that may have significant legal consequence and that prevents or impedes access to legal counsel.
39
What is the timeline of being informed about the reason for your detention?
Does not have to be immediately but sooner rather than later, maximum 24 hours.
40
What is the timeline of being informed about the reason for your arrest?
Must be immediately
41
what is psychological detention?
True legal obligation not to walk away from a police officer or agent of the state.
42
Where does the power to arrest come from?
Criminal code and other federal statutes and provincial legislation (such as motor vehicle acts).
43
What are the reasons an arrest can be made?
prevent a crime from being committed, terminate a crime from being committed or compel an accused person to attend trial.
44
Is it common or not to be formally arrested if accused of a crime?
Not very common, less than 5% of accused. It is really only common for violent or very serious offences or if the person seems like they might flee.
45
What is needed in order to make an arrest? What are the things that need to be proven?
An arrest warrant is needed, in order to get that must convince justice of the peace that what you're saying is true and there is probable cause for the crime.
46
What contexts are exceptions to the arrest warrant rule?
When someone is caught committing an offence, reasonable belief that someone committed an indictable offence, belief that a person is about to commit an indictable offence, anti-terrorism act allows to arrest on suspicion of terrorism.
47
What is an information?
A written statement sworn by an informant, normally a police officer, alleging that a person has committed a specific offence. Given to the judge to try to get an arrest warrant (i.e. laying an information).
48
What is an arrest warrant?
A document that permits a police officer to arrest a specific person for a specified reason
49
What is section 10?
The right to counsel provision. Means that on arrest or detention everyone has right to:
a. be informed of reasons
b. access counsel without delay and be informed of that right
c. have validity of detention determined by habeas corpus and be released if not lawful.
50
What is the most debated part of section 10?
b. right to counsel and to be told of that right
51
What are the details of section 10 b?
Be told you have right to counsel, have swift access to counsel, be given an opportunity (provide phone and number if you don't have a lawyer) before questioning, rights are triggered again if the level of the sentence increases, if you've just been detained then you should be let go at end of interrogation.
52
What is granted by section 10 c?
THe right to challenge your detention in front of a judge and be released if detention is not found lawful.
53
What are the issues with the legal aid system?
The bar is very low so its not available to all low income people, there are not enough of them, they are rushed, most often they just take a plea (90-95% in US), you can be arrested for not paying fines even if you have no money.
54
What level of government control legal aid systems?
Provincial
55
What is section 11?
An person charged with an offence has the right to a) be informed without reasonable delay of the specific offence. (but it doesn't have to be immediately so the definition is a little gray)
56
What power did the charter give to accused?
The right to challenge the actions of the police.
57
List the main limits on the police given by the charter.
- police must have search warrant to get info from internet services about identity of suspects (R. v. Spencer 2014 SCC 43)
- limits on use of Mr.Big stings (R. v. Hart, 2014 SCC 52)
- severe restrictions have been placed on the investigative strategy of placing an undercover cope in a jail cell R. v. Hurley, 2010 SCC 18)
- all relevant information gathered during a case investigation must be disclosed to the defence counsel (R. v. Stinchcombe, [1991] 3 SCR 326)
- policies for strip searches must consider unique circumstance of Indigenous women and other minorities (R. v. Golden, 2011 SCC 83)
58
What are the 4 levels of courts that deal with criminal cases?
- Provincial/territorial courts
- provincial/ territorial superior courts (Kings Bench)
- Provincial appellate courts
- the supreme court of Canada
59
What is a Mr.Big sting?
An investigative strategy where officers go undercover as gang members and lure suspects into their groups, offer community, financial help, etc.. if they admit to having committed a serious offence (whatever they are suspected of).
60
What Territory is an exception to the 4 levels of court, and what do they have implemented instead?
Nunavut, and they have a unified or single-level court, the Nunavut Court of Justice, where the powers of the court have been combined into one superior court where all judges can hear all types of cases
61
What are the courts responsible for determining?
- Guilt or innocence of accused persons
- An appropriate sentence for those who are convicted
- That the rights of the accused persons are protected
62
Why do officers resort to Mr.Big stings?
Because there is not enough information on the suspect to convict them, and the suspect is considered a dangerous or serious offender.
63
What is judicial independence?
the principle that protects the legal sphere from external forces, especially the government
64
What is the confession rate for Mr.BIg stings?
75%
65
What does a case in the Manitoba Provincial court look like?
No jury
Bench Trials only
One Judge
66
What is the conviction rate when a confession is obtained?
95%
67
Why is there concern over reliability of confessions?
Mr.Big is like a looming authority that is offering something the suspect wants, so they may be coerced into falsely confessing out of desperation, fear or by wanting to impress them.
68
Where do most cases got to trial and end in Manitoba?
the provincial court
69
What is grounds for an appeal?
you need to be able to demonstrate that there was either an error in law, or a factual error has been made
70
What case law provided guidelines for Mr.Big stings? What are those guidelines?
R. v. Hart 2014. Confessions obtained via the Mr.Big strategy that rely on coercion, threats or financial inducements should not be admissible in court. Evidence collected in the stings is only admissible if the prosecutor can prove that the reliability of the evidence outweighs the prejudicial effects of the strategy.
71
what happens when you appeal your conviction?
you have to go through all the court systems
72
What does Manitobas King's Bench do?
trials and appeals, if you are having a trial at Kings Bench then you are being tried for a more serious offence
73
How many justices are in the Manitoba court of appeals?
3
74
What is entrapment?
A process in which an ordinary person commits a crime they otherwise would not have committed because they are set up to do it.
75
Who are the Justices of the Supreme Court appointed by?
the PM (the governor in council)
76
What case provided guidelines for entrapment? What are the guidelines?
R v. Mack 1988. if person is persistently harassed into committing an offence that they would not have commited had it been for the action of the police. Cannot target people randomly, must believe they are already engaged in that behaviour.
77
How many justices in the SCC and how do they work?
there are 9, and there needs to be an odd number present at all time so there is never a tie, and not all of them need to be present
78
how is a SCC case dealt with?
it is an appellate court, they do not hold trials, it is majority rules so that is why they cant have an even number of justices, and decisions made by SCC are final
79
Why is Mr.Big not considered entrapment?
Bc they are not prosecuting on the low level criminal activity they get coerced into, just the crime they have already committed so it's not technically entraping....sureeeee
80
What are the requirements for the demographics of the justices in the SCC?
3 from Quebec, 3 from prairie provinces, 1 from east of quebec , the rest can be from wherever
81
Where is the legal authority for police use of force come from?
The criminal code
82
what are the requirements to be a justice for the SCC
need to be in good standings with the law society, lawyer for 10 years, and judge for 5
83
What principles about police use of force are set out in the criminal code?
1. officers exercising force must be performing a duty they are required or authorized to do
2. they must act on reasonable grounds
3. they may use only so much force as is necessary under the circumstances
4. they are responsible for any excessive use of force
84
what is the mandatory retirement age at SCC
75 years old
85
what is the cheif justice and who is it typically appointed to?
they decide who hears what cases, who is responsible for writing the decision, and they in concert with some other judges will exercise control over the docket (what cases are we going to hear and when are we going to hear the), and the longest tenured justice is typically appointed chief justice
86
What is the one plus one standard for force?
Police can exert one level of force higher than what they're confronted with.
87
What are the five options of force?
- officer presence
- dialogue
- empty hands
- compliance tools
- lethal force
88
What must exist for a police officer to use lethal force?
There must be a legitimate threat for the officer or another human? If the suspect is unarmed and fleeing they cannot shoot.
89
what percent of cases does the SCC hear a year?
less than 1%, maybe 75 cases a year
90
What are the guidelines for a citizen's arrest?
Someone has to be actively committing and indictable offence, force must be reasonable to the situation, no search or seizure.
91
what percent of case applications does the SCC hear ?
they receive hundreds of applications but grant only about 10% of them
92
What does the castle doctrine outline?
You have the right to protect your property, if someone poses a threat you can respond but force must be proportional.
93
What are many of the cases seen by the SCC about?
they are appeals of decisions made by lower courts where the lower court judge or the tribunal must have made a mistake dealing with the law or they must have done something without jurisdiction or authority
94
What are less lethal force options?
Force option that is unlikely to cause death or serious injury. Pepper spray, tear gas, conducted energy weapons.
95
What is the principle of accountability for the police?
The actions of police officers and services are subject to review and there are formal channels that individuals can use to lodge complaints against the police.
96
when was the first Indigenous supreme court judge appointed?
2021 babbbyyyyyy
97
What has the increased visibility of the police done to processes of accountability?
Created civilian oversight and other models of accountability that include civilian involvement in investigations.
98
List things about the Court of Kings Bench
- it is the superior court in Manitoba
- federally appointed judges
- jury or judge decisions
- more serious criminal cases
- trials
99
how are the judges for MB court of appeals and the Court of Kings Benches appointed?
they are federally appointed
100
Do other branches of CJS have systems of accountability?
No, its very rare for a corrections officer, judge or prosecutors etc.. to be prosecuted.
101
Why are most complaints against the police still invalidated?
police loyalty and dismissing civilian's complaints in favour of the police officer's subjective experience.
102
what is Drug treatment court in Manitoba?
it operates within CoKB and it is designed for people with active addictions and it is for drug related offences and non-violent offences committed because of addiction
103
Where are the police codes of ethics and conduct contained?
Various provincial/territorial acts, provincial policy documents, manuals of individual police services.
104
What are some questions in ethic codes to assist officers with ethical challenges?
- “is the activity or decision consistent with organizational or agency policy and the law?”
- “do the outcomes or consequences generate more harm than good?”
- “what are the outcomes or consequences resulting from the activity of decision and whom do they affect”
- “can the activity or decision be justified legally and ethically?”
105
What happens if somebody says no to drug treatment court?
they have to go through the normal court process
106
in order to go through drug treatment court what do you need to do?
plead guilty, and take responsibility for your actions. FESS UP BITCH
107
What are two example of racial profiling?
R. v. Brown. 2003, where the Ontario court of appeal defined racial profiling.
Starlight tours: Indigenous people acting disorderly were taken out of the city and dropped off at night, even in freezing conditions. Neil Stonechild was killed by that.
108
what happens if you are not successful with drug treatment court?
a warrant for your arrest will be issued and you will be sentenced on the original charges the same way if you never went through drug treatment court
109
What is bias-free policing?
the requirement that police officers make decisions on the basis of reasonable suspicion and probable grounds rather than stereotypes about race, religion, ethnicity, gender or other prohibited grounds
110
what happens if you relapse in drug treatment court?
you don't automatically get kicked out if you are honest about relapsing, but if you lie about it then you can
111
What is racial profiling?
“the targeting of individual members of a particular racial group, on the basis of the supposed criminal propensity of the entire group”
112
Describe the main case from the Mr.Big documentary.
- (18 y o) Atif Rafay and Sebastien Burke involved in triple homicide in July 1994
- Sebastien lured into Mr.Big sting
- the guys admit to killing
- Atif says they were coerced into confessing to it
- still in jail
113
what is Gladue Courts?
takes into account the unique circumstances of Indigenous accused and Indigenous courts
114
what are problem solving courts?
specialized courts that are designed to divert offenders with special needs from the criminal justice system
115
what are 3 defining attributes of problem-solving courts?
1. focus on addressing the underlying problems of offenders, victims and communities
2. interagency and interdisciplinary collaboration
3. accountability to the community
116
What sections do we need to know for the test, and what are the relevant cases for them?
- section 7: Singh Case (he kept repeating i'm exercising my right o silence, but he ended up chatting to police and telling them revealing info), right to silence it is applied upon arrest, Hart
- section 8: search and seizure, Tessling case (weed guy), REP (reasonable expectation of privacy). Also R. V. Saeed (can use warrant to get DNA, may use force)
- section 9 everybody has the right to not be arbitrarily detained or imprisoned, grant case ( weed and gun guy and they did not notify him of his rights to silence), freedom of movement: if your freedom is being impeded by officer or the state, includes psychological
- 10 (b): McCrimmin case, don't have to wait until your lawyer is there they just have to let you contact or notify them
- 24 (2): grant test, it can only happen if police make an error
117
Who is Al Haslet?
Originator of the technique in 1990s, acted as Mr.Big many times, says its a legitimate technique.
118
What happened with Andy Rhodes? (Mr.Big sting)
A couple was killed in the woods and some woman said Andy did it, there was no other evidence connecting him to the crime, he got coerced into Mr.Big sting, they pressured him to confess and he never really did.
119
What happened with Jason dix?
He was loosely connected to a murder of two machinists in Edmonton, roped into Mr.Big, he never confessed to the murder, later sued the RCMP.
120
What came from the McCrimmon case?
the SCC held that the Charter does not require the presence, upon request of defence counsel during custodial interrogation
121
what came from the Saeed case?
the court has given police the authority to use a warrant to obtain DNA from a suspect, by force is necessary
122
what are bail courts for?
people who have been arrested, and you shouldn't have to wait longer than 3 days fro a bail hearing, done by a justice of peace not a judge
123
What is the Youth Court?
where you go if you commit crime between ages 12-18, sometimes can be tried as an adult if you are 16+ but it rarely happens
124
what is the youth criminal justice act?
it has a lot of stuff from criminal code, but some added procedures and sentencing changes
125
Why were Gladue courts created?
because of the over representation of indigeneous people in the CJS
126
what is section 718.2 (e) of the criminal code?
it require judges to consider sentencing options other than incarceration, particularly for Indigenous offenders
127
what are gladue reports?
histoircal personal impact statements that give contextual circumstances to the offenders behaviour
128
Do the federal government and the SCC ever chat?
Yes! the government sometimes asks for legal opinion, called reference or reference case. Ex. 1988: can Quebec secede from Canada?
2004: pwetty pwease can gay ppl get married?
129
how can you be eligible for peacemaker court?
plead guilty and take responsibility for actions, the victim also has to agree to do the peacemaking circle
130
what does the outcome of a peacemaker court look like?
final agreements may require the offender to provide restitution, attend counselling , and/or to complete a number of community service hours the charges get dropped if the crown approves, if crown doesn't approve the report from the peacemaking circle will be submitted to the judge at sentencing
131
Sometimes an SCC verdict essentially voids something in the criminal code true or false?
It is still in the charter but cannot be used to prosecute something. Like one time the offence of spreading false news was STRUCK DOWN.
132
What is the Indigenous People's Court in Thunder Bay?
a restorative justice approach to sentencing and draws upon Indigenous culture and traditions and elders play a key role, must plead guilty to be eligible
133
What are circuit courts?
Courts for remote areas where a judge, court clerk, defence lawyer, crown counsel fly in and does the court super fast style.
134
What is the Cree Court in Saskatchewan?
they travel to remote communities to hear cases, its judges and lawyers are cree speakers and often attended by cree-speaking probation officers, they have translators when necessary, but this court makes it possible for victims and offenders to speak in thier language
135
What are the issues with Circuit courts?
Backlog of cases, time constraints, shortage of interpreters, cultural differences, case delay, and then what to do with sentenced ppl if no room in prison?
136
What is Therapeutic Justice?
the use of law and the authority of courts as change agents in promoting the health and well-being of offenders while ensuring that their legal rights are protecting and that justice is done
137
what is community wellness court (Yukon)?
addresses the needs of people with drug/alcohol issues and metal illness, a major challenge is high rate of non-completion
138
when can mental health courts operate?
pre and post charge stages
139
how much does mental health courts reduce offending?
10-75%
140
141
How does search incident to arrest work?
Upon arresting someone, police can pat down to ensure no dangerous items on their person, search in immediate lunge area and with reasonable tools (I.e. pokey stick for bag)
