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crim 330 > week 1-3 > Flashcards

week 1-3 Flashcards

1
Q

what is jurisdiction

A
  • Geographical or territorial in nature
  • competence: the level of gov that has authority to enact laws
    - gov has jurisdiction to enact crim laws, provinces don’t
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2
Q

structure of courts

A

prov: everything paid for by prov gov

supreme/court of appeal (federal): paid by prov gov, judges are federally elected

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3
Q

division of powers

A

prov: jail for less than 2 years and go to prov jail

fed: goes to jail for 2+ years and fed prison

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4
Q

who has competence to make laws and hear trials

A

fed has all authority to make crim laws
- prov can’t

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5
Q

who gets to prosecute

A

prosecutor = attorney general (in provinces)
- fed AG (in territories and conspiracies & substansive offences for non-code fed offences)

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6
Q

Jordan limits

A
  • 18 months prov court
  • 30 months sup court

Only counting delays the system is responsible for

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7
Q

magna carta

A

Demand for justice in a reasonable length of time

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8
Q

classification of offences

A

indictable: serious offence
- murder, SA, armed robbery

summary: less serious offence
- shoplifting, public intoxication, trespassing

hybrid: tried as either a summary or indictable offense
- Impaired driving, Theft under $5,000

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9
Q

process of indictable offences

A

choose between diff modes of trial
- choose through s 536.2
- right to prelim inq when charged with 1 of more serious offenced in CC (choose this)
- can be tried before judge/jury or by judge alone

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10
Q

preliminary inquiry

A

court hearing that determines if there is enough evidence to try someone for a serious criminal offense

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11
Q

process of summary offences

A
  • tried in prov court (before judge alone)
  • no option for prelim inquiry
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12
Q

process of hybrid offences

A
  • by either indictment or summary
  • crown chooses for each case

34(1) determines hybrid offences as indictable unless and until crown proves otherwise

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13
Q

interpretation act

A

34(1) where an enactment creates an offence
(a) indictable if enactment provides that offender by prosecuted this way

(b) summary if no grounds for indictable

(c) no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of a summary conviction

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14
Q

juridiction of a prov court judge (s 553)

A

to try, must be absolute and not depending on consent of accused where charged in an information
- theft
- falsely obtaining money
- unlawfully having smth in possession

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15
Q

list that prov judges dont have authority for (s 469)

A
  • treason
  • intimidating parliament or legislature
  • pirarcy
  • murder
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16
Q

territorial juridiction

A

Prov court only jurisdiction within province
- And same with superior court

Coming across border with contraband
- Criminal law and goes to prov (weapons, etc)
Cash? Gets prosecuted by fed court in a building paid for by fed gov (indian act, income tax, etc)

Prov court cannot hear matters from other provs unless there is a connection to BC

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17
Q

3 boxes for criminal case

A
  • identity
  • jurisdiction
  • guilt
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18
Q

charter jurisdiction

A

Sec 1- no real harm donw, ignore it

Sec 24- breach was bad and we must grant remedy (exlcude evidence or let evidence in)
- Will run into this more often

Sec 52- illegal, fed gov must enact new law to create it
Ultravirus (latin term)

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19
Q

r criteria for r v oakes test

A
  1. sufficiently important objective
  2. rational connection
  3. least drastic means
  4. proportionate effect
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20
Q

If a breach is minor, will court put weight on it? How can u get a breach?

A

If breach is very minor, court will not put weight on it
Must be an important right that’s broken and broken in specific way

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21
Q

proportionate effect

A
  • Balance of your rights and society’s right to process or prosecute crimes
  • law must not have a disproportionately severe effect on the persons to whom it applied
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22
Q

how does precedence work

A

top-down process

SCC is highest and the sup court in every prov = binding to all lower courts

then court of appeal

then court of trial

similar sets of facts should be treated same way every time to make uniformity

equal level decisions are persuasive, not binding

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23
Q

what is section 8 of the charter

A

everyone has right to be secure against unreasonable search or seizure

people have a reasonable expectation of privacy

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24
Q

search and seizure

A

right to protect people and property

Cits are free of unreasonable S/S

unauthorized and warrantless searches are prima facie unreasonable unless exigent circumstances are present

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25
constitutionality test
make sure warrant was done on correct info and exercised properly
26
during a S/S breach, is evidence always excluded?
no Court has right of sufficient or insufficient importance to warrant evidence consider is If admission of evidence will bring administration of justice into disrepute
27
waterfield test
recognizes the power of search incidental to arrest and helps determine the limits of police authority to interfere with an individual’s liberty reasonably necessary based on factual circumstances used in dedman
28
what influences if evidence gets admitted or not
- location (border or home) - who u are (public or private figure) - type of investigation - level of expectation of privacy in the seized item (computer vs garbage)
29
what case is the common law search power from
seymane (1604) the house of every one is to him as his castle and fortress
30
define search and seizure
search: any action by a state agent that intrudes one's reasonable expectation of privacy seizure: non-consensual taking by a state agent of which one has a reasonable expectation of privacy
31
expectation and probable grounds in hunter case
No law may permit a S or S without sworn RnP grounds that evidence that a specific offence will be found
32
what to do when challenging s8 breach
Defendant must be able to demonstrate that his personal right to privacy was breached (1) the subject matter of the seizure; (2) if the Defendant has a direct interest in the matter; (3) the subjective expectation of privacy in the subject matter; (4) and if the subjective expectation of privacy was objectively reasonable
33
totality of circumstances test
(1) the subject matter of the seizure; (2) if the Defendant has a direct interest in the matter; (3) the subjective expectation of privacy in the subject matter; (4) and if the subjective expectation of privacy was objectively reasonable
34
is there a reduced expectation of privacy at borders?
yes
35
3 levels of interference with rights (border) (simmons case)
in simmons case 1. routine luggage, frisk, patdown 2. strip, skin 3. body cavity searches
36
use of drug dogs
smell for drugs and then if they sit = drugs police must have reasonable suspicion that evidence will be discovered - totality of circumstances - particulized conduct or evidence - profiling can reduce suspicion - reliability of drug dog
37
section 24 of charter
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. remedies against unconstitutional gov action
38
section 1 of charter
guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society rights and freedoms can be limited by law if the limits are reasonable
39
section 7
right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice
40
section 10 of charter
(a) Gives people the right to be told why they are being detained or arrested - ensure understanding (b) Gives people the right to contact a lawyer, seek legal aid, and get the information they need to get legal aid without delay
41
note from lec 2
never been case where a law has violated s8 and been saved by s 1 most s8 cases are police conduct cases, where s1 is not applicable by s 24(2) is brought into issue
42
section 24(2) of charter
obliges law enforcement authorities to respect the exigencies of the Charter and precludes improperly obtained evidence from being admitted when it impinges on the fairness of the trial
43
code search powers
s. 487 - general power reasonable grounds to believe that there is in a building, receptacle or place s 487.1 for telewarrants - if it is impractible to obtain warrant directly from a judge - fax in request s 29 requires person executing warrant to bring it with them must be by days (6am -9pm)
44
levels of certainty
- beyond reasonable doubt - clear + convincing evidence - preponderance of evidence - reasonable grounds to believe (r + p grounds) - reasonabel suspicion - belief with air of reality - hunch
45
non-code federal statutes
controlled drugs and substances act (s 11) motor vehcile search if have warrant not needed in exigent circumstances
46
example of exigent circumstances
When someone is running to bathroom to throw away drugs best to act without warrant to preserve evidence
47
a search is never a fishing expedition
- Cant go in hoping you will find a fish - Must have R and P grounds to believe
48
ways to challenge warrant
- reasonable grounds for belief - what evidence is being sought - must be specific
49
full & frank disclosure
- accurate and candid info; avoid tricky language - Have the duty to tell court everything so court has all the information to decide what they what they want to do full - all the information on case frank - stuff that hurts and helps case
50
ITO
Information to Obtain a Search Warrant
51
what needs to be on ITO
- evidentiary support for warrant - Describe nature of, info uncovered by, police investigation to show that the necessary evidence exists - full and frank
52
code powers summary
- anything that an offence had been suspected to be committed - anything that will afford evidence - anything used for purpose of committing any offence - any offence-related property -search and seize it (issue and authorize warrant)
53
objective test for reasonable grounds to believe
would avg think its reasonable
54
subjective test for reasonable grounds to believe
The person who exercises a power (such as the power to make an arrest) based on reasonable grounds to believe must subjectively believe that reasonable grounds for their decision exist,
55
plain view doctrine (s489)
everyone who executes a warrant may seize, in addition to the things mentioned in the warrant, anything that person believes on reasonable grounds a) been obtained by commission of offence b) been used in commission of offence c) afford evidence in respect of an offence every peace officer - Anything in plain view, they can seize
56
6 step procedure when challenging valdity
1. identify issue 2. state relevant law 3. apply law to facts 4. consider counterarguments 5. reach conclusion 6. evaluate policy and reform
57
3 limitations when searching incidental to arrest
discretionary power - dont have to but can valid objective - officers safety search cant be done in abusive manner
58
general rules regarding s/s
illegal searches are unreasonable - violating s8 warrantless searches are prima facie unreasonable breaches of s8 dont always result in exlcusion of evidence
59
code power to search in exigent circumstances
when necessary to prevent bodily harm or death when necessary to prevent destroying evidence
60
common law search by consent
if u consent, can't unauthorize it after its occurred (volenti non fit injuria)
61
consent searches
when accused is being asked to waive a right, indv must make a voluntary & informed decision to permit search in the awareness of consequences test
62
consent searches (wills case)
- expresses/implied consent - person has authority to give consent - voluntary - person is aware of nature of search being requested - aware of right to refuse - aware of consequences of giving consent
63
change of jeopardy
when there is a change of reason u are being questioned, must be informed
64
who decides facts of case
trier of fact in judge and jury case - jury is trier of fact and judge is trier of law in judge case - judge is both
65
2 step approach in consent searches
- Give consent voluntarily Aware of consequences
66
do schools haver lower level of expectation of privacy
yes
67
administrative law
any board, commission, or organization
68
is there lower expectation of privacy in car
yes
69
privacy interest
- personal - territorial - informational
70
ancillary powers doctrine
police duties include "preservation of peace, prevention of crime, protection of life and property" permit the police to discharge their duties in new contexts and circumstances
71
plain view and knee
police can seize what is in plain view during warranted search
72
6 steps in garofoli
1. reasonable grounds 2. necessity 3. minimization (minimize the amount of private conversation intercepted) 4. Judicial Authorization 5. Period of Authorization (time period when it is valid) 6. Ongoing Judicial Review (report back to the judge to confirm that the wiretap is still necessary and that it continues to meet the criteria for minimization and reasonable use)
73
conviction upheld =
when an appellate court agrees with a lower court's decision and refuses to overturn it. This means that the lower court's verdict stand
74
acquittal =
legal decision that a defendant is not guilty of a crime
75
conviction =
been declared guilty of a criminal offense
76
r v fearon and cell phone search
power to search incident to arrest to grant police power to search a cell phonee 3 key factors; - scope of search must be tailored to purpose of search - only justified in cases involving public risk - searches to discover evidence will only rarely be justifiable necessary to arrest officers must keep detailed notes of what they have examined
77
section 9 of charter
right not to be arbitrarily detained
78
ancillary powers doctrine
allows police to perform actions that are reasonably necessary to carry out their lawful duties, even if not explicitly authorized by statute.
79
appeal upheld =
state that a decision which has already been made, especially a legal one, is correct
80
consent searches in BCCA (head)
matters determined: - did accused give consent voluntarily - was he aware of consequences
81
appeal dismissed=
a higher court has reviewed a decision made by a lower court, and they have decided not to change or overturn that decision

crim 330 (4 decks)

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