Chapter 1

Question 1

What is real-evidence?

Answer 1

Evidence other than viva voce testimony of a witness, which is then observed by the court
- this is mainly physical evidence (something tangible that you can touch) and can be anything that was found in the possession of the accused or at the scene of the crime

Question 2

What are statements?

Answer 2

Acquires routinely by the police from witnesses in their investigation of alleged offences

• police often rely on these statements to make it easier
• statements themselves do not usually become evidence in a trial - they cannot typically be used in court, the only exception is when a child is involved
• most statements are now done on video
• people who make these statements must come to court to provide fresh evidence, however often these witnesses do not want to cooperate after they provide their statement

Question 3

What is viva voce?

Answer 3

Oral evidence given by a witness in court under oath or affirmation

• this statement is often used to cross-examine
• as long as the person is alive, fresh evidence must be given in court

Question 4

What is circumstantial evidence?

Answer 4

Evidence introduced to prove one fact, from which another ultimate fact in issue can be inferred

• connecting the dots together
• each piece on its own does not say anything but together they can be pieced together

Question 5

What is the exclusionary rule?

Answer 5

A rule excluding evidence which would otherwise be admissible

Question 6

What is the fruit of the poisonous tree?

Answer 6

A doctrine under which an illegal act is automatically excluded

• if any evidence is obtained illegally then the rest falls apart
• the only exception would be if the police were acting in good faith when the accused rights were violated - in certain cases, this evidence could still be used in trial

Question 7

What is inevitable discovery?

Answer 7

A possible exception to a general exclusionary rule for illegally obtained evidence, which may apply when it can be shown that the evidence would have been lawfully obtained in any event whether the illegal steps had been taken by the authorities or not

Question 8

What is section 24 (1) of the Charter of Human Rights and Freedoms?

Answer 8

Anyone’s whose rights and freedoms have been infringed or denied have the right to a remedy if the court agrees that there was a breach right to remedy

Question 9

What is section 24 (2) of the Charter of Human Rights and Freedoms?

Answer 9

The exclusion of evidence but requires more than the mere fact of the violation of ones rights, to exclude evidence it must be because if included it would bring the administration of justice into disrepute

• evidence must have been obtained in a manner that infringed or denied the accused’s rights
• it is also sufficient if the Charter violation preceded or occurred while the evidence was being gathered

Question 10

What is an Onus of proof?

Answer 10

Refers to which party is required to prove something

- ex. onus is on the accused to show that there was a violation of ones rights under section 24 (2)

Question 11

What does it mean when we refer to evidence being obtained in a manner?

Answer 11

Evidence must be obtained in a manner that violated an accused’s right before section 24(2) of the Charter can be invoked

Question 12

What does it mean when we refer to bringing the administration of justice into disrepute?

Answer 12

A question of law, the test under section 24 (2) which determine whether improperly obtained evidence should be excluded
- evidence must be excluded if its admission could bring the administration of justice into disrepute

Question 13

What is a voir dire?

Answer 13

A hearing (trial within a trial) usually conducted by the judge, to determine legal questions, such as the admissibility of evidence

• mini trial to talk about the evidence, explains what occurred
• need a voir dire in order to use section 24 either (1) or (2)

Question 14

What is the Grant framework?

Answer 14

Determines the framework under section 24 (2) to determine when evidence should not be excluded

1) Looks at the behaviour of the officers - are they acting in good faith?
2) What was the extent of the breach? - where they denied the right to counsel or suffered severe physiological or psychological abuse?
3) How important is the evidence to the case? - is the system in disrepute?

Question 15

What can a judge say about evidence being presented by the Crown?

Answer 15

They cannot deny the evidence

• they can however claim that it is not relevant and reduce the weight on the evidence
• they can also remove evidence if it was obtained illegally

Question 16

Are criminal acts the same as criminal offences?

Answer 16

No they are provincial offence tickets

Ex. Illegal turn, speeding, public intoxication

Question 17

Once convicted what happens with DNA?

Answer 17

If convicted, you have to provide your DNA to enter the database
- this is for future crimes to see if the person is involved in any new crimes, when there is a new crime they will run the DNA through the National DNA database to see if there are any matches

Question 18

Once convicted, do officers need a search warrant to obtain your DNA?

Answer 18

No, the only time a DNA warrant is needed is prior to conviction to gather evidence for the trial
- this is all listed within section 487

Question 19

What is the difference between DNA order and DNA warrant?

Answer 19

DNA Warrant - during the investigation when you want to link an individual with the crime
DNA Order - What the court orders once you have been convicted

Question 20

Who chooses the remedies?

Answer 20

a judge

Question 21

Section 24 (2) is a compromise between what?

Answer 21

Common law approach (illegally obtained evidence is admissible if relevant) and the US approach (where illegally obtained evidence is inadmissible)

Question 22

Can the seriousness of an offence play a role in the admission of evidence?

Answer 22

Yes

• Guns are excluded at a 20% lower rate than drugs
• In the Grant case, the gun was highly reliable and essential for the case and was therefor not excluded