Chapter 5,6 & 7 Flashcards
what is a Quasi Criminal
quasi-criminal
similar in nature to offences listed in the Criminal Code, but under provincial or municipal jurisdiction
These offences are usually punished by a penalty (such as a fine or term of imprisonment) or a forfeiture (the loss of a driver’s licence, for example).
What is actus rea and mens rea
actus reus
Latin for “criminal act”; the objective element of an offence, which may be an act, an omission, or a state of being
mens rea
Latin for “guilty mind”; the subjective element of an offence that describes the state of mind or required intention necessary of the accused
What is Included offences
included offence
a less serious offence that might be proved even when the more serious offence charged is not
In much the same way, separate Criminal Code offences can build on each other to create more serious crimes. For example, assault with a weapon (s 267(a)) and assault causing bodily harm (s 267(b)) build on the offence of assault (s 266) by adding either a circumstance (the use of a weapon) or a consequence (bodily harm). This scheme also makes it possible for less serious offences to be included in more serious ones. This has important practical implications for law enforcement officers. If a person is charged with assault causing bodily harm (application of force + injuries caused + intention to apply force), but there is insufficient evidence to prove that the actions of the accused caused injuries to the victim, the accused may still be convicted of assault (application of force + intention to apply force). The police are not required to charge the accused with both offences because assault is considered to be included in assault causing bodily harm. Note, however, that if the prosecution fails to prove that the accused applied force or attempted to apply force to the victim, the accused cannot be convicted of either offence.
What is the criminal investigation process (what is it govern by)
Once a crime has been committed, it is up to the police to investigate it, collecting evidence to prove who committed the offence and how. The goal is to collect enough evidence to prove that a person is, in fact, guilty of the crime to the satisfaction of a judge or jury in court.
The criminal code
Common Law
Charter of Rights and Freedoms
What are the police powers with summary conviction powers
The summary conviction offences are less serious offences that carries lighter penalties. Any charge tried by summary conviction, is tried in the provincial court before a judge alone. no preliminary hearing is held.
Authority to arrest
-under section 495(1_ of the criminal code of canada police can arrest with a warrant if they find
someone:
1. Committing a summary offense
2. 2. Escaping from lawful custody or under a warrant.
-however for minor summary offenses, officers are encouraged to issue a summons or appearance notice rather than arrest.
- Cannot Photograph and fingerprint
8 9 10 of the charter
Section 8
* “Everyone has the right to be secure against
unreasonable search or seizure.”
* What does “unreasonable” mean?
* To prove a breach of section 8 of the Charter, the
onus is on the individual to show they have a
reasonable expectation of privacy (personal
privacy, territorial privacy, or informational privacy)
Section 9
* Protection against arbitrary detention
* What does “arbitrary” mean?
oArticulable cause, extent and duration, conduct
of police
* When is a person “detained”?
oWhen person is physically or psychologically
deprived of freedom to leave
Section 10(b)
* Right to instruct counsel
* Without delay
* Accused must be informed of right upon arrest
or detention
* Accused must be given chance to exercise right
in a timely fashion
* Impact on evidence if this right is violated
What is show case/bail hearing
show cause
another name for a bail hearing, where the prosecution is required to show cause as to why the accused should not be released before trial
can use Hearsay evidence
The Criminal Code and the common law do this by creating procedures by which a justice (either a judge or a justice of the peace) decides whether the accused should be released or kept in custody while awaiting the trial.
The principle of restraint has recently been codified in section 493.1 of the Criminal Code:
493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.
These procedures, as to whether the accused should be released or kept in custody, are divided into two categories, depending on the seriousness of the offence. For less serious charges (those not listed in s 469 of the Criminal Code), the accused must be granted a bail hearing at which they must be granted an unconditional release unless the Crown can show cause for detaining the accused or for placing conditions on their release.
What is reasonable search
In the case R v Collins,10 the Supreme Court of Canada determined that a search will be reasonable if:
it is authorized by law,
the law itself is reasonable, and
the manner in which the search is carried out is reasonable.
what is an informant
informant
(for a document) the person, usually a police officer, who swears the facts in an application for a search warrant or on a charging document
The common law rule is that the warrant itself must be obtained legally and according to specific requirements; otherwise, the warrant is improper, and the search is illegal. The usual procedure for obtaining a search warrant is for a police officer (the informant) to appear before a judge or justice of the peace. The officer swears to the truth of an affidavit, which the Code calls an information to obtain a search warrant, that sets out the grounds for believing that the items sought in a search warrant will result in discovering evidence of the commission of a crime.
Difference between a search incidental to arrest and a search during an investigative detention.
You can search for Weapons
Evidence of the offence
Means of escape
It is important to maintain a distinction between a search incidental to arrest and a search during an investigative detention. During an investigative detention, the police do not have reasonable and probable grounds to arrest the detainee. They have a reasonable suspicion that the detainee is involved in some way with the offence. As such, the power to search a detainee is also significantly limited. In this case, the officer is permitted to perform a protective pat-down search for weapons if they believe on reasonable grounds that their own safety, or the safety of others, is at risk. A mere hunch or intuition will not be sufficient to warrant a search.
Different types of trials
In Canada, there are two main types of criminal trials based on the seriousness of the offense: summary conviction trials (for less serious offenses) and indictable trials (for more serious crimes). These trials can take place in either a provincial court or a superior court. Here’s an overview of the key types of trials and what happens in each court:
- Summary Conviction Trials (Provincial Court)
Offenses: These trials deal with less serious crimes (e.g., minor theft, mischief, and most traffic violations).
Court: Provincial Court (without a jury).
Judge: The trial is heard by a provincial court judge alone. There is no jury involved.
Procedure:
Plea: The accused pleads guilty or not guilty. If they plead guilty, they are sentenced immediately or after a short hearing.
Trial: If the plea is not guilty, the trial proceeds, during which the Crown prosecutor presents evidence, calls witnesses, and makes arguments. The defense can cross-examine witnesses and present its own evidence.
Verdict: The judge determines whether the accused is guilty or not guilty based on the evidence.
Sentencing: If found guilty, the judge imposes a sentence, which may include fines, probation, or a short jail term.
Key Features: Summary conviction trials are typically faster and less complex, with fewer pretrial procedures. The maximum penalty for most summary conviction offenses is a fine of up to $5,000 or six months in jail. - Indictable Offense Trials (Provincial or Superior Court)
Indictable offenses are more serious crimes, and trials can occur in either provincial court or superior court, depending on the offense and the choices made by the accused.
Provincial Court (Indictable Offenses)
Offenses: Less serious indictable offenses (e.g., theft under $5,000, some types of assault).
Court: Provincial Court (without a jury).
Judge: These trials are heard by a provincial court judge alone (no jury).
Procedure:
Preliminary Hearing: For some indictable offenses, there may be a preliminary inquiry to determine if there is enough evidence to proceed to trial. If so, the case continues to a trial.
Trial: Similar to a summary trial, the Crown and defense present evidence, call witnesses, and make arguments. The judge then decides the outcome.
Superior Court (Indictable Offenses)
Offenses: Serious indictable offenses (e.g., murder, sexual assault, robbery).
Court: Superior Court.
Choice of Trial: For many serious crimes, the accused can choose one of three trial options:
Trial by judge alone in provincial court.
Trial by judge alone in superior court.
Trial by judge and jury in superior court.
Procedure:
Preliminary Hearing: For serious indictable offenses, a preliminary hearing may be held in provincial court to determine if there’s enough evidence for a trial in superior court.
Trial:
In judge-alone trials, the superior court judge hears the case, evaluates the evidence, and delivers a verdict.
In jury trials, the jury is selected, and they decide the guilt or innocence of the accused, while the judge oversees the legal process and sentencing.
Sentencing: If found guilty, the judge (whether in judge-alone or jury trials) imposes a sentence, which can range from probation to life imprisonment, depending on the offense.
Key Features: Indictable trials are often more complex, involving more pre-trial procedures (such as bail hearings, preliminary inquiries, and motions). Sentences for indictable offenses are typically much more severe, with life imprisonment being possible for crimes like murder.
- Hybrid Offenses (Crown Election)
Offenses: Some crimes (e.g., assault causing bodily harm, fraud) are considered hybrid offenses, meaning the Crown prosecutor can choose to proceed either by summary conviction or as an indictable offense, depending on the seriousness of the crime.
Court: Depending on the Crown’s decision, the trial will be heard in either provincial court (if summary) or in superior court (if indictable).
Key Features: Hybrid offenses give the Crown flexibility to decide how to handle the case based on factors like the seriousness of the offense, the background of the accused, and the available evidence.
Summary of Court Procedures
Provincial Court: Handles all summary conviction trials and some indictable trials (judge-only trials). Quicker, less formal procedures.
Superior Court: Handles more serious indictable offenses, with the option of jury trials. More formal with complex pretrial processes, including preliminary hearings and voir dire (legal arguments about admissibility of evidence).
In both courts, if the accused is found guilty, sentencing follows, and there are opportunities for appeals based on errors in law or significant procedural issues.
The grounds for ordering detention
Some grounds for ordering detention include:
Danger to the public: The individual is a danger to the public
Flight risk: The individual is unlikely to appear for a proceeding or examination
Reasonable suspicion: The individual may be inadmissible to Canada for reasons such as criminality, human or international rights violations, or organized criminality
Identity: The individual’s identity has not been established
Seriousness of the offense: The seriousness of the offense is a factor in determining whether detention is necessary
Information known to the police: The information known to the police about the suspect or the crime is a factor in determining whether detention is necessary
Circumstances of the encounter: The circumstances of the encounter, including the nature of the police conduct, the place of the interaction, and the duration of the encounter, are factors to consider
Characteristics of the individual: The individual’s characteristics, such as age, physical stature, minority status, and level of sophistication, are factors to consider
The disclosure of defence and the crown
Since our criminal justice system is based on the presumption of innocence, and since the common law (arising out of s 7 of the Charter) has determined that accused people have a right to know the case that will be made against them and to make full answer and defence to that case, we have developed a system of disclosure that requires the police to provide all evidence to the Crown, and the Crown to provide to accused people and their lawyers all evidence in its possession related to the particular offence. This is often called Crown disclosure.
Section 469 offences
Supreme Court Judge
SECTION 469 OFFENCES—SUPERIOR COURT JURISDICTION
These offences fall under section 469 of the Criminal Code* and are under the Superior Court’s jurisdiction:
treason (s 47),
intimidating Parliament or legislature (s 51),
inciting to mutiny (s 53),
seditious offences (s 61),
piracy (s 74) and piratical acts (s 75),
murder (s 235), and
an offence under any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act.†
For charges based on less serious or non–section 469 offences, section 503 of the Criminal Code provides that the accused is entitled to be brought in front of a justice of the peace within 24 hours of the initial arrest and detention.
Preliminary inquiries
preliminary inquiry
a judicial hearing where the prosecution must demonstrate that it has enough evidence to prove, if uncontested and accepted by the trier of fact, that the accused is guilty of the charges against them
Once a not-guilty plea has been entered for an indictable offence, a preliminary inquiry, or prelim, may be conducted before the trial in accordance with part XVIII of the Criminal Code. The purpose of the prelim is to force the Crown to prove to a judge that the available evidence is sufficient to require the accused to stand trial for the offence charged. It is a pre-trial screening procedure which serves to filter out weak cases that do not merit a trial.
