Chapter 6: Criminal Procedure and Evidence Flashcards
Give examples of the conflict between crime control and due process.
Crime control would be the exclusion-of-evidence rule, which allows police officers to exercise discretion. However, due process is the high standard of proof for Crown, and that the jury decision must be unanimous.
What are the 3 levels of the Criminal Justice Process?
- Police investigation.
- Prosecutions’s analysis.
- Criminal court process.
What are the 3 steps that must be chronologically satisfied before the criminal trial process can be carried out? The individual who committed the crime must be:
- Correctly arrested.
- Accurately identified.
- Appropriately charged.
What are the 3 reasons people can be arrested?
- Prevent a crime from being committed.
- Terminate a breach of peace.
- Compel a person to attend trial.
What are 3 cases where police do not need a warrant to arrest?
- They have caught a person in the middle of committing an offence.
- They have reasonable grounds for believing that a person has committed an indictable offence.
- They have reasonable ground for believing that a person is about to commit an indictable offence.
Reasonable grounds
The required basis for arrest; more than a hunch or mere suspicion.
Necessary in the public interest
One of the criteria that an arrest must meet if it is made without a warrant. “Reasonably necessary in light of all the circumstances.”
Does being charged mean that you are a criminal?
No.
What are the two types of written statements that may be involved during charging, besides the charge itself?
- Information.
2. Indictment.
Information
A written statement given by the police or a private citizen to a magistrate that describes in ordinary language the alleged offence for which a warrant or summons is required, and that may be sustained on oath.
Indictment
A written accusation that sets our charges against an accused person for a serious indictable offence.
What is the two-tiered test administered by the Crown to decide whether or not to prosecute?
- Evidential test (is there sufficient admissible evidence?).
- Public interest test.
Admissible
Allowable as evidence in a case.
Most offences are ___ (summary, indictable, hybrid).
Hybrid.
What are some factors considered by the Crown in hybrid cases?
- Seriousness.
- Criminal Record.
- Recommendation of attorney general.
- Effect of having to testify on witnesses or victims.
- Public interest.
Prima facie
Legal presumption meaning “on the face of it” or “at first sight.”
What are the 3 peremptory pleas that can be issued at a preliminary inquiry?
- Pardon (has been convicted of same offence before).
- Autrefois acquit (has been acquitted of same offence before).
- Autrefois convict (has been convicted of the same offence before).
Disclosure derives from…
The right of the accused to make full answer and defence.
Is disclosure absolute?
No, the timing can be controlled by the Crown, and irrelevant information can be withheld.
What are the 2 purposes of disclosure?
- Ensure the accused knows the case to be met and is able to make full answer and defence.
- To encourage the resolution of facts at issue, and when appropriate, allow the entering of a guilty plea in early stages of proceedings.
Privilege
Legal right to keep certain kinds of communication confidential.
3 conditions of privilege:
- Communication between attorney and client.
- Communication that entails the seeking or giving of legal advice.
- Communication that is intended to be confidential by the parties.
Who does privilege apply to? (client, lawyer, or both)
Client.
Litigation privilege
Immunity given for certain acts and statements taken in connection with the litigation process.
What are the 3 limits to physician-patient privilege?
- Whether there is a clear risk to an identifiable person or group of persons.
- Whether there is risk of serious bodily harm or death.
- Whether the danger to public safety is imminent.
What are the 2 purposes of bail?
- To ensure or secure the accused’s appearance in court.
- Relieve the accused of imprisonment, and the government of the burden and cost of keeping the accused in prison while pending trial.
What are the 2 elements to the Charter right concerning bail?
- The right to reasonable bail.
2. The right to not be denied bail without just cause.
What are 3 reasons to deny bail.
- Ensure accused’s attendance in court.
- Protect the public.
- Maintain confidence in the administration of justice.
Reverse onus of proof
Occurs in bail hearings, where defendant must demonstrate why they should be released on bail.
How does a criminal trial go?
Crown -> Defence x-examination -> Crown re-examination -> Defence -> Crown x-examination -> Defence re-examination -> Defence closing statements -> Crown closing statements (this one and previous one are switched when defence has no witnesses) -> judge decision or judge charges jurors.
When do defendants have a right to a jury?
When the charge they are facing is over 5 years of imprisonment.
In general, all jurors are…
Canadian citizens who have reached the age of majority.
What are 3 reasons that a juror may be excused from jury service?
- Personal interest in the matter being tried.
- Relationship with the judge, Crown, accused, counsel of the accused, or a prospective witness.
- Personal hardship or other reasonable cause.
How many jurors are selected?
12.
What are the 2 types of challenges that the defence and prosecution can make on jurors, and how many do they get of each?
- Peremptory (12, or 20 in serious cases).
2. For cause (unlimited).
Give examples of for cause challenges on jurors:
- Not neutral.
- Convicted for an offence where imprisonment exceed 12 months.
- Not Canadian citizen.
- Physically incapable.
- Doesn’t speak official Canadian language that the trial is being conducted in.
Hung jury
A jury that is not able to reach a unanimous verdict; that is, not all jurors can agree that the accused is guilty.
Double jeopardy
The constitutional right not to be tried again for which there was a previous conviction or acquittal.
Canada Evidence Act
Codification of earlier common law on sources of evidence.
Principled flexibility
Judge has discretion to act within the principles of relevance, finality, efficiency, and fairness.
Burden of proof
On prosecution, who has to convince the trier of the fact of the guilt of the accused. Must prove actus res and mens rea beyond a reasonable doubt.
What are the percentages required for burden of proof in criminal and civil cases?
For criminal 95%, and for civil 50%.
What are the 4 types/purposes of evidence?
- Demonstrative.
- Illustrative.
- Direct.
- Circumstantial.
What is demonstrative evidence?
Evidence that stand alone, such as video surveillance.
What is illustrative evidence?
Used by witness to show something, such as maps.
What is direct evidence?
Supports proposition directly, such as fingerprints.
What is circumstantial evidence?
Used to infer a conclusion, such as a sighting of the accused at the time of the offence.
In Canada, which has more value: direct or circumstantial evidence?
Both are equally valued.
What are the 3 classifications of evidence?
- Real (tangible).
- Documentary (printed).
- Testimonial (viva voce).
Viva voce
Statement given orally to the court.
What is a lay vs. expert witness?
Expert witnesses give testimonies based on scientific, technical, or specialized knowledge, and may give opinion.
What happens when an objection is sustained?
The witnesses must refrain from answering the question.
What are some factors that must be considered when admitting or dismissing illegally obtained evidence?
- Nature of the trial.
- Nature of the Charter violation.
- Effect of excluding the evidence.
