Criminal and Quasi-criminal law Flashcards
What jurisdiction does criminal law fall under?
Federal jurisdiction, including federal legislations such as; the Controlled Drugs and Substances Act, and the Criminal Code (Code)
Where are criminal trials held in Ontario (for adults)?
2 trial courts: The Ontario Court of Justice, and the Superior Court of Justice (jury)
What are the types of charging documents?
- The information- charging document used in ONCJ
- The indictment- charging document in the SCOJ
How does the Code categorize offences?
“straight” summary, “straight” indictable, and hybrid
What are straight summary conviction offences?
Generally speaking, the least serious offences and attract the lowest penalties = is liable to a fine not more than $5000 or to a term of imprisonment not more than 2 years less a day
What are straight indictable offences?
most serious offences, most severe penalties (14 years improsonment)
What are hybrid offences?
Majority of offences, the Crown has the choice to proceed summarily or by way of indictment
Are paralegals allowed to appear in hybrid cases?
Paralegals may only appear in the ONCJ on certain summary conviction offences and on specified hybrid offences where the Crown has elected to proceed summarily
What is a charge screening form?
If the Crown determines that there is a reasonable prospect of conviction on the charges laid.. the Crown will complete a charge screening form and prepare disclosure for the defence it includes: the charges, how the Crown elects to proceed, etc.
How is the process of an information initiated?
Any one with reasonable grounds to believe that an offence has been committed may LAY AN INFORMATION IN WRITING and under oath before a justice ex parte (without notice to the accused). Most likely the informant is a police officer. The information is presented to and sworn before the justice.
What is a pre-enquete?
where the informant is a private citizen a “pre-enquete” hearing is had in camera, the judge must hear all evidence and allegations and they will decide to proceed or not too (summarily, hybrid etc.)
What is a mandamus order?
If the Court refuses to issue process, the informant may bring an application in the Superior Court for a mandamus order to compel the judge to issue process (must be done within 6 months)
What are substantive requirements of informations? & what are they?
The purpose of such provisions is to ensure that the charging document provides the accused with sufficient information to appreciate the charge to be able to prepare a full answer and defence to the allegation. 4 basic rules
- A single transaction
- An offence known to law
- Only one offence per count
- the act or omission must be identified
What happens when an amendment is made to an information?
It becomes endorsed on the original document and forms part of the charge
What happens when an information is quashed?
Where an information is so deficient that it is quashed, this may end the prosecution, an application to quash an information must be made before a plea is entered.
What is territorial jurisdiction?
A general rule is that, an accused is tried in the territorial jurisdiction in which the offence was committed.
What are the time limits on trial jurisdiction?
In summary conviction offences, the information must be laid within one year after the time the proceedings arose . With that, ALL accused persons have a right to be tried within a reasonable time pursuant to s. 11(b) of the Charter. If the accused establishes the contrary, the usual remedy is a stay of proceedings
What is the burden of proof in the Code?
For every offence, the Crown has to prove BEYOND A REASONABLE DOUBT. The Crown must prove both the ACTUS REUS and the MENS REA of the offence beyond a reasonable doubt. The act or omission of the offence must be proved as well as the criminal intent
What are some common summary conviction offences?
Causing a disturbance, trespassing at night, Taking a motor vehicle without consent, Attempts and accessories after the fact, summary conviction
What are some common hybrid offences? & defences
Careless use and storage of firearm, Carrying concealed weapon, Disobeying order of court, Obstructing or resisting a peace officer, Public mischief, Failure to comply, failure to attend, Criminal harassment, Assault, Theft. under $5000, Forgery, False alarm of fire
Defences: lawful excuse, self-defence, simple mistake, consent
What is search and seizure? S. 8 of the Charter
Search powers are governed by s. 8 everyone has the right “to be secure against unreasonable search or seizure”. Protects a reasonable expectation of privacy.
What is prior judicial authorization?
A search without prior judicial authorization (i.e. a warrantless search) is unreasonable. Prior judicial authorization will take the form of a search warrant. The warrant must be issued only where the judge is satisfied on sworn evidence that the prerequisites for issuing the warrant are met.
What is an information to obtain?
Most search provision requests require these three factors (an offence, the evidence to be seized, and the location of the search) to all be established on reasonable grounds
What is a sealing order?
in certain circumstances where the dosclosure of information contained in a warrant application would identify a confidential informer, endanger a person engaged in particular intelligence etcc. or compromise an ongoing investigation.. the police will usually apply for a sealing order to prohibit access ..
How are search warrants issued ?
In writing. Typically issued by a judge of the Ontario Court of Justice, by the personal attendance of the informant before the justice.
What is a Telewarrant?
A warrant may also be issued without the personal attendance of the informant .. the informant may give an information to obtain to a justice by telephone or other means of telecommunication.
What are some procedural rules following search warrants?
the warrant must be in possession of the officer at the time of the search, a demand to open must be made before entering, the officer may use no more force than is reasonable necessary to effect any entry or search
What else can be searhed?
These search warrant provisions also apply to: wiretaps, blood samples, DNA samples, bodily impressions, tracking devices etc.
How can search warrants be quashed?
Search warrants may be reviewed before trial by way of an application for certiorari in a higher court, where they can quash the warrant
What is a consent search?
This is a type of warrantless search where the police have the power to search any place or any person on consent. The most important issues will always be whether the consent was voluntary & informed, if the person had authority to give consent..
What is a search incident to arrest?
This is where police can search the person and their immediate surroundings incident to arrest. IT MUST HAVE A PURPOSE RELATED TO THE ARREST. the purpose is the protection of the police and public or the discovery and preservation of evidence. Except in rare and exigent circumstances, STRIP SEARCHES MUST BE CONDUCTED IN POLICE STATIONS and by an officer with minimal force
what is the importance of R. v. Fearon?
The SCC ruled that upon arrest, police may search a cellphone without a warrant (4 conditions must be met)
Is “carding” allowed?
No. an officer cannot attempt to collect identifying information about an ind. if any part of the reason is that the officer perceives the ind. to be within a particular racialized group. The officer must also keep records of the attempted collection even if the ind. refuses.
What is the plain-view doctrine?
Common law doctrine that applies to searches w/o a warrant, allowing an officer t seize evidence that is found in plain view. 3 requirements
How about exigent circumstances?
The Code contains a power to conduct a search in the absence of a warrant “if the conditions for obtaining a warrant exist but by reason of EXIGENT CIRCUMSTANCES it would be impractical to obtain a warrant (someone is dying in a house called 911)(in order to ascertain the health and safety of a 911 caller)!!!! Can be hard to prove exigent circumstance was valid.
What are the rules about roadside testing?
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in his or her body and has operated a “conveyance” within 3 hours, a peace officer may demand the person provide breath and bodily samples (usually done at the police station). HOWEVER, if a peace officer has an “approved screening device” the officer msy demand that a person who is operating a vehicle IMMEDIATELY provide a breath sample. They do not need to have reasinable grounds, the purpose is to determine whether there are reasonable grounds to believe the driver has committed an offence
What happens if you refuse testing?
It is a criminal offence to refuse to comply with a valid demand w/o a reasonable excuse.
What is a production order?
A production order compels a third party who is not the accused to produce evidence and deliver it to the police. No one is excused from complying with this order. FAILURE TO COMPLY may attract a max. penalty of $250,000 or 6 months imprisonment
What are preservation demands and preservation orders?
Related to computer data. A peace officer is empowered to make a demand requiring a person to preserve computer data in a persons possession or control.. on an ex parte application
What are proceeds of crime?
an ordinary search warrant cannot seize intangibles such as bank accounts however … The Code defines “any property, benefit or advantage, within ir outside of Canada, obtained or derived directly or indirectly” as a result of the commission of a designated offence. Authorizes on app. by the Crown SEARCH AND SEIZURE of property that is believed on reason. grounds to be the proceeds of crime.
What does voluntariness mean?
For a statement to be admissible in court, The Crown must prove beyond a reasonable doubt that the statement was made voluntarily; the person freely decided to give the statement
What is detention?
A person is considered “detained” when his or her liberty interest is suspended by significant physical or psychological restraint.
what does it mean to be “psychologically detained”?
The courts will consider whether the person was legally compelled to stop and speak to police or where other conditions exist where a reasonable person would conclude by reason of state conduct that he or she has no choice but to comply. (nature of police, duration, level of sophistication of ind.). There is also detention based on racial profiling.
When can the police arrest a person w/0 a warrant?
- if they see a person actually committing a criminal offence
- a person who has committed an indictable offence or is about to commit an indictable offence
- Or any person who the officer reasonably believes is the subject of a warrant of arrest
BUT THE OFFICER SHALL NOT arrest someone committing a hybrid offence or summary
What is the proper conduct when arresting someone?
It is a duty of the officer to have the warrant on them or where feasible produce it upon request. Also has a duty provide the reason for arrest. They also have to be informed of their right to counsel WITHOUT DELAY. (this does not include a paralegal). The police must facilitate this right by providing a telephone and it must be in private. The police have no right to question the detainee until the requisite degree of privacy can be provided. The accused has to also be DILIGENT when exercising their right.
What is the right to silence?
a person who has been detained or arrested has the right to remain silent and should be so advised. On the other hand, there is no obligation on the police to cease questioning.
what is police “trickery”?
Anything an accused says to a fellow inmate may later be adduced in evidence by the Crown.
What does the “double-blind” approach” come from in identification line-up’s?
generally required. the conducting officer does not know what photos are in the group and what order they come, the witness is not told anything. Somebody ind. of the investigation prepares 12 photos of ppl who look similar and consistent with the description, placed in random order. RECORDED
What are the rules about fingerprints?
The police have the power to obtain fingerprints from anyone who is lawfully in custody. AND ARE AUTHORIZED TO USE FORCE AS IS NECESSARY to obtain ingerprints.
How about sobriety tests?
An officer may demand the performance of sobriety tests by anyone whom the officer reasonably suspects has alcohol or drugs in the person’s body and has operated a conveyance with 3 hours. THESE INITIAL SCREENING TESTS ARE INADMISSIBLE AT TRIAL. because they are to be distinguished from further testing that can take place
What about polygraph tests?
NO ONE CAN BE COMPELLED TO TAKE ONE. It is not productive for a person who is a suspect to take the test. More often the polygraph is a device to obtain a confession, by confronting the accused with a failed test the police may be able to obtain an admission from the accused.
What happens after being arrested?
An individual may be released by a police officer or held for a BAIL HEARING b4 a judge. Police have wide discretion to release an accused for most offences w/0 need for an appearancin court for bail hearing.
What is an appearance notice?
Where the police charge and arrest an accused, attendance can be compelled by an appearance notice, which is later confirmed by a justice, by a summons or an undertaking with conditions.
An appearance notice/summons will generally only be used in least serious offences where police DO NOT have concerns the accused will not show up in court, in indictable cases the appearance notice or summons will often require the accused to attend the police station in advance of first court appearance to do fingerprint and photos.
What is an undertaking?
Where the police charge and arrest an ind. w/0 a warrant and decide to release the accused attendance can be compelled with an undertaking with conditions. That is endorsed by a justice,. An undertaking is a promise made by an accused to the police to abide by certain conditions considered necessary for public safety and for monitoring the accused while on release. Inclusive of conditions that are appropriate. Some ex.s include; to report at certain time to police, to remain in a territorial jurisdiction, to abstain from communicating with certain ind.s, promise to pay secified amount to if they fail to comply. Police are required to release an accused unless there are reasonable grounds to believe the accused will fail to attend court or the detention is necessary in public interest.
What is judicial interim release (bail)?
s. 1 of the charter states that a person charged with an offence has the right not to be denied bail w/0 just cause & a person has a right to reasonable bail. BAIL SHOULD ONLY BE DENIED IN A NARROW SET OF CIRCUMSTANCES. Burden is on the prosecutor to show why they should be held in custody. Rules of evidence are more relaxed, hearsay is permitted. History of criminal record is allowed. Must provide reasons for decision
Are parelegals allowed to participate in bail hearings?
Yes, in summary conviction offences. Most often there is no need because offenders are usually released.
What is the “show cause hearing”
is less formal way of saying bail hearing, where the onus is on the prosecutor. Burden can switch to accused in violent assault cases on an intimate partner and where they have been convicted b4.
What is a “recognizance”?
A release order with financial obligations or with sureties is referred to as such.
What is a surety?
A surety is a person known to the accused (family member) who makes a solemn declaration that he or she will pay a specified sum of moneyto the Crown if the accused fails to abide by any conditions listed in the release order. They must make sure accused attends court, be of good character.
What happens if an accused person fails to comply with release conditions?
Bail may be revoked. BAIL REVOCATION. It is initiated with the arrest of the accused. The onus shifts to the accused to show cause why they should not be detained in custody.
What is a Judicial referral hearing?
Non-criminal offences hearings are here, or where an accused fails to comply with a summons, appearance notice the proseutor may seek a decision here. The justice can; take no action, cancel an order and substitute a diff, release order etc.
What is a detention review hearing?
In order to prevent an accused from being in custody for a LONG TIME and to ensure a prompt trial, there is an automatic review of an accused persons continued detention (where an accused is in per-trial custody)
What is notice of hearing?
As soon ad the request is made for bail hearing, the justice must set a date at the earliest convenience, and alert the prosecution and defence.
What is a release order?
Following the hearing, if the judge is not satisfied that the detention is necessary, the accused MUST BE RELEASED ON A RELEASE ORDER
What is disclosure?
When an accused is charged with an offence, they have a constitutional right to disclossure as part of the right to full answer and defence. AT AN EARLY STAGE
It is the Crown’s duty to disclose all relevant evidence to the defence, as part of the accused’s right to fair trial/ FULL AND TIMELY DISCLOSURE. Corwn has to err on the side of inclusion.
What is a benefit of timely disclosure?
early resolution, resolution of issues in advance of trial so that court time is used more effectively.
Where is disclosure usually discussed?
before a judicial pre-trial conference. At the pre-trial conference discuss ny issues that need to be resolved.
WHsat about privacy issues and disclosure?
The Crown will screen disclosure to ensure that any personal identifiers or privileged information is redacted.
What to do with a privilege issue and disclosure?
The Crown is obligated to advise the defence of the Crowns decision ro withhold or delay disclosure pursuant to a privilege claim.
What is first-party disclosure regime?
The Crown has a duty to disclose all relevant, non-privileged information in its possession or control.
What are third-party records regime of disclosure?
Materials that are in possession of the police or another government agency (doctors office, rape crisis centre, social agencies, police reports non-related to the case)that were not created in the course of .. or related to the investigation are not in the possession of the Crown
Disclosure of these materials fall under the third party records regime of disclosure. Applications must be brought by defence to have access to these
What is two-stage procedure?
A trial judge goes through a two-stage procedure to determine whether to grant a third-party record application.
Stage 1 - likely relevaance
stage 2- balancing
What about police misconduct?
Police misconduct records however serious that relate to the subject matter of the offence must be disclosed as part of the initial disclosure package.
Does the defence have to reciprocate disclosure to the Crown.
No. However the Code requires advance notice of a party’s intention to call an expert witness to the judge and the Crown. Where appropriate the defence should disclose if they wish to have a charge withdrawn, or give notice if a paralegal is seeking relief under the Charter.
Who can be a witness in a criminal proceeding?
In order to be a witness a person must be COMPETENT to testify. They also have to be compellable.
Can the accused be a witness?
The accused is competent to testify in their own defence BUT is neither COMPETENT OR COMPELLABLE AS A WITNESS FOR THE CROWN. prote ction afforded by the Charter.
How about co-accused witnesses?
They are allowed, in joint and seperate trials.
How about a spouse as a witness?
The spouse of the accused is a competent witness, but they cannot be forced to give evidence that would reveal communications made during the marriage.
What age do you have to be to become a witness?
14 years of age. Are presumed to have mental capacity to testify.
