Criminal Procedure Flashcards
Investigation and pressing charges
Most investigations start with a complaint from member of the public, but police sometimes are proactive
Police generally decide whether to lay charges based on reasonable suspicion that the suspect has committed an offense –> wishes of the victim are considered but not determinative
Prosecution
Crown attorneys
Responsibility of prosecution rests on crown attorneys
Crown attorneys = quasi judicial officers, task is to achieve justice not to obtain a conviction
Crown attorneys only prosecute cases that are in the public interest and for which there is a reasonable prospect of conviction
The prosecution must disclose the case to the accused before the trial
Defense
Protects interest of the client, assumes almost purely adversarial role towards the prosecution
Have no duty to disclose the defense case to the prosecution in advance
3 types of offenses and their trial options
Indictable offense = more serious
- accused has option of judge alone or judge and jury, sometimes has right to preliminary inquiry
Summary conviction = most minor, usually nuisances
- maximum 2 year sentence
- tried by judge alone in Ontario court
Hybrid offense = prosecution chooses whether to proceed by indictment or summary conviction
S.8 and S.9 of charter
S.8: everyone has the right to be secure against unreasonable search and seizure
S.9: everyone has the right not to be arbitrarily detained or imprisoned
Arbitrary detention
Detention = assuming control over the movement of a person physically or psychologically, usually because police have grounds to arrest the person
Occurs lawfully all the time in impaired driving checks (courts have ruled that this is reasonable infringement on s.9)
Police have power to detain people for investigative purposes when detention is not arbitrary, but is also not authorized by powers of arrest –> when there is SOME evidence of an offense
R. v. Mann 2004
Case relating to arbitrary detention
Mann was stopped and searched by police officers because he matched description of suspect from break and enter report nearby
Found marijuana on Mann, arrested and cautioned him for possession
Detention of Mann was lawful, but search of Mann beyond a pat down (i.e. reaching into his pocket) was unlawful
Investigative detention (2 conditions as to when this is lawful
Police have reasonable suspicion that person is connected to a particular crime (there must be clear indicator, cannot be based on instinct or past experience)
Detention is reasonably necessary in the circumstances –> detention should be brief and shouldn’t become de facto arrest
When and how investigative searches during detention should be conducted
When: officers must reasonably believe that their own or others’ safety is at risk
Search must be confined to an intrusion reasonably designed to locate weapons, not to find evidence of a crime
Process of search and seizure
Designated purpose of search and seizure (Cloutier)
If police find things of interest when searching premise/person in investigation, they may seize it for us in prosecution
Must balance state interest of finding evidence with individual interest of privacy and liberty
Ideally, warrant should be obtained beforehand
Police have power to search a lawfully arrested person and to seize anything in their possession or surroundings to guarantee the safety of the police and the accused, prevent the accused’s escape, or provide evidence against the accused
Purpose of a warrant
When warrant may be issued
When warrant is required
Hunter et al v. Southam 1984: purpose of warrant is to balance conflicting interests of the state and the individual, requires the state to demonstrate beforehand the superiority of its interests to carry out the search over the individual’s interest in privacy
Warrants are issued by judicial officers on reasonable grounds (credibility based probability, not mere suspicion) that an offence has occurred and evidence of the offence will be found at the location sought to be searched
Warrant is only required when police conduct will invade a person’s reasonable expectation of privacy (e.g. searching public records or common areas doesn’t require warrant)
Conditions required for search incident to arrest to be lawful (2)
Valid objectives for a search (3)
Justification for the search to make it lawful
Officer has a reasonable basis for the search
Arrest that search is incident to must be lawful
Search must be for valid criminal justice objective
- discovery of item that may threaten safety of police/accused/public
- discovery of item that may facilitate escape
- discovery of evidence of the offence for which accused is being arrested, or prevention of its destruction
Justification is that there is a reasonable prospect of securing evidence of the offence for which the accused is arrested
R. v. Caslake 1998
Case relating to search incident to arrest
If the RCMP officer searched the impounded vehicle because he was looking for evidence relating to the drug charges, the warrantless search would have been lawful
However, because the officer only conducted the search due to RCMP policy (purpose is to inventory the car contents) the search was not ‘truly incidental’ to arrest and is thus unlawful
S.10b of charter
Guarantees the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right
Imposes both informational as well as implementational duties upon the police
Purpose and actions of the counsel
Counsel acts as a buffer between the individual and the more powerful state
Counsel can advise as to the individual’s rights and obligations, how they should exercise those rights, and how the individual might be able to regain liberty
