FED LAW Flashcards
What is Law?
a series of rules that govern societies
Types of Law
- Common Law
- Statute Law
- Case Law
What is Common Law?
early or traditional law (search incident to arrest)
What is Statute Law?
written law enacted by government (C.C, HTA)
Case Law
law based on previous court decisions (R v. Feeney)
What is Procedural Law?
instruction manual for police; outlines how law is to be enforced and administered
Substantive Law
instruction manual for citizens; consists the rights and duties of each person
Classification of Offences
Indictable, Summary Conviction or Dual Procedure
What are Summary Conviction Offences?
Less serious offences, Ontario Court of Justice, provincial jail
What are Hybrid/ Dual Procedure Offences?
Tried by either Summary conviction or Indictable, elected by Crown, treated as Indictable until elected
What are indictable offences?
More serious offence, Prelim before trial in Superior Court, pen time (federal jail)
FACTS-IN-ISSUE of an offence
Things to prove beyond a reasonable doubt: (T.I.P.P)
T - Time and date of offence
I - Identify of accused
P - Place/location of offence
P - Plus elements of the offence; found specifically in each section
Elements for a criminal offences and what do they mean?
Mens Rea – Intent, guilty mind
Actus Reus – Guilty Act
Need both to prove a criminal offence
Commencing of charges
An Information (Form 2): a formal legal document that is sworn before a justice that commences charges
Names the accused(s) and charge(s) against them
* Anyone can swear on an information
Criminal Offence
a breach of any federal law
Finds Committing
seeing the person actually commit the offence (caught in the act) OR seeing the person actually commit the offence and pursuing immediately and continuously until that person is arrested
Reasonable Grounds
a set of facts or circumstances, which would satisfy an ordinary, cautious and prudent person that there is reason to believe and goes beyond mere suspicion
Arrest
(a) an arrest is accomplished when you take or get physical control of a person with intent to detain
(b) a person who acquiesces and accompanies a peace officer, with the understanding or belief that their liberty has been taken away
Accused
includes a person to whom a peace officer has issued an appearance notice and a person arrested for a criminal offence (s. 493 C.C)
What is a charge?
laid when an information is sworn before a justice and a prosecution is initiated. (A person can be charged but not arrest)
Arrest vs Charge
a police officer may arrest a person for committing a criminal offence, but not charge, and vice versa, may charge a person for committing a criminal offence where that person has not been arrested
Investigative Detention
the brief detention of an individual by a police officer for investigative purposes
Summons
(Form 6) A document that compels a person to court; requires person to appear in court and answer a charge
What to do when attending an incident
R - Recognize
C - Classify
A - Authority
Detention
A restraint of liberty other than arrest
Why should you arrest
P - prevent continuation of offence
I - Investigate further
C - ensure Court attendance
Subpoena
directs a person, usually witness, to give evidence and bring anything in relation to the matter in court
Justified
protected from criminal and civil liability
Execution of Duty
Lawfully performing an identifiable and specific or special duty authorized by statute or common law
s. 494 (1) C.C – ARREST WITHOUT WARRANT BY ANY PERSON Any one may arrest without warrant,
(a) a person whom he FINDS COMMITTING an INDICTABLE OFFENCE;
(b) a person who, on REASONABLE GROUNDS, who believes
(i) has committed a CRIMINAL OFFENCE; AND
(ii) is escaping and freshly pursued by persons who have lawful authority to arrest that person
s. 494 (2) C.C – ARREST BY OWNER, ETC, OF PROPERTY
The owner OR a person in lawful possession of property, OR a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they FIND them COMMITTING a CRIMINAL OFFENCE on or in relation to that property; AND
(a) they make the arrest at that time; OR
(b) they make the arrest within a reasonable time after the offence is committed and they believe on REASONABLE GROUNDS that it is not feasible in the circumstance for a peace officer to make the arrest
s. 494 (3) C.C – DELIVERY TO PEACE OFFICER
Any one other than a peace officer who arrest a person without warrant SHALL FORTHWITH deliver the person to a peace officer
s. 495 (1) – ARREST WITHOUT WARRANT BY PEACE OFFICER
(a) a person who has committed (present) an INDICTABLE OFFENCE OR who, on REASONABLE GROUNDS, he believes has committed (past) OR is about to commit (future)an INDICTABLE OFFENCE;
(b) a person whom he FINDS COMMITTING a CRIMINAL OFFENCE; OR
(c) a person in respect of whom he believes has REASONABLE GROUNDS to believe that a WARRANT OF ARREST OR COMMITTAL, in any form set out in Part XXVIII in relation thereto, IS IN FORCE within the TERRITORIAL JURISDICTION in which the person is found
s. 31 C.C – ARREST FOR BREACH OF PEACE
(FINDS COMMITTING)
Police officer witnesses breach of the peace OR
REASONABLE GROUNDS a person is about to join in or renew
breach of peace
* Whenever harm is actually or likely to be done to a person or his/her property, or a person is in fear of being harmed through an assault, affray, or riot
* Think of health, safety, people, property
* Only procedural, no charge
Steps to a Proper Arrest
- Identify yourself as a police officer
- Tell the person he is under arrest (judge’s rule)
- Tell the person the reason for the arrest (s. 10(a) Charter and s.29(2) C.C.)
- Take physical control
- Inform him of his Rights to Counsel (s.10(b) of Charter)
- Ensure he understands the reason for the arrest and his Right to Counsel Then;
Read the Caution (voluntariness)
Read Secondary Caution if applicable (minor inducements)
*** Cautions are NOT a part of 6 steps, “Judge’s Rule”
PROSPER WARNING
- Ensures the detainee wanting to waive the right to counsel UNDERSTANDS what they are actually giving up. (need not arbitrarily give up their RTC because they become frustrated, cannot afford a lawyer or cannot locate the lawyer of their choice)
- The accused party needs to know they do have reasonable opportunity to speak to any lawyer of their choice.
What are the limitations to arrest?
(a) 553 indictables (202, 203, 4(4)(a)
(b) Dual procedure offences
(c) Summary conviction
In cases where,
(d) On REASONABLE GROUNDS that PRICE is satisfied
*arrest for straight indictables
What is PRICE?
P - Public Interest (protection of the community, protection of the victim and accused, protection of property, and prevent breach of peace)
R - repetition
I - identity
C - court
E - evidence
s. 496 C.C Appearance Notice for Judicial Referral Hearing
-Reasonable Grounds
-Failed to comply with Summons, Appearance Notice, Undertaking, Release Order or
-Failed to attend court as required
-Did not cause a victim physical/emotional harm/property damage/economic loss
-May without laying a charge
-Issue an appearance notice for a judicial referral hearing under s.523.1C.C.
s. 523.1 C.C. Judicial referral hearing
-Consider all other options before referring to a Judicial Referral Hearing
-Exercise discretion when investigating failures to comply and to appear
Consider:
Not laying a charge
Laying a criminal charge
If you decide to refer the matter for a Judicial Referral Hearing issue an appearance notice
*not recommended by government
s. 29 (2) C.C – NOTICE UPON ARREST
The duty of everyone who arrests a person, with or without warrant, to give notice when;
the process or warrant under the arrest is made; or
the reason for the arrest
S. 25 C.C – PROTECTION OF PERSONS ACTING IN AUTHORITY
Everyone required or authorized by law
To do anything in the administration or enforcement of law
If acted on reasonable grounds is justified in using as much force as necessary for that purpose
S. 25(2) - Use of force
relating to persons acting in good faith, executing a process or carrying out a sentence notwithstanding if it is defective or issued without jurisdiction
S. 25(3) not protected when
relating to not being justified using force that causes grievous bodily harm (GBH) or death UNLESS on reasonable grounds is necessary to protect self or others from such
s. 25(4) - when protected
relating to peace officer and anyone assisting may use force intended to cause death or GBH to person being arrested if necessary to protect anyone from imminent or future death or GBH and flight cannot be prevented by less violent manner
S. 25(5) - Power in case of escape from penitentiary
Peace officer, same as above in relation to persons who escapes a penitentiary and poses a threat of death or GBH
S. 26 - Excessive force
Everyone authorized by law to use force is criminally responsible for any excess thereof
S. 11 CA
person charged with an offence has the right;
To be informed without unreasonable delay of the specific offence
Be tried within a reasonable time
Not to be compelled to be a witness in proceedings against that person in respect to the offence
Presumed innocent until proven guilty Not be denied reasonable bail
S. 7 CA
right to life, liberty and security and not to be deprived of
S. 8 CA
secured against unreasonable search or seizure
S. 9 CA
right not to be arbitrarily detained or imprisoned
S. 10 CA
right on arrest or detention;
(a) Informed promptly of the reason
(b) Retain and instruct counsel without delay and be informed of that right AND
(c) Have the validity of the detention determined by way of habeas corpus and be released if detention is not lawful
S. 24 CA
(1) anyone may apply to court of competent jurisdiction if rights have been infringed or denied
(2) evidence obtained in a manner that infringed or denied rights, shall be excluded, having regard to all the circumstances, the admission of it would bring the adm inistration of justice into disrepute
498 (1.1) shall not release if _____ not met
Public Interest
Repetition or continuance
Identity
Court
Evidence
Safety and Security of Victim/Witness
Release from custody-arrest without warrant C.C.498(1)
a person not taken before a justice, a peace officer shall, as soon as practicable, release the person, if
a) The peace officer intends to compel the person’s appearance by way of summons;
b) The peace officer issues an appearance notice to the person; or
c) The person gives an undertaking to the peace officer
Appearance notice Form 9
If a peace officer does not arrest due to the limitations in s. 495(2) (PRICE) then and appearance notice may be issued for:
a) An indictable offence mentioned in 553
b) A dual procedure offence
c) A summary conviction offence
Criminal Summons
S.498(1) and s 498 (1.1) C.C. states that a Peace Officer who arrest a person may compel their appearance to court by way of a criminal summons once PRICES has been satisfied
-A criminal summons may also be issued to a person where there exists no authority to arrest w/o warrant i.e. Peace Officer did not find committing a summary conviction offence.
-Criminal summons may also be issued after an investigation is complete and no reason for an arrest exists.
Undertaking Form 10
-Peace Officer
-Where person has been taken into custody
-498(1.1) is satisfied (PRICES)
-release on an undertaking (Form 10)
Undertaking additional conditions
Promise to pay an amount specified in undertaking-not more than $500- if they fail to comply- with any condition of the undertaking
-Deposit with peace officer specified in undertaking
-Money/valuable security
-Value not to exceed $500
-If at time of undertaking- accused not ordinarily a resident in the Province
OR
-Does not ordinarily reside within 200km of the place in which they are in custody
there are more listed on the undertaking available
Bail Hearing
When accused is not released, then accused is taken before a Justice to determine suitability for release
Judicial Referral Hearing
Appearance notice for Judicial Referral Hearing
- Reasonable grounds
- Failed to comply with Summons, Appearance Notice, Undertaking, Release order OR
- Failed to attend court as required
- Did not cause victim any harm
- THIS IS NOT AVAILABLE FOR BREACHES OF PROBATION
Show cause hearing
The Crown Prosecutor must show why the accused should be held in custody on primary, secondary or tertiary grounds
Reverse Onus
The accused must show why he should be released
Warrant in the 1st instance
police swears on An Information to arrest for a charge
Bench warrant
Judge issues a warrant of the accused failing to appear for court
Committal Warrant
to bring an accused to detention centre when sentence was given
Material Witness Warrant
issued to compel a witness to give evidence in court (after subpoena is already issued) ***allows for an arrest
Executed
Warrant deemed executed when accused is before the court (paper and body meet)
s. 265 (1) C.C – DEFINITION OF ASSAULT
Person commits assault when:
Without consent, applies force intentionally, directly or indirectly
Attempts or threatens, by ACT OR GESTURE to apply force, person to believe on reasonable grounds has the PRESENT ABILITY TO EFFECT
Wearing or carrying a weapon or imitation thereof, accosts, impedes or begs
S. 265(3) - Consent is not obtained if…
A) Application of force to the complaining or to a person other than the complaining
B) Threats or fear of the application of force to the complainant or to a person other than the complainant
C) Fraud
D) The exercise of authority
s. 267 C.C – ASSAULT CAUSE BODILY HARM/WITH A WEAPON
level 2, dual procedure
Carries and uses or threatens to use weapon or imitation OR
Causes bodily harm to the complainant OR
Chokes, suffocates or strangles the complainant
***Bodily Harm: more than trifling or merely transient (s. 2)
S. 268 C.C. - AGGRAVATED ASSAULT
level 3, indictable
Wounds, maims, disfigures or endangers life
**Maims: loss of ability to fight back
**Wounds: stab
S 266 C.C. - Assault
Level 1, dual procedure
the charge for assault definition 265
s. 270(1) C.C ASSAULT PEACE OFFICER
Assault a public officer or peace officer engaged in the execution of his duty or a person in aid of officer
s. 270.01(1) C.C ASSAULTING PEACE OFFICER WITH WEAPON OR CAUSE BODILY HARM
same as regualr but an officer in the execution of their duties
s. 270.02(1) C.C AGGRAVATED ASSAULT OF PEACE OFFICER
Wounds, maims, disfigures or endangers life of peace officer
**Maims: loss of ability to fight back
**Wounds: stab
s. 270.1(1) C.C DISARMING A PEACE OFFICER
Without consent of P.O Takes or attempts to take A weapon
In possession of the P.O when engaged in the execution of his duty
Voyeurism s.162 C.C.
Surreptitiously observes-including by mechanical or electronic means
OR
Makes a visual recording of a person
Who is in circumstances that give rise to a reasonable expectation of privacy, if
a) person is in a place they would reasonable expect to be nude
b) a person is nude or engaging in sexual activity and the recording/ observing that person in that state
c) observation/ recording is done for sexual purposes
177 C.C. Trespass at night
o Without lawful excuse
o Loiters or prowls
o At night on the property of another
o Near a dwelling house
summary conviction - needs to F/C
Mischief
Willfully,
Destroys or damages property
Renders property dangerous, useless, inoperative or ineffective Obstructs, interrupts or interferes with the lawful use or enjoyment
of property; OR
Obstructs, interrupts or interferes with any person in the lawful use or enjoyment or operation of property
dual procedure
175 C.C. Cause Disturbance
(a) Every one who NOT BEING in a dwelling house causes a disturbance in or near a public place by;
(i) fighting, screaming, shouting, swearing, singing, using insulting or obscene language
(ii) by being drunk
(iii) by impeding or molesting
(b) openly exposes or incident in public place
(c) loiters and obstructs in a public place
(d) discharging f.a. or by disorderly conduct in a public place or not being an occupant and disturbing an occupant
s. 264.1 C.C – THREATENING (UTTERING THREATS)
Everyone who In any manner
Knowingly utters, conveys or causes any person to receive threat To cause death or bodily harm
Burn, destroy or damage property OR
Kill, poison or injure an animal or bird that is property
s. 264(1) - Criminal Harassment
o No person shall
o Without lawful authority
o Knowing that another person harassed or recklessly
o Engaged in conduct referred in (2)
o Causing person reasonably
o To fear for their safety or anyone known to them
Criminal harassment conduct
(a) repeatedly follow
(b) repeatedly communicate
(c) besetting or watching
(d) engaging in threatening conduct
S. 162(1) C.C. - Publication of Intimate Images without Consent
knowingly,
- pusblishes, distributes, transmits, sells, makes available, advertises
- an intimate image knowing/ being reckless that the person in the image
- did not consent
Intimate image
- taken when the person is nude or exposing themselves, or engaged in explicit sexual activity
- private circumstances in which the recording was taken
- and still expected to be private at the time the offence was committes
Reckless
an indifference to the consequences of your actions or of your admissions
What is Wilful Blindness
Deliberate failure to make reasonable inquiry of wrongdoing despite suspicion or an awareness of the high probability of its existence
What is a weapon?
almost anything, designed or used or intended use in causing death, injury or to threaten/ intimidate
What are the three elements of a firearm?
- barreled weapon
- shot, bullet, or projectile can be discharged
- Capable of causing SBH or death
What must you know about a firearm for court?
- type of firearm
- Action of the firearm
- Type of ammunition
What are the three classifications of firearms?
- restricted (allowed to have with restrictions)
- non-restricted (allowed to have without restrictions)
- prohibited (not allowed to have)
What is an automatic firearm?
a firearm capable of discharging projectiles in rapid succession during one press of the trigger
What is a semi-automatic firearm?
A firearm that after fired, automatically reloads to prepare for the next shot
What is a CFO and that is their role?
- Chief Firearms Office
- Issues, refuses to issue, renews or revokes firearms licences - Approves shooting ranges.
- Approves the transfer of prohibited and restricted firearms and other regulated items between individuals and businesses.
When might some one not be eligible to obtain a firearms licence?
if it is not desirable, in the interests of public safety
○ Has convictions relating to firearm offences
○ Criminal harassment convictions
○ Offences relating to drug trafficking
○ Mental instability
○ Court orders prohibiting possession
What are exemptions of firearms for the purpose of licencing and registration offences?
- most bb guns or pellet guns (lower velocity)
- signalling devices, distress, blank-firing, industrial use
- antique firearms
How can you transport a non-restricted firearm?
- unloaded
- and if unattended, in the truck if equipped or out of view
How can you transport a restricted or prohibited firearm?
- unloaded
- rendered inorperable by locking device
- in a locked secure container
What is authorization to transport?
Must have a valid “Authorization to Transport” to transport ANY Restricted or Prohibited Firearm for:
- Target Practice
- Changing Residences
- Registration and/or repair Gun shows
- Transportation to any Border
What is a replica firearm?
Means any device designed exactly resemble or to resemble with near precision, a firearm and that itself is not a firearm,
but does not include such device that resemble an antique firearm.
What is an imitation firearm?
Means any thing that imitates a firearm and includes a replica firearm (dummy gun/airsoft)
How do you store a non-restricted firearm?
Unloaded,
Rendered inoperable by:
Locking device, or
Removal of bolt or bolt carrier, or
Stored in a locked container or room that cannot be readily broken into
How do you store a restricted or prohibited firearm?
Unloaded, AND
Rendered inoperable by secure locking device, AND
Stored in a container or room that cannot be readily broken into
No ammunition in same container
Police are not exempt; must store it properly
OR: Stored in a vault, safe or room that has been specifically constructed or modified for storage purposes AND that is kept securely locked
What are the type of firearms action?
Bolt, Break, Lever, Pump, Semi-Auto, Automatic, Revolver
Firearm Possession Offence
Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence
Firearm Seizures
- public safety seizure
- evidentiary seizure
- document seizure
What are document seizures for firearms?
when someone doesn’t have the appropriate documents - 14 days to produce documents, and then returned
- documents required: application for disposition or report to justice
What does FIP mean?
F - Firearm
I - Interest
P - Police
What is 117.02(1)?
can search without warrant any person, vehicle, place (not dwelling) if RG believe firearm, offence being or has committed, evidence likely where search is conducted
What is a search?
to look into or over carefully of thoroughly in an effort to find or discover something
What type of law will justify a search?
STATUTE LAW – C.C., CDSA, LLA, HTA, CANNABIS CONTROL ACT (warrants, plain view doctrine)
COMMON LAW – incident to arrest, plain view doctrine
CASE LAW – consent search
What is a reasonable expectation of privacy?
R. V. Edwards - seven step test
Presence at time of search
Possession or control of property or place searched Ownership of property
Historical use of property
Ability to regulate access, including right to admit or exclude others Existence of subjective expectation of privacy AND
Objective reasonableness of expectation
What is the remedy of violation of Charter rights or S. 7,8,9, or 10?
s. 24(2) evidence shall be excluded if the court concludes rights were violated and the admission of the evidence would bring the admin of justice into disrepute
What is the reasonableness of search?
R. V. Collins
o Is the search authorized by law?
o Is the law itself reasonable?
o Was the manner in which the search was carried out reasonable?
What makes a search incident to arrest lawful?
- Arrest must be lawful
- search must have been conducted as an incident to a lawful arrest
- manner in which the search was conducted must be reasonable
need to articulate bteween the nature of the search and the offence, search before they speak to a lawyer
What are you allowed to search for incident to arrest?
- safety - weapons injury
- evidence - of the offence
- escape - means of escape
When can you do a strip search?
- Exigent circumstances
- Reasonable grounds
- Availability of procedure to obtain a search warrant
- Rights to counsel
When can you search an electronic device?
can’t search all cell phones incident to all arrests
arrest must be lawful, SITA (preserving/ locating evidence), can only look at that evidence
SITA - residence?
if a person is arrested in a residence, police can also search the surrounding ares (only within a person’s physical control) for safety, escape or evidence
SITA - motor vehicles?
- Can search vehicle if flowed directly from lawful arrest
- Can check trunk if reasonably believes more evidence is likely found there
What is the waterfield test?
- Does the conduct of the police fall within the general scope of any duty imposed by statute or recognized common law?
- Does any conduct, if found to be within the general scope of such a duty, involve the justified use of powers associated with the duty?
What are the 6 steps for a consent search? (R v. WILLS)
- was consent, expressed or implied
- authority to give the consent
- voluntary
- aware of his or her right to refuse
- aware of the nature of the police conduct to which he or she was being asked to consent to
- aware of the potential consequences of the consent (jeopardy)
What are steps 7-11 of consent search? (R.v. Borden)
- aware they don’t need to consent
- aware evidence can be used against them
- aware their right can be withdrawn at anytime
- limited use of consent, DNA destruction/ retention orders
- consent and detention 10b
What is abandonment for seizure?
- evidence not considered abandoned while in custody or in a hospital
- evidence while not in custody that was discarded can be seized (but can’t still be on their property)
What is plain view Doctrine - S.489(2)
- Must be lawfully present – by warrant or otherwise
- The discovery was inadvertent
- Articles discovered were clearly incriminating
What is implied licence to knock?
anyone, including police, have implied invitation to knock on front door of dwelling for purposes of communicating information; NOT to gather evidence
Police must leave property if directed UNLESS reasonable grounds for lawful arrest arose before occupant gave notice to leave
Exigent circumstances to enter a dwelling house - 529(1)
May enter a dwelling without a warrant to arrest or apprehend if
- Reasonable Grounds
- Person is present in the dwelling house
- Warrant is not practical due to exigent circumstances
Exigent circumstances to enter a dwelling house - 529(2)
Exigent circumstances include circumstances in which the peace officer has:
- Reasonable grounds to suspect entry necessary to prevent imminent bodily harm or death to another person
- Reasonable grounds to believe that evidence related to commission of an indictable offence is present in the dwelling house and entry necessary to prevent the imminent loss or imminent destruction of evidence
Once arrested - discontinue search
Exigent Circumstances Common Law
The duty to protect life justifies a warrantless forced entry into an apartment in response to a disconnected 911 call even though the person who answered the door refuses entry. R. v. GODOY
When can you search a Motor Vehicle?
inventory search to cataloguing valuables
What is fresh/ hot pursuit?
- Continuous pursuit conducted with reasonable diligence, so that pursuit and capture, along with the commission of the offence, may be considered part of a single transaction
- Ends when accused is no longer is escaping and no longer freshly pursued
What are the 2 Powers to enter Dwelling Houses and what are they?
AKA Feeney Warrants
1. Arrest Warrant with authorization to enter a dwelling house (Section 529), no warrant but have RG to believe the person is there, and give power to the officer to enter house for purpose of arrest
2. Entry Warrant (Section 529.1), RG to believe warrant already exists for arrest, need RG to believe person will be there
When can you omit announcement before entry?
Judge or justice may authorize police to enter without prior announcement if there are reasonable grounds to believe that prior announcement would:
- Expose police/other person to imminent bodily harm or death or
- Result in imminent loss or imminent destruction of evidence
can do with without authorization if exigent circumstances.
What is a sexual assault?
- An assault – rest defined by case law
- Circumstance of a Sexual nature
- Violation of Victim’s Sexual Integrity – does not have to be an intent of sexual purpose but touch anything in the sexual region
- General Intent offence – does not have to be for a sexual purpose
What is the Actus Reus of Unwanted Sexual Touching?
3 elements to prove (VSA):
- Voluntary touching occurred (objective)
- Sexual nature of the touching (objective)
- Absent consent (subjective)
Level 1 Sexual Assault S.271
Includes:
○ Grabbing
○ Groping
○ Touching
○ Brushing against
○ Tearing clothes
○ Penetration
Must consider:
- The part of the body touched
- The nature of the contact
- The situation in which the contact occurred
- Words and gestures surrounding the contact
Level 2 Sexual Assault S. 272
- Carries, uses or threatens to use a weapon or imitation
- Bodily harm to complainant
- Threatens bodily harm to a third person
- Chokes, suffocates or strangles the complainant
- Party to the offence
What does party to the offence mean?
- 2 or more persons
- Commit
- Aids a person to commit
- Abets a person in committing
- Common intention to commit
What is level 3 sexual assault?
- Wounds
- Maims
- Disfigures
- Endangers Life
What is age of consent? and when did it change?
16 and May 1, 2008
When is no consent obtain (taken from assault)
- fraud
- exercise of authority
- fear or threaten
- use of force
No consent is obtain when? (6 ways)
- some one else consents
- unconscious
- incapable other than unconscious (alcohol, drugs)
- induced by a person of trust or authority
- refused consent
- withdraws consent
No defence of mistaken belief in consent
- self induced intox
- recklessness or wilful blindness
- any other circumstance with no consent
Party must take reasonable steps to ascertain that complainant was consenting
Where does consent not come from?
- silence
- passivity
- ambiguous conduct
- cannot test waters once consent withdrawn
What is sexual inference? S. 151
Every person
- For a sexual purpose
- Touches directly or indirectly
- With a part of the body or an object
- Any part of the body of a person under 16
What is invitation to sexual touching? S. 152
- Every person
- For a sexual purpose
- Invites, counsels or incites
- Person under 16 years
- To touch directly or indirectly
- With a part of the body or an object
- The body of any person
What is the exemption for S. 151 and 152?
a 12 or 13 y.o. can’t be tried for these offences, unless:
- in a position of trust or authority
- relationship of dependency
- relationship is exploitive
What is sexual Exploitation? S. 153(1)
- Person in a position of trust or authority towards a young person
- Relationship of dependency with a young person
- Relationship is exploitative of the young person
Young person is 16 - under 18 y.o.
- same facts in issue for 151 and 152
No denfense of consent for sexual offences with a child/ young person
a person under 16 cannot consent,
except for close in age and mistake of age
however, no defense for someone under 12 ever
What is the close in age exemption for 12 or 13?
- There is consent
- There is less than 2 years age difference and
- Not in a position of trust or authority, not a relationship of dependency, not exploitative
What is the close in age exemption for 14 to 15 year olds?
- There is consent
- There is less than 5 years age difference and
- Not in a position of trust or authority, not a relationship of dependency, not exploitative
What is mistake of age?
Accused can use this defence if they took all reasonable steps to determine the age of the complainant
What is an indecent Act? s.173(1)
Everyone who wilfully does an indecent act
- In a public place, presence of 1 or more persons
- In any place intent to insult or offend
Dual Procedure
What is indecent exposure? s. 173(2)
Any person
- For a sexual purpose
- Exposes his/her genitals
To a person under 16 years
What is luring? S. 172.1
- by means of telecommunications communicates with some one known or believed to be under 18, 16, or 14
- just have to facilitate
- unless the person took all reasonable steps to believe someone is of that age
What is making sexually explicit material available to a child? s. 171.1
- Every person commits an offence who:
○ Transmits
○ Makes Available
○ Distributes
○ Sells
○ Sexually explicit material - To a person under one of the specified ages (18, 16 or 14 years) for the purpose of facilitating a specified sexual offence or abduction offence
What is sexually explicit material?
- visual material
- written material
- audio recording
of sexual content, sexual purpose
what is Trauma informed response?
- The initial response a victim receives has serious implications on the victim’s long term outcome and the investigation
- can be re-traumatized
What is theft? S. 322
everyone who
- takes
- converts
- with intent
- fruadulently or without colour of right
- deprive, temp or absolutely the owner of it (or someione with special interest) of the thing or property
can be over $5000 or under $5000
What is colour of right?
an honest belief in a set of facts or circumstances that if they actually exist constitute legal justification or excuse
When is theft complete?
- moves it, causes it to move or be moves or begins to cause it to become moveable
shoplift exception: need to walk past cash register without paying and then prove they didn’t forget to pay
What is theft of a motor vehicle? s. 333.1
some one who steals a M/V
What is take M/V without consent?
- Everyone
- Without consent of owner
- Takes a motor vehicle/vessel
- Intent to drive/use/navigate/operate or
- cause it to be driven/used/navigated/operated or
- Is an occupant knowing it was taken without consent
SC must F/C
What is the exception for an occupant of take MV without consent?
- if they weren’t aware and attempt to leave when feasible
What is fraud?
Every one who, by
- deceit, falsehood or other fraudulent means,
- whether or not it is a false pretence within the meaning of this Act,
- defrauds the public or any person, whether ascertained or not,
of any property, money or valuable security or any service,
What is Robbery? S. 343
Robbery with theft with violence, either:
- uses violence to prevent or overcome resistance of the stealing
- uses violence at the time or immediately before or after
- assaults a person with the intent to steal
- steals while armed with an offensive weapon
indictable offence
What is Break and Enter? S. 348
break and enters a place with intent to commit an indictable offence or commits and offence or breaks out after
What is the presumption to a break and Enter?
in absence of evidence, if someone b/E proof that they did it
Punishment of a B/E
indictable if in relation to a dwelling house, or dual if place other than a dwelling house
For the purpose of B/E what is a place?
dwelling house, building other than a dwelling house, railway vehicle, boat, aircraft, trailer, animal enclosure
- Does not include a car
What is unlawfully in a dwelling house? s. 349
- Every person without lawful excuse
- Enters or is in a dwelling house
- With intent to commit an indictable offence
- without lawful excuse or evidence to the contratray if proof that they entered
What constitutes entrance?
when any part of their body or instrument is within anything being entered
or
entered by threat or artifice or collusion
or without lawful justification
permanent or temp entrance
What is break and entering to steal firearm? s. 98
Every person commits an offence who
A. breaks and enters a place with intent to steal a firearm located in it;
B. breaks and enters a place and steals a firearm located in it;
- OR
C. breaks out of a place after
a. stealing a firearm located in it, or
b. entering the place with intent to steal a firearm located in it.
What is possession of break-in instruments?
- without lawful excuse
- has in his possession
- any intrument suitable for the purpose of breaking into any place
- under circumstance that give rise to a reasonable inference
- that it was intended or was used for any such purpose
What is possession of property obtained by crime? s. 354
- Everyone commits an offence who has
-in his possession any property or thing or any proceeds of any property or thing knowing that - all or part of the property or thing or the proceeds was obtained by or derived directly or indirectly from an indictable offence
what are the key elements for possession?
knowledge consent and control
What is joint possession?
there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession
What is constructive possession?
an accused does not have physical custody of the thing but has it in any place for their own or another’s use or benefit.
What are the elements of obstruct police? s. 129
- willfully
- obstructs
- lawfully execution of their duty
What is obstruct justice? s. 139
- threaten a person from giving evidence
- influences/ corrupts a juror
- accepts bribes to abstained from giving evidence or refrain from doing anything as a juror
What is personation? s. 130
Everyone commits an offence who
a) Falsely represents himself to be a peace officer or public officer; or
b) Not being a peace officer or public officer, uses a badge or article of uniform or equipment in a manner that is likely to cause persons to believe that he is a peace officer or a public officer, as the case may be.
What is identity fraud? s. 403
Everyone commits an offence who fraudulently personates another person living or dead,
a. with intent to gain advantage for themselves or another person
b. with intent to obtain any property or an interest in any property
c. with intent to cause disadvantage to the person being personated or another person or
d. with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.
What is identity documents? s. 56.1
Every person commits an offence who, without lawful excuse, procures to be made, possesses, transfers, sells or offers for sale an identity document that relates or purports to relate, in whole or in part, to another person.
does not include acting in good faith, genealogical purposes, consent from the person who the id is or legitimate admin of justice
What is public mischief? s. 140
Everyone with intent to mislead, causes a peace officer to enter on or continue an investigation by:
a) Making a false statement that accuses some other person of having committed an offence
b) Doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
c) that an offence has been committed when it has not been committed;
d) Reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.
