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