Federal Law Finals Flashcards
Edward Test (7 steps)
REASONABLE EXPECTATION OF PRIVACY (R v. EDWARDS)
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
Define firearm
means a barreled weapon from which any shot, bullet or other projectile can be discharged and is capable of causing serious bodily harm or death to a person
and includes any frame or receiver of such a barreled weapon and anything that can be adapted for use as a firearm
Three elements of a firearm
Three Elements of a Firearm
1.Barreled Weapon
- Shot, bullet or projectile can be discharged
- Capable of causing serious bodily harm or death
What does Evidentiary Search Warrant include? (Section 487)
EVIDENTIARY SEIZURES:
s. 487 C.C Evidentiary Search WARRANT (General)
Warrant to search for and seized evidence
of a crime
Documents required:
• Information to Obtain the warrant
• Report to Justice
• Order(s) for continued detention (need after 3mths if no charge)
What does Seizure of “plain view” evidence include? Section 489
s. 489 C.C Seizure of “PLAIN VIEW” Evidence Evidence of crime found while: Executing ANY warrant OR Otherwise lawfully in a place Documents required: • Information to Obtain • Report to Justice • Order(s) for Continued Detention
Plain view is contextual
Things not in plain view when search begins may come into plain view by
reasonable execution of lawful search authority
Important to be able to articulate connection between the thing found and the original search authority
Ensure the purpose of the search does not change/expand in response to finding something in plain view
You may need an additional search warrant
What does Warrantless Evidentiary Search and Seizure Power include (section 487.11)
s. 487.11 C.C WARRANTLESS Evidentiary Search and Seizure Power
Applies where conditions for obtaining a warrant under s. 487(1) exist but there are “exigent circumstances”
Documents required:
• Report to Justice
• Order(s) for Continued Detention
What does Warrantless Evidentiary Seizure power under 117.02 include?
s. 117.02 C.C Warrantless Evidentiary Seizure Power
o Requires “exigent circumstances”
o Limitation:
FIREARMS/WEAPONS-SPECIFIC; and
CANNOT be used to SEARCH DWELLING houses Documents required:
Report to justice
Order(s) for Continued Detention
117.03 Seizures
s. 117.03 C.C Seizures – no licence, registration certificate, authorization produced by person in possession of firearm
14 days to produce documents
• Property returned when produced
Since April 5, 2012, No registration certificate required for NR Firearms (Bill C-19)
Documents required:
• Application for Disposition OR
• Report to justice
s. 117.04 C.C Public Safety Seizures
s. 117.04 C.C Public Safety Seizures Provides authority for obtaining warrant or proceeding without warrant in exigent circumstances Non-evidentiary • Preventive search/seizure power • NOT for seizing evidence of crime
WITH WARRANT
Articulable public safety concern; and
Articulable belief firearms, etc. will be found in place to be searched
NOTE: all weaponry and licence/authorizations/registration certificates may be seized
COURT ORDERS:
As a condition of bail, courts often order an accused person to surrender his/her firearms to police
A bail order is a temporary/interim measure
NOT A SEIZURE, no return is required
Bail orders end when court processes end
Define what a Fresh/Hot Pursuit is
FRESH/HOT PURSUIT
o 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
o Ends when accused is no longer is escaping and no longer freshly pursued
Entry into Dwelling House Without Warrant 529.3(1)
s. 529.3(1) C.C – ENTRY INTO DWELLING HOUSE WITHOUT WARRANT
Officer must have reasonable grounds to believe that: Person is present in the dwelling AND
Conditions for obtaining warrant under s. 529.1 exist BUT by reason of exigent circumstances, it would be impracticable to obtain a warrant
s. 529.3(2) C.C – EXIGENT CIRCUMSTANCES
o Peace officer has reasonable grounds to SUSPECT that entry is necessary to prevent the imminent bodily harm or death of any person; OR
o Reasonable grounds to believe that entry is necessary to prevent the imminent loss/destruction of evidence relating to an indictable offence
What does the plain view doctrine explain? S. 489(2)
PLAIN VIEW DOCTRINE – S.489 (2)
Must be lawfully present – by warrant or otherwise The discovery was inadvertent
Articles discovered were clearly incriminating
Explain Implied License To Knock
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
According to Section 2 of CC what is the definition of “weapon”?
Section 2 C.C. “weapon” means anything used, designed to be used or intended for use in causing death/ injury or to threaten/ intimidate and always includes a firearm
3 classifications of firearms
Prohibited
Restricted
Non-restricted
what is the responsibility of the Chief Firearms Office?
CFO responsibilities•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.
Transporting Non-restricted firearms
Transporting Non-Restricted Firearms 10
(1) Must only be UNLOADED
(2) If left in an unattended vehicle: (a) in the trunk if equipped, or(b) out of view
Transporting Restricted / Prohibited Firearms
Transporting Restricted or Prohibited Firearms 11.
Must be:
a) Unloaded
b) Rendered inoperable by locking device, and
c) In a locked, secure contained
Storage of Non-restricted Firearms
Storage Of Non-restricted Firearms5(1)
Must Be:
a) Unloaded
b) Rendered Inoperable by: i .Locking Device, or ii. Removal of Bolt or Bolt Carrier, or iii. Stored in a Locked Container or Room that cannot be readily broken into.
OR: Stored in a vault, safe or room that has been specifically constructed or modified for storage purposes AND that is kept securely locked.
Storage of Restricted or Prohibited Firearms
Storage of Restricted or Prohibited Firearms7.
Must be:
a) Unloaded, and
b) Rendered Inoperable by Secure Locking Device, and
c) Stored in a Container or Room that cannot be readily broken into
NO AMMUNITION IN SAME CONTAINER!
What is a prohibited device?
“Prohibited Device”:
a) any component or part of a weapon, or any accessory for use with a weapon, that is prescribed to be a prohibited device
b) a handgun barrel that is equal to or less that 105 mm (4 in.) in length, but does not include any such handgun barrel that is for use in international sporting competitions governed by the rules of the International Shooting Union,
c) a device or contrivance designed or intended to muffle or stop the sound or report of as firearm,
d) a cartridge magazine that is prescribed to be a prohibited device, or
e) a replica firearm
A Cartridge Magazine that:
a) Is capable of containing more than five cartridges for a semi-automatic “center-fire” rifle
b) Is capable of containing more than ten cartridges for a semi-automatic hand
What is a Feeney Warrant?
FEENEY WARRANT (Form 7, Form 7.1): authorization to enter a dwelling house to arrest
What justification does R V Godoy give Police Officers?
R v. GODOY (911 Call)
o Police are justified in entering dwelling without warrant to protect life and prevent serious injury of the 911 caller
Section 529 entry and arrest warrant allows for what
Entry/Arrest warrant (s.529 C.C)
Allows police to enter dwelling for purpose of affecting an arrest or apprehension
Enter is conditional on officer having, immediately before entering,
reasonable grounds to believe person is in the dwelling
Entry Warrant under section 529.1 allows for what authority?
Entry warrant (s. 529.1 C.C)
Authority to arrest already exists and there is no need to obtain an arrest warrant
Reasonable grounds to believe person will be in residence AND
There is a valid warrant in Canada for the arrest;
Grounds exist to arrest the person without warrant under Criminal Code (s. 495 C.C);
Grounds exist to arrest or apprehend without warrant under an authority other than the Code
Section 529.3(1) entry into dwelling without warrant what conditions must be met before entering?
s. 529.3(1) C.C – ENTRY INTO DWELLING HOUSE WITHOUT WARRANT
Officer must have reasonable grounds to believe that: Person is present in the dwelling AND
Conditions for obtaining warrant under s. 529.1 exist BUT by reason of exigent circumstances, it would be impracticable to obtain a warrant
Section 529.3(2) exigent circumstances, what conditions must be met?
s. 529.3(2) C.C – EXIGENT CIRCUMSTANCES
o Peace officer has reasonable grounds to SUSPECT that entry is necessary to prevent the imminent bodily harm or death of any person; OR
o Reasonable grounds to believe that entry is necessary to prevent the imminent loss/destruction of evidence relating to an indictable offence
What are 3 Elements to Prove for Sexual Assault (Actus Reus) (VSA)
- Voluntary touching occurred
- Sexual nature of touching
- Absent consent
Definition of Sexual Assault
•An assault
–rest defined by case law
•Circumstances of a Sexual Nature
•Violates the Sexual Integrity of the Victim
•General Intent Offence –does not have to be for a sexual purpose
How many levels does Sexual Assault have?
3
Section 271 Level 1 Sexual Assault includes?
Grabbing Groping Touching Brushing against Tearing Clothes Penetration
What type of criminal offence is Sexual Assault
Dual Procedure
Section 272 Level 2 Sexual Assault includes?
- 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
Section 273 Level 3 Aggravated Sexual Assault includes?
- Wounds
- Maims
- Disfigures
- Endangers life
What type of criminal offence is Sexual Assault with weapon?
Indictable
Section 272(1)(d) Party to the offence includes?
2 or more persons
commit
aid or abet in committing
common intention to commit
What is the age of consent?
16
Consent,
Section 273.1(1)
Section 273.1(1.1)
Section 273.1(1.2)
Section 273.1(1) Consent is voluntary agreement of complainant to engage in sexual activity
Section 273.1(1.1) consent must be present at the time sexual activity takes place
Section 273.1(1.2) consent is question of law
Explain sexual interference, Section 151
s. 151 C.C – SEXUAL INTERFERENCE (Most likely charged along side with sexual assault)
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
Explain invitation to sexual touching, section 152
s. 152 C.C – INVITATION TO SEXUAL TOUCHING
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
Exemption to child sex offences under section 150.1(3)
Exemption s.150.1(3) CC
A 12 or 13 year old cannot be tried for sexual inference or invitation to sexual touching unless:
In a position of trust or authority (i.e. babysitter) Relationship of dependency (i.e. foster parent, step-parent) Relation is exploitative (i.e. a pimp)
What are the 11 steps to strip search?
1) Conducted in reasonable manner
2) conducted in police station or private location
3) ensure health and safety of everyone
4) Authorized by supervisor
5) Same gender
6) No more officers than reasonably necessary
7) Minimum force necessary
8) Conducted as quickly as possible
9) Only visual no contact
10) If visual inspection, reveal weapon detainee given option to remove himself or have medical professional remove
11) Proper record for reason and manner of search
What type of law will justify a search?
What type of law will justify a search?
STATUTE LAW – C.C., CDSA, LLA, HTA, HTA, CANNABIS CONTROL ACT (warrants, plain view doctrine)
COMMON LAW – incident to arrest, plain view doctrine
CASE LAW – consent search
3 Elements to Prove Sexual Assault
(VSA)
Voluntary Touching occured
Sexual nature of touching
Absent of censent
Sexual Interference
Every person Sexual purpose Touches directly/indirectly with part of body or object any part of body under 16 years
Invitation to sexual touching
Every person for sexual purpose,
invites, councils or incites person under 16 years to touch directly or indirectly with part of body or an object
the body of any person
The big 3 when dealing with Sexual Offences involving children
Person in position of trust/authority
Relationship of dependency
Relationship of exploitative
Sexual exploitation
16-17 years
same facts in issue as interference / invitation
offender must be part of the big 3
Definition of Theft
Takes or converts another persons animate or inanimate thing with intent to deprive, temporarily or absolutely from a person who has special property or interest in it
What is colour of right
Honest belief of set of facts, circumstances that if they actually exist constitute legal justification or excuse
When is theft complete?
Moves it or causes it to move or be moved or begins to cause it to become moveable
What type of offence is theft?
Dual
Theft over / under $5000
Theft of Motor Vehicle
Dual offence
Fraud definition
Deceit, falsehood or other fraudulent means
of any property, money or valuable security or any service
Robbery definition
Steals and uses violence
steals form any person and wounds, beats or strikes or uses personal violence
armed with offensive weapon or imitation thereof
Theft + Violence = Robbery
What are the 3 categories of possession?
Actual - Person has subject matter in personal possession
Joint - Actual possession is in one person and attributed to another person
Constructive Possession - Two or more persons with knowledge, consent in custody and possession of each and all of them
Constructive
Definition of Possession
Knowledge
Consent
Control
What type of offense is Possession of Property Obtained by Crime
Dual
Break and Enter
Breaks and enters a place with intent to commit indictable offence
commits indictable offence
breaks out of place after committing offence
(Dwelling house)
What type of offence is Break and Enter?
Indictable offence
Definition of place (CC)
Dwelling house,
building/structure
railway vehicle, vessel, air craft, trailer
a pen enclosure in which fur-bearing animals are kept in captivity
Unlawfully in dwelling house
Dual offence
Person without lawful excuse enters or is in dwelling house, with intent to commit indictable offence
What locations do not count in breaking and entering?
Car, vault, and safe
