Heavy Hitter Cases & Tests Flashcards
When does the Common Law Confessions Rule come about?
When an accused makes a confession to a third party out-of-court.
What are the steps/test for the Common Law Confessions Rule?
To get an out-of-court confession admitted at trial, the Crown must prove BARD at the Voire Dire that:
- The third party was an authority figure (police officer)
- The statement was made voluntarily
How to know if a statement was made voluntarily under CLCR?
- no evidence of Quid Pro Quo - ie: no threats/inducements/promises from the police
- no deprivation of human necessities (heat, water, food)
- accused had an operating mind
- no police manipulation/trickery
What are examples of Quid Pro Quo?
“You can leave early if you confess”
“You’ll be here all day if you don’t confess”
What happens if an accused’s out-of-court statement was NOT given voluntarily?
- It’s a breach of the Common Law Confessions Rule
- The Crown fails to prove the statement is voluntary, so it must be excluded from the trial
Who has the onus of proof/to what standard/what level of trial for excluding evidence due to a Charter breach?
The defense counsel has the burden of proving a Charter breach and that the evidence should be excluded under s.24(2) on a balance of probabilities.
How can a confession be made in breach of an accused’s s.10(a) & (b) right?
If an accused’s jeopardy changes after speaking to a lawyer, and the police officer refuses to allow them to speak to a lawyer again, THIS IS A BREACH.
What case mentions a change in jeopardy and a breach of an accused’s 10(a) & 10(b) right?
R v Sinclair
What is s.24(2)?
Proves remedy of exclusion of evidence obtained in breach of a Charter right (ie: s.8, 9, 10, etc.)
Where does the test for the admissibility of evidence under s.24(2) come from?
R v Grant
What are the 3 steps of the Grant Test for determining whether evidence should be admitted?
- Seriousness of the Charter-infringing state conduct (on a spectrum –> goes from a thoughtless breach to one where the officer explicitly breaches a Charter right)
- Impact on the Charter rights of the accused (ie: could be serious because it resulted in a confession, etc.)
- Society’s interest in adjudication of the case on its merits (goes more for including the evidence)
What is the detention test from R v Grant?
Would a reasonable person, in the shoes of the accused, conclude that their right to comply had been removed based on the circumstances of the situation? (ie: police conduct, circumstances of the accused, if accused was vulnerable)
When would the detention test from R v Grant apply?
When there is Psychological Detention WITHOUT Legal Compulsion - when an accused acquiesces to a state actor cause they don’t think they have a choice
What are the exceptions to the right to only speak to a lawyer once, and what case does it come from?
R v Sinclair.
You can speak to a lawyer again if:
- there’s new procedures involving the detainee (ie: polygraph, lineup)
- there’s a change in jeopardy (being accused of a higher crime)
- Reason to question detainee’s understanding of their 10(b) right
Because warantless searches are presumptively unreasonable, what is the onus of proof & the steps for if a SITA search is reasonable?
Crown must prove the reasonability of a search on a balance of probabilities.
A search is reasonable if:
1. It’s authorized by law
2. the law itself is reasonable
3. the manner in which the search was carried out was reasonable (not extreme force, not just mere suspicion)
