Lesson Plan 2: Evidence, the Common Law Confession Rule, and the Charter Flashcards
Sources of Rules of Evidence?
- Criminal Code
- Canada Evidence Act
- Common Law (Exception: Hearsay Rule)
- Charter of Rights & Freedoms
Evidence is admissible at trial if:
- relevant to a fact-in-issue
- probative value exceeds prejudicial effects of the evidence
- cannot be excluded by a common law or statutory exclusionary rule
- cannot be excluded under the Charter
Most powerful piece of evidence for the prosecution?
a statement
Moral Prejudice?
ex- bad character evidence, other evidence showing that the accused is a bad person
which is bad because the jury will just want to convict them because they’re a bad person
Reasoning Prejudice?
jury might be distracted from their proper focus/trial process becomes distorted - evidence which causes a forbidden chain of reasoning by the trier of fact (ex: resorts to myths/stereotypes)
Inculpatory Statement?
Expresses blame/guilt
Exculpatory Statement?
Evidence that exonerates of guilt
Common Law Confession Rule
Prosecution can introduce a confession into evidence that an accused made to a third party
An exception to the hearsay rule
Can be inculpatory or exculpatory
Voluntariness of Confession includes:
- not coerced, given under duress, or given because of quid pro quo
- accused had an operating mind
- statement not elicited by oppressive circumstances
- doesn’t apply to Mr. Big investigations
Quid Pro Quo?
threat/inducement, an exchange of favors.example of an involuntary statement as the accused only spoke because they were under threat of being kept in jail/promise of being let out of jail
Examples of Quid Pro Quo?
“I’ll let you leave early if you talk”
“Now is your only opportunity to speak”
What would not be an example of quid pro quo?
“It could be good for you to speak and unburden your heart and say what happened”
Operating Mind?
when the accused doesn’t know what’s going on cognitively (drugs, alcohol)
Oppressive Circumstances?
depriving accused of food/water/heat while in custody
Mr. Big Investigation?
when accused speaks to officers not knowing they are authority figures
Onus of Proof for admissibilty of statements?
The Crown, BEYOND A REASONABLE DOUBT
Why is the common law confession rule so important?
It’s a judge made rule that has now taken on a CONSTITUTIONAL STATUS - now considered a principle of fundamental justice
When would the Crown want to submit an exculpatory statement?
If the accused is seen lying to an authority figure, this limits the trust of the accused - would be useful to prosecution to show untrustworthiness
Hearsay Rule?
out of court statements being introduced to prove the truth of its contents is inadmissible/when there’s an out-of-court statement from the accused heard by a witness, and the witness wants to repeat what the accused said
4 Elements of Hearsay Rule?
- the declarant
- the recipient
- statement (by declarant)
- the purpose of its admissibility
Right to Counsel (Charter Section 10b) & 2 Basic Rights after arrest/detention?
“Everyone has the right on arrest or detention”
- be informed promptly of the reasons of arrest
- to retain and instruct counsel without delay and to be informed of that right
4 Potential Sources of Witness Error During Testifying?
- perception problems
- memory problems
- communication problems
- sincerity problems
Statement Against Interest?
If the accused said something out-of-court, that’s Hearsay (statement against interest - people don’t generally tell falsehoods against their own self-interest)
What section is Right to Counsel?
Charter Section 10(b)
What are the 2 components of s.10(b)?
- Informational
- Implementation
What is the Informational component of s.10(b)?
Informational: accused must be informed promptly upon arrest or detention of:
a. Right to counsel
b. Availability of counsel
c.Availability of immediate, temporary legal advice
d. The means of access to free preliminary legal advice
What is the implementation component of s.10(b)?
Implementation: police are obligated to do the following:
a. Provide the accused reasonable opportunity and means to contact counsel
b. Refrain from attempting to elicit evidence from accused until they have had that reasonable opportunity
How are an accused’s rights to s.10(b) defeated/what are the exceptions to 10(b)?
- If accused isn’t reasonably diligent in exercising the right
- Exigent circumstances exist that act against allowing the accused to seek counsel (ie: needing breathalyzer immediately)
Arrest?
a form of detention, physical control of another person typically by a police officer
Rights of 10(a) and 10(b) kick in immediately
Detention?
Detention: much wider concept than arrest
Rights kick in immediately and wouldn’t apply 2 seconds prior
What is the test to determine when a detention has taken place (from R v Le)?
Would a reasonable person in the accused’s place conclude that their right to choose whether to comply has been removed based on:
1. The circumstances giving rise to the encounter
2. The nature of the police conduct
3. The particular characteristics of the accused
What are the 3 kinds of detention under s.10 (from R v Grant)?
- Physical Detention
- Psychological Detention WITH Legal Compulsion
- Psychological Detention WITHOUT Legal Compulsion
What must the Crown prove if they want a confession to be admitted under the Common Law Confessions Rule?
- The person who the confession was given to was an authority figure
- The statement was given voluntarily
How might a confession be excludable under a s.10 breach?
If the accused is pushed into confessing before learning about their s.10 rights.
How might a confession be fair game at trial under s.10?
If the accused was informed of their s.10 rights and refused to talk to a lawyer, then confessed.
What is the Grant Test on Admissibility of Evidence Obtained via a S.8 Breach?
What are the 3 exceptions to the right to seek counsel from R v Sinclair?
- New procedures involving the detainee (ie: polygraphs & lineups)
- A change in jeopardy (ie: charge is strengthened)
- Reason to question the detainee’s understanding of his section 10(b) rights (ie: didn’t know what waiving them meant)
What section of the Charter is Search & Seizure?
s.8
What does s.8 of the Charter state?
Everyone has the right to be secure against unreasonable search and seizure.
Search Warrant?
Sworn document by police officer that provides explanation of background to investigation/where they want to search & why.
What is the test for the reasonableness of a SITA search from R v Collins?
- the grounds for arrest must be reasonable
- authorization for arrest must be reasonable
- the search must be conducted reasonably
Ratio from R v Patrick?
There’s no privacy interest in garbage once it’s been disposed.
Ratio from R v Cole?
There’s a reasonable expectation of privacy on a work computer (although not as strong as a personal computer).
Ratio from R v Vu?
Electronic searches require explicit authorization/separate search warrant because of the high degree of privacy.
Test about SITA Searches from R v Fearon?
SITA searches are presumptively unreasonable. Crown must prove the search was reasonable by proving these 4 things:
1. the arrest was lawful
2. the search is incidental to the arrest
3. the nature and extent of the search must be tailored to its purpose
4. police must take detailed notes of what they examined and for how long
What Charter section is the Exclusion of Evidence?
s.24(b)
Who bears the onus of proving a Charter breach for the exclusion of evidence?
The accused bears the burden of proving the breach and must prove on a BALANCE OF PROBABILITIES (BOP) during the VOIRE DIRE that the evidence should be excluded.
Created Evidence?
Evidence that the accused makes (confession).
Real Evidence?
evidence that pre-existed the Charter breach (knife, gun).
Grant Test for Determining if Evidence Should be Excluded Under s.24(2)?
- Seriousness of the Charter-infringing state conduct
- Impact on the Charter rights of the accused
- Society’s interest in adjudication of the case on its merits
What is the range of severity for a Charter breach (s.24(2))?
Lower end = hair sample, car, locker
Higher end = body search, house, laptop, phone
