Lesson Plan 2: Evidence, the Common Law Confession Rule, and the Charter

Question 1

Sources of Rules of Evidence?

Answer 1

1. Criminal Code
2. Canada Evidence Act
3. Common Law (Exception: Hearsay Rule)
4. Charter of Rights & Freedoms

Question 2

Evidence is admissible at trial if:

Answer 2

1. relevant to a fact-in-issue
2. probative value exceeds prejudicial effects of the evidence
3. cannot be excluded by a common law or statutory exclusionary rule
4. cannot be excluded under the Charter

Question 3

Most powerful piece of evidence for the prosecution?

Answer 3

a statement

Question 4

Moral Prejudice?

Answer 4

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

Question 5

Reasoning Prejudice?

Answer 5

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)

Question 6

Inculpatory Statement?

Answer 6

Expresses blame/guilt

Question 7

Exculpatory Statement?

Answer 7

Evidence that exonerates of guilt

Question 8

Common Law Confession Rule

Answer 8

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

Question 9

Voluntariness of Confession includes:

Answer 9

1. not coerced, given under duress, or given because of quid pro quo
2. accused had an operating mind
3. statement not elicited by oppressive circumstances
4. doesn’t apply to Mr. Big investigations

Question 10

Quid Pro Quo?

Answer 10

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

Question 11

Examples of Quid Pro Quo?

Answer 11

“I’ll let you leave early if you talk”
“Now is your only opportunity to speak”

Question 12

What would not be an example of quid pro quo?

Answer 12

“It could be good for you to speak and unburden your heart and say what happened”

Question 13

Operating Mind?

Answer 13

when the accused doesn’t know what’s going on cognitively (drugs, alcohol)

Question 14

Oppressive Circumstances?

Answer 14

depriving accused of food/water/heat while in custody

Question 15

Mr. Big Investigation?

Answer 15

when accused speaks to officers not knowing they are authority figures

Question 16

Onus of Proof for admissibilty of statements?

Answer 16

The Crown, BEYOND A REASONABLE DOUBT

Question 17

Why is the common law confession rule so important?

Answer 17

It’s a judge made rule that has now taken on a CONSTITUTIONAL STATUS - now considered a principle of fundamental justice

Question 18

When would the Crown want to submit an exculpatory statement?

Answer 18

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

Question 19

Hearsay Rule?

Answer 19

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

Question 20

4 Elements of Hearsay Rule?

Answer 20

1. the declarant
2. the recipient
3. statement (by declarant)
4. the purpose of its admissibility

Question 21

Right to Counsel (Charter Section 10b) & 2 Basic Rights after arrest/detention?

Answer 21

“Everyone has the right on arrest or detention”

1. be informed promptly of the reasons of arrest
2. to retain and instruct counsel without delay and to be informed of that right

Question 22

4 Potential Sources of Witness Error During Testifying?

Answer 22

1. perception problems
2. memory problems
3. communication problems
4. sincerity problems

Question 23

Statement Against Interest?

Answer 23

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)

Question 24

What section is Right to Counsel?

Answer 24

Charter Section 10(b)

Question 25

What are the 2 components of s.10(b)?

Answer 25

1. Informational
2. Implementation

Question 26

What is the Informational component of s.10(b)?

Answer 26

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

Question 27

What is the implementation component of s.10(b)?

Answer 27

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

Question 28

How are an accused’s rights to s.10(b) defeated/what are the exceptions to 10(b)?

Answer 28

1. If accused isn’t reasonably diligent in exercising the right
2. Exigent circumstances exist that act against allowing the accused to seek counsel (ie: needing breathalyzer immediately)

Question 29

Arrest?

Answer 29

a form of detention, physical control of another person typically by a police officer

Rights of 10(a) and 10(b) kick in immediately

Question 30

Detention?

Answer 30

Detention: much wider concept than arrest

Rights kick in immediately and wouldn’t apply 2 seconds prior

Question 31

What is the test to determine when a detention has taken place (from R v Le)?

Answer 31

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

Question 32

What are the 3 kinds of detention under s.10 (from R v Grant)?

Answer 32

1. Physical Detention
2. Psychological Detention WITH Legal Compulsion
3. Psychological Detention WITHOUT Legal Compulsion

Question 33

What must the Crown prove if they want a confession to be admitted under the Common Law Confessions Rule?

Answer 33

1. The person who the confession was given to was an authority figure
2. The statement was given voluntarily

Question 34

How might a confession be excludable under a s.10 breach?

Answer 34

If the accused is pushed into confessing before learning about their s.10 rights.

Question 35

How might a confession be fair game at trial under s.10?

Answer 35

If the accused was informed of their s.10 rights and refused to talk to a lawyer, then confessed.

Question 36

What is the Grant Test on Admissibility of Evidence Obtained via a S.8 Breach?

Question 37

What are the 3 exceptions to the right to seek counsel from R v Sinclair?

Answer 37

1. New procedures involving the detainee (ie: polygraphs & lineups)
2. A change in jeopardy (ie: charge is strengthened)
3. Reason to question the detainee’s understanding of his section 10(b) rights (ie: didn’t know what waiving them meant)

Question 38

What section of the Charter is Search & Seizure?

Answer 38

s.8

Question 39

What does s.8 of the Charter state?

Answer 39

Everyone has the right to be secure against unreasonable search and seizure.

Question 40

Search Warrant?

Answer 40

Sworn document by police officer that provides explanation of background to investigation/where they want to search & why.

Question 41

What is the test for the reasonableness of a SITA search from R v Collins?

Answer 41

1. the grounds for arrest must be reasonable
2. authorization for arrest must be reasonable
3. the search must be conducted reasonably

Question 42

Ratio from R v Patrick?

Answer 42

There’s no privacy interest in garbage once it’s been disposed.

Question 43

Ratio from R v Cole?

Answer 43

There’s a reasonable expectation of privacy on a work computer (although not as strong as a personal computer).

Question 44

Ratio from R v Vu?

Answer 44

Electronic searches require explicit authorization/separate search warrant because of the high degree of privacy.

Question 45

Test about SITA Searches from R v Fearon?

Answer 45

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

Question 46

What Charter section is the Exclusion of Evidence?

Answer 46

s.24(b)

Question 47

Who bears the onus of proving a Charter breach for the exclusion of evidence?

Answer 47

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.

Question 48

Created Evidence?

Answer 48

Evidence that the accused makes (confession).

Question 49

Real Evidence?

Answer 49

evidence that pre-existed the Charter breach (knife, gun).

Question 50

Grant Test for Determining if Evidence Should be Excluded Under s.24(2)?

Answer 50

1. Seriousness of the Charter-infringing state conduct
2. Impact on the Charter rights of the accused
3. Society’s interest in adjudication of the case on its merits

Question 51

What is the range of severity for a Charter breach (s.24(2))?

Answer 51

Lower end = hair sample, car, locker
Higher end = body search, house, laptop, phone