M2 - Criminal Justice and the Charter Flashcards
The three sources of criminal law, in order of authority, includes:
- The Constitution Act
- Statute Law
- Common Law
Define:
The Constitution Act has two roles in criminal law. What are they?
- Contains the fundamental principles (freedoms and rights) that government the enactment and application of all law (including criminal)
- Denotes the division of responsibilities in criminal justice administration between the federal and the provincial/territorial governments.
According to the Constitution Act, what are the responsibilities of (1) the federal government; and (2) the provincial/territorial governments in criminal law/justice?
- Federal government is resposible for creating, amending, and repealing criminal laws
- Provincial/Territorial governments are responsible for administering justice (with some exceptions).
What is statute law? There were 4 examples given in class.
Codified laws that prohibit/mandate acts
- Criminal Code
- Controlled Drugs and Substances Act
- Youth Criminal Justice Act
- Corrections and Conditional Release Act
According to Canadian Statutes, which laws are (1) federal governments and (2) provincial/territorial governments responsible for?
- Federal governments are responsible for true criminal laws
- Provincial/Territorial governments are responsible for regulatory laws
T/F: The statue law of the criminal code is not above the Charter.
TRUE. It is therefore, not absolute.
Examples of regulatory law:
- traffic safety acts
- child and services act
What is Common law? where is it most concerned with in public justice administration?
Not written in legislation; previously decided cases/precedents
most related to the application of police powers.
What is Stare Decisis? How is applied in criminal justice administration
to stand by what has already been decided
relevant in case law preceeding decisions
Explain the Charter’s established right to be secure against unreasonable search or seizure
Where people have a reasonable expectation of privacy (house, cars, cellphones/computers), police are required to obtain warrants, which require reasonableness and particularity. This allows them to conduct reasonable searches.
in the context of warrants
What is reasonableness and particularity?
Reasonableness: reason that can justify the search, and belief of a committed crime
Particularity: the exact location of the serch must be provided and the items to be searched must be indicated.
In terms of searches themselves…
What does it mean for a search to be reasonable?
The scope of the search must be justifiable depending on the intentions behind the search.
When are there exceptions in the requirement of a search warrant? (4)
- Informed and voluntary consent is given
- Emergency situation
- While making an arrest/detainment (to search for weapons)
- An officer is legally in position to see something incriminating
Define and provide an example:
The Doctrine of Plain view
When an officer is legally in a position to see something incriminating, they can act on that thing.
e.g. If a police officer pulls you over and sees an unregistered gun.
What is searched by the police during a(n)
1. Arrest
2. Detainment
- Arrests: ways of self-protection of the police (Weapons) AND methods of collecting/preventing the destruction of evidence.
- Detainment: Only weapons are collected
What are the two types of warrant?
- Arrest warrant
- Search warrant
Explain the Charter’s established right not to be arbitrarily detained or imprisoned
police must have reason to detain (e.g. investigative detention), and warrants prior to arrest (with some exceptions)
Investigative detention
Detention under the reason of a potential link between the detainee and a recent/ongoing criminal offence.
What are 3 exceptions in which police can arrest without a warrant?
- the suspect is caught in the act (venting) or is about to commit an indictable act (hovering over the vent)
- on reasonable grounds, officer believes individual will fail to appear in court
- Arrest is “necessary in the public interest”
Explain the Charter’s FOUR established rights on arrest or detention
similar to US Miranda rights:
* To be informed of the reasons for arrest or detention
* To retain and instruct counsel without delay and to be informed of this right
* To have the validity of the detention determed through habeas corpus and to be released if not lawful
* To remain silent and to be informed of this right
Explain
Habeas corpus
you have the body
the right to request if you are being rightfully held and to be released if you are not
What legal aids are available / not available to you during arrest or detainment?
guaranteed ONE free initial consultation of a toll-free number of a legal aid and the information for legal aid programs and duty counsel programs
BUT you are not guaranteed a lawyer even in cases where you cannot afford it.
Confessions rule
All statements made by a suspect to a person of authority must be proven to be voluntary for that information to be admissible in court?
As a result of the R v. Oikle case, what are four aspects in voluntary confessions?
- Threats/promises
- Conditions of oppression
- Operating Mind
- Trickey
Explain the Charter’s established rights upon being charged
- to be informed of the offence
- to be tried at a reasonable time
- not to be a witness in their own trials
- presumed innocent until proven guilty
- not to be denied reasonable bail without just cause
- trial by jury
- not to be found guilty of an act or ommission unless it was an offence under the law at the time of the crime commmitment
- no double trial for the offence
- benefit of the lesser punishment
- entitled to disclosure of all details o the case against them
Explain the stinchcome rule
Based on the R. v. Stinchcome case,
where the accused has the right to know all the details of the cause, including exculpatory evidence.
This is a one way (Crown –> accused) street, except for accused alibis.
What is a “reasonable time” for trial in provincial courts?
18 months from the offence charge to the end of the trial
What is a “reasonable time” for trial in superior courts?
30 months from offence charge to the end of the trial
where is the burden of proof for a trial, based on the statement, “innocent until proven guilty”?
the crown
show cause hearing
How long should a show cause hearing occur from the time of arrest?
bail hearing, must be within 24 hours of the arrest
If an individual’s charter rights have been violated in court, what remedies can judges provide?
- excluding evidence
- staying proceedings (basically acquittal)
- reducing sentences
- ordering the payment of damages
Explain the Charter’s established rights not to be subjected to any cruel and unusual treatment
the extent of Canada’s punishment is the locking up
(think death penalty abolition in Canada)
Explain the Charter’s established rights to equality in the context of criminal law
equal protection and benefit of the law
explain “diminished moral blameworthiness”
for young offenders, the argument
The Supreme Court recognizes that certain populations are vulerable in the criminal justice process. Explain 3 of them.
- PW(mental)D - mental health acts
- Children - can testify outside courtroom or behind the screent o avoid being traumatized
- SA victims - Rape shield laws
