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crim 330 > Midterm > Flashcards

Midterm Flashcards

1
Q

Precedent

A

an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.

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2
Q

Stare decisis

A

Higher courts bind lower courts

the legal principle of determining points in litigation according to precedent

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3
Q

Concurring Reasons

A

one or more judges of a court who agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for his or her decision

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4
Q

What is the Charter

A

highest level of legislature
part of constitution act in 1982
Paramountcy over all other statutes

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5
Q

S. 7 of the charter

A

Life, liberty, security of person

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6
Q

S. 8 of the charter

A

Search and Seizure

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7
Q

S. 9 of the charter

A

Random Stops (Arbitrary detention)

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8
Q

S. 10 of the charter

A

Right to counsel

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9
Q

S. 11 of the charter

A

Procedural rights

requires trial within a reasonable time

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10
Q

S. 13 of the charter

A

Right against self- incrimimation

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11
Q

S. 24 of the charter

A

Remedies section of the charter

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12
Q

S. 1 of the charter

A

Reasonable limits

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13
Q

S. 52 of the charter

A

Makes charter supreme

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14
Q

What is jurisdiction

A

The ability to make people do what you say.
Historically, country’s jurisdiction extended as far as the army could effectively fight.
Leads to concept of sovereignty and borders.

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15
Q

4 types of jurisdiction

A

Prosecutorial
Offence classification
Time
Territory

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16
Q

Federal jurisdiction

A

S.91 constitution act
enacting criminal law and procedure
Establishing & maintaining penitentiaries
Peace, order & good government

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17
Q

Provincial jurisdiction

A 
S.92 
Administration of justice
Establishing & maintaining prisons
Property & civil rights
Enforcing provincial laws
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18
Q

Prosecutorial Jurisdiction: Provincial Crown

A

Prosecutes criminal & provincial offences

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19
Q

Prosecutorial Jurisdiction: Federal Crown

A

Prosecutes several federal acts

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20
Q

Offence Classification

A

Effects procedure to follow and rights of the accused.
Effects which court has jurisdiction, pretrial procedure and the right to jury.
Impacts on other area of jurisdiction such as time limits to prosecute, and the length of sentence.

21
Q

Indictable offences

A

Divided into three sub categories:
- s. 469- Most serious (Exclusive jurisdiction Supreme Court)
- S. 553 - Least serious (Absolute jurisdiction Provincial Court)
Other Indictable (Accused may elect level of trial)

22
Q

Summary Offences

A

Least serious.
• 6 months max jail sent and $2,000 fine (some exceptions).
• 6 months limitation period (exceptions).
Provincial court has absolute jurisdiction

23
Q

Hybrid offences

A 
Crown has an election re indictable or summary
This election dictates procedure:
•	Time limits
•	Accused elections
•	Sentence range
24
Q

Time limitations for summary and indictable

A

Summary - 6 month limit

Indictable - No time limit

25
Q

Arrest

A

No grounds needed to search
Scope: offense related, evidence, or weapons
Purpose: Compel attendance of accused in court.
Protect people.
Prevent continuation of offence.

26
Q

Detention (Grounds & Scope)

A

Grounds: reasonable suspicion
Scope:weapons

27
Q

Powers to Arrest (Anyone)

A

S. 30 Code
Breach of peace
Anyone who witnesses a breach of the peace
May detain anyone who:
commits the breach, is about to join, is about to renew
Must give person over to peace officer
Can use reasonable force proportionate to danger
Breach must be serious disturbance that, if not stopped, will likely escalate into an assault or serious property damage.

28
Q

Search on Detention

A

1- Officer is only entitled to conduct a pat-down search for the purpose of ensuring officer safety.
2- Search incidental to an investigative detention only authorized where the circumstances warrant a genuine concern for officer safety.

29
Q

Power to Detain

A

Articulable cause detention
Requires a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.
It is not enough to show the police had a subjective belief that the detainees were engaged in criminal activity.

30
Q

Bail Hearing

A

Grounds to Detain s. 515(10)
Primary: Ensure attendance in court
Secondary: Safety of public or victim or witness
Tertiary: Maintain confidence in administration of justice

31
Q

Sources of Evidence Law

A
  1. The common law
  2. Statute
  3. The Charter
  4. Evidence scholarship
  5. Ethical rules
32
Q

General Principal of Admissability

A
  • Relevance
  • Probative Value
  • Prejudicial Effect
  • Fairness
33
Q

Define Evidence and what 3 forms can it take?

A 
Defined as: that which tends to prove a fact in issue or something that may satisfy the enquirer of the fact’s existence
Can take three forms
1) Oral evidence
2) Documentary evidence
3) Physical evidence
34
Q

Purpose of Laws of Evidence

A

The role of the judge is to ensure only admissible evidence is introduced
This is based on the origins of the jury system.
Question: what is the purpose of the trial
1) search for truth
2) to ensure a fair and just process of adjudicating guilt

35
Q

Probative Value

A

Power to exclude evidence on the basis that it’s probative value is outweighed by the prejudice which may flow from it.
The scope of the discretion depends on context.
The test is narrower with crown evidence.
Prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence

36
Q

Prejudicial Effect and fairness

A

1) Moral prejudice
Arises in case of bad character evidence
Danger jury will convict because accused is bad person
2) Reasoning prejudice
It distracts the jury from proper focus
It unduly arouses the jury’s emotions
Eg. promiscuity in sexual assault victims

37
Q

Exclusionary Rules

A

Exclusionary rules start with the presumption that certain types of evidence are inadmissible. This is generally justified on the basis that they are inherently unreliable and unnecessary.

38
Q

Hearsay Rule

A

A declaration made out of court without the solemnity or process associated with that environment is prima facia inadmissible.
It must be: Made out of court, Used to prove truth of what is being asserted

39
Q

Examples of Necessity

A

A) Witness is deceased
B) Witness is missing
C) Witness is not compellable or info is privileged
D) Witness is a child or otherwise incompetent to swear

40
Q

Powers to Arrest (Without a warrant)

A

S. 494(1)
Anyone may arrest without warrant:
a person found committing indictable offence
a person escaping from or being freshly pursued by someone with authority to arrest
courts have said that when lay person arrests under this section, the Charter applies as if a government agent was doing it - so , s. 8 (Search and Seizure) applies
However, they are not actually agents of state so no duty to provide s. 10 (right to counsel)

41
Q

Powers to Arrest (property owners)

A

S. 494(2)
Owner of property or authorized agent
May arrest without warrant
person finds committing criminal offence on or in relation to property he or she owns
Broader than general arrest provision
Must deliver arrested person to peace officer forthwith

42
Q

Powers to Arrest (peace officer)

A

S. 31 - breach of peace
No offence needed
Officer must witness
May arrest: finds committing breach, believes on rpg will join or renew breach
So either breach must already be underway or have happened

43
Q

Rational for Hearsay Rule

A

1) Unreliable: not made under oath, witness not personally before judge to assess, absence of cross examination to guard against fabrication and inaccuracy
2) Jury distrust: judicial doubt as to jury’s ability to properly assess hearsay
3) Fairness and procedural rights: right to challenge sources of evidence mandates presumptive exclusions of out of court statements.

44
Q

Powers to Arrest (Without a warrant)

A

S. 494(1)
Anyone may arrest without warrant:
a person found committing indictable offence
a person escaping from or being freshly pursued by someone with authority to arrest
courts have said that when lay person arrests under this section, the Charter applies as if a government agent was doing it - so , s. 8 (Search and Seizure) applies
However, they are not actually agents of state so no duty to provide s. 10 (right to counsel)

45
Q

Powers to Arrest (property owners)

A

S. 494(2)
Owner of property or authorized agent
May arrest without warrant
person finds committing criminal offence on or in relation to property he or she owns
Broader than general arrest provision
Must deliver arrested person to peace officer forthwith

46
Q

Powers to Arrest (peace officer)

A

S. 31 - breach of peace
No offence needed
Officer must witness
May arrest: finds committing breach, believes on rpg will join or renew breach
So either breach must already be underway or have happened

47
Q

What is test for Probative Value

A

Does it go to prove issue in question
What is the strength of the inference to be drawn
How reliable is the evidence

48
Q

Rational for Hearsay Rule

A

1) Unreliable: not made under oath, witness not personally before judge to assess, absence of cross examination to guard against fabrication and inaccuracy
2) Jury distrust: judicial doubt as to jury’s ability to properly assess hearsay
3) Fairness and procedural rights: right to challenge sources of evidence mandates presumptive exclusions of out of court statements.

crim 330 (2 decks)

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