Module 5 pt.1 Flashcards
What is Detention?
Any situation where a person is under physical control or restraint, or when they are legally obligated to cooperate with authorities
What are the three types of detention?
Physical restraint, Legal compulsion, and Psychological restraint
What is Physical restraint?
The most obvious form of detention involving direct physical control
What is legal compulsion?
When a person is under a legal obligation to comply with police orders (eg.pulling over when instructed)
What is Psychological restraint?
situations where a reasonable person would feel constrained and compelled to cooperate with the police, even if their is no formal legal obligation
What are the 3 types of ways “Psychological restraint” is assessed?
Circumstances of the encounter = was it a preliminary investigation or a focused interrogation?
Nature of police conduct = was it open-ended and friendly or directive and demanding?
Characteristics of the suspect = are they vulnerable due to youth, education level, minority status, etc…
Section 9 protects what?
This section protects the right to not be arbitrarily (for no reason) detained or imprisoned
What are the two types of Arbitrary detention?
1) no legal authority = when police detain someone without a lawful power to do so
2) exceeding legal authority = when police detain someone under a lawful power but abuse that power
What is Investigative Detention?
A common law power allowing police to detain suspects for brief periods for investigative purposes
What is a limit of investigative detention?
Police must have a reasonable suspicion that the suspect has committed a crime
What does it mean when they say investigative detention has to be a preliminary questioning>
The questions have to be preliminary in nature and not full of interrogation
What does it mean when they say investigative detention can include a “frisk search”
Police can conduct a pat-down search for weapons if they believe the suspect poses a safety risk.
Section 10 of the charter: Triggered by detention, contains 2 rights, what are they?
10 a) The right to be informed of reasons for detention (must be provided immediately, simple, and renewed if circumstances change)
10 b) The right to retain and instruct council (must be informed of this right without delay)
If a detained person requests council, what does the police have to do?
Police must facilitate access to a telephone and provide a reasonable opportunity to contact a lawyer
What is the Voluntary Confessions rule?
This rule limits police tactics used to pressure suspects into making incriminating statements or confessions
The “operating mind” is a factor for determining voluntariness, what does this mean?
the suspect must have sufficient cognitive capacity to understand what is being communicated and the consequences of their statements
“Threats and promises” is a factor for determining voluntariness, what does this mean? what is this called?
Inducements = interrogation involving threats or promises in exchange for a confession
The “opression” is a factor for determining voluntariness, what does this mean?
This considers the atmosphere and conditions of the interrogation including:
- length of interrogation
- deprivation of necessities
- use of manipulative or deceptive tactics
What five aspects are included in “actus Reus”
Voluntariness
Definition of the act
Omission
Lack of consent
Causation
What are the 2 types of Mens rea?
Subjective Fault = the prosecution must prove that the accused was aware of the potential consequences of their actions
Objective fault = the prosecution must prove that a reasonable person would have been aware of the potential consequences
In types of criminal defenses, what are the two “negating elements”
Mistake of fact (thought it was sugar not cocaine) and Intoxication
What are the three true-defenses
Self-defence
Duress
Provocation
Sentences must be __________ to the gravity of the offence and the degree of responsibility of the offender
Proportionate
Judges should avoid incarceration unless its necessary for public safety, what is this called?
Restraint
Who has exclusive power over criminal law
Parliament in ottowa
In _______ offences, prosecutors only have to prove actus reus.
Regulatory offences
