PROV LAW Flashcards
Three Steps for Ticketing
- Issue (within 30 days)
- Serve (within 30 days)
- File (as soon as practicable but no later than 7 days)
Issuing an Offence
Have a “belief” an offence occurred, must fill in pertinent info on a snap set ticket form, officially called a “certificate of offence”
Serve
PERSONALLY deliver or serve a defendant the completed “offence notice” copy (or summons)
File
once service is complete, sign “certificate of offence” and file it with the office of the court
Part I vs. Part III Determining Process
Seriousness
Consequences
Circumstances
Commencement of Proceedings
Part I: when the certificate of offence is filled in the office of the court; Part III: when the information is laid before a justice.
When the proverbial “wheels of justice” are set in motion
Before releasing, what needs to be satisfied?
P - public interest
R - repeat
I - identity
E - evidence
R - residence (200km? outside of Ontario?)
Part I: need
A Belief
Part III: need
reasonable, probable grounds
How long do you have to lay a charge?
Part I: 30 days, then Part III
Part III: 6 months, 3 years for CAIA, or 2 years for LLCA
Young Person
12 - 15 years
Residential Tenancies Act Purpose
To ensure the rights, obligations and responsibilities between landlords and tenants are clearly understood. Balance the power between landlords and their tenants “security of tenure”
Roles of Police in RTA
- keep the peace
- remain objective
- avoid giving legal advice
- ensure the safety of persons and protection of property
- ask to see pertinent documents
provide referrals - evidence may be required at tribunals
- Police may lay charges under Part III HOWEVER should contact IEU
Landlord and Tenant Board
Resolves disputes regarding rights and responsibilities, rent increases, evictions and privacy issues
Ministry of Municipal Affais and Housing
- investigation and enforcement unit - responsible for compliance and enforcement under the RTA
Exemptions to RTA
- Hotels - when used as transient accommodations
- employment occupancy
- non-profit/ cooperative housing
- roommate of tenant
- nursing homes
- shared occupancy
- educational, correctional occupancy
Landlord Right to Enter (with notice)
can be between 0800 and 2000 only if 24 hours written notice has been given to the tenant - need to give the reason for entry, time and date
Landlord right to enter (without notice)
on consent or in emergency
to show unit if
- notice of termination was given
entry between 0800 and 2000
makes reasonable effort to inform
repair or replace
carry out health, safety housing, or maintenance inspection
RTA evictions
landlord may apply for eviction AFTER given notice of termination (may apply immediately)
order enforces by sheriff office (police may assist)
tenant has 72 hours following eviction by sheriff to retrieve belongs between 0800 and 2000
RTA steps for lawful eviction
- serve valid “notice of termination”
- apply to LTB for “eviction order”
- serve teannt with App. and notice of hearing
- obtain an “eviction order” from LTB
- deliver order to sheriff to enforce
termination notices
- no notice needed if agreed between landlord and tenant
- period notice: 28 days for daily/weekly tenancy, 60 days for monthly/ yearly
Abandonment
not abandoned if:
- there are no arrears of rent
- no substantial evidence of abandonment
- landlord can’t dispose of property if abandoned unless first obtained an order from the board or give 30 days notice to tenant and to the board
Vital services RTA
withholding services is prohibited
RTA provisions
- seizing tenant’s property is prohibited
- lease/ contract cannot supersede and provisions of RTA
- landlord may not change locks without giving tenant keys
- tenant may not change locks without consent
Liquor definition
spirits, wine, beer, any combination, including any alcohol suitable for human consumption
Alcohol definition
a product of fermentation or distillation of grains, fruits, or other agricultural products. Includes synthetic ethyl alcohol
Beer Definition
any beverage containing alcohol in excess of prescribed amount obtained by fermented barley, malt, or hops - 0.5 of 1% V/V
Wine definition
any beverage containing alcohol in excess of prescribed amount obtained by fermented natural fruit sugars - 0.5 of 1% V/V
Spirits Definition
Distillation of any beverage containing alcohol obtained by distillation
Sell definition LLCA
to supply remuneration, directly or indirectly
POACH LLCA
Purchase
Obtain otherwise
Attempt to purchase
Consume
have … liquor
Parental Exemption
in a resident or private place, by a parent or person having legal custody, consumed in the place it is supplied
Residence LLCA
place actually occupied and used as a dwelling
whether or not in common with other persons
all premises in conjunction which the general population is not invited or permitted access
a tent, including land immediately adjacent to and used in conjunction with tent
LLCA - Private Place Indoor place
- public is not ordinarily invited or permitted
Where is an intoxicated person not allowed? LLCA
no person shall be in an intoxicated condition in a place to which the general public is invited or permitted access
or
in any part of a residence that is used in common by persons occupying more than one dwelling in the residence
LLCA Intox in Public Place (3 part test)
Intoxication by alcohol AND is in a public place or common area AND arrest is necessary for the safety of any person
LLCA Fail to Identify (2 part test)
finds a person apparently in contravention of this Act AND Fails to give his or her name and address OR on reasonable grounds to believe that the name or address given is false
RTA: arrest authority
no general arrest authority
Name of forms
104 - short form
105 - information
106 - long form
Max fine in part 1
adult $1000
youth $300
Police officer
chief or Other PO (not special constable or by law officer)
104 short 4 used for, and issued by
used for: pers found at or near the place of offence
issued by: POO
long form - issued by, who can swear to an information
issued by the Justice
anyone and swear to an information
LLCA Private place - boat/ vessel
- permanent sleeping accommodations
- permanent cooking and sanitary facilities
- anchored or secured to the dock or land
land or dock can be private place if the public is not invited or permitted
LLCA Private Place - M/V
- used as a residence
- sleeping accommodations
- cooking facilities
- parks and OFF highway
LLCA employment exemption, education exemptions, parental exemption
employment: 18 y/o at work can enter and remain
educational: s. 28 o reg 745/21
parental: given by parent, in a proven residence or pers. with lawful custody
no pers shall have or consume liquor in a place other than and exemption
a. residence
b. premises with license or permit issued
c. private place
d does not apply if it’s in a closed container
exemption: closed container
Private place: what’s included?
- indoor place
- Motor vehicle
- Boat/ Vessel
LLCA Possession (requirements)
knowledge
consent
control
When can you search LLCA?
PO or conservation officer, who reasonably believes
- that liquor is being unlawful kept
- in a vehicle or boat
- may at any time without warrant enter and search
- vehicle or boat And Any person found in it
LLCA: search a person
only authority unto search a person is when you are searching a motor vehicle or boat (liquor is being kept unlawfully)
LLCA: seizure
seize anything, including liquor, if:
-evidence
- reasonably believes that:
> used in connection of an offence under this act
> would continue the offence
- proceeds of an offence
LLCA inspection authorities
To ensure compliance
- enter any place at reasonable time
- request documents or things relevant
- inspect and upon receipt remove documents or things relevant
CCA: amount of time to lay a charge
2 years to charge from day of the offence
RTA keys
- landlord may nor change locks without giving tenant keys
- teenat may not change lock without consent
Part 1 Limitations
- must include a set fine
- summons must have a court date
- no jail time
- your pers must be served a summons
What is a Premise?
- Lands
- Structures
- Includes
○ Water
○ Ships/vessels
○ Trailers / portable structures
○ Trains / railway cars / vehicles/ aircrafts
Except while in operations
What is an Occupier?
Physical possession of premises
- responsibility for/ control over premise/ activity
- school boards
How can notice be given?
- Orally or in writing
- Signs (clearly visible in daylight)
- Marking Systems
What are the 3 basic charges laid under the TPA?
- Engage in Prohibited activity
- enter when entry prohibited
- refuse to leave when directed
What are the types of markings?
min 10 cm, at each access point, visible in daylight
red= prohibited
yellow= prohibited except for certain activities
TPA - When is no notice required?
- garden, field (if it grows don’t go)
- enclosed or fences
What is implied permission?
access for lawful purpose to door of building, for communication
What does it mean to engage in prohibited activity?
- person not acting under right / authority
- without permission of occupier
engages in activity prohibited under act
- without permission of occupier
What does it mean to “fail to leave when directed?”
- person not acting under right / authority
- does not leave immediately after directed
○ by occupier
person authorized
- does not leave immediately after directed
TPA - Who is the onus on?
the person charged must prove they had lawful right, or colour of right to have reasonable belief they have a title or interest in the property
What are the two arrest authorities?
ON the premise or OFF the premise
What is the ON Premise arrest authority
- Police, Occupier or Authorized Agent (P.O.A.)
- may arrest on R & PG
- breach of Sec. 2 (“Enter’, “Engage” or “Refuse”) and fail to leave
(note**if Occupier or Agent makes arrest, they must promptly call & tum over to a P.O.)
What is the OFF premise arrest authority?
- Police officer
- R & PG person has been in contravention
- Made fresh departure
- Person refuses to identify, or R& PG identity is false
S.10 TPA
Apprehension vs. Arrest
- Arrest: Take physical control with intent to detain - charges may or may not be pursued. RTC must be provided
- Apprehension: Take physical control with intent to detain. Charges are not pursued, rather, apprehension is made for safety. RTC are not always required
What is a voluntary patient?
- Admitted on recommendation of physician
- Not detained/ restrained
- Chooses to be admitted and can leave anytime
What is an Informal Patient
- Person who is a patient in a psychiatric facility under consent of another person who is entitled to give or refuse consent to treatment on his/her behalf
chooses to be admitted and can leave anytime
Involuntary Patient
brought in on a form 1, Person detained in a psychiatric facility under a certificate of involuntary admission or certificate of renewal (psychiatrist will use to extend their stay)
What is a mental Disorder?
a disease or disability of the mind
Whos is an officer in Charge?
- Officer responsible for the management of psychiatric facility
- Usually the head psychiatrist
What is a form 1?
- Must be signed by physician within 7 days of examination
- Valid for 7 days after signed
- Authorizes any person to take person to facility
- Authorizes detention in psychiatric facility for observation / examination for up to 72 hours
7 day, 7 days, 72 hours
Physicians Application for Psychiatric Assessment (“APA”)
- Sec 15 MHA
○ person examined within 7 days by physician, whether history of mental illness/treatment or not
○ physician has reasonable cause to believe person is danger to self or others, or inability to care for self
○ physician makes application for assessment in Form 1
Physician’s Order - Community Treatment Order
- Physician’s order for examination
- Section 33.3 MHA
○ person who is suffering from a mental disorder is living in the community under a Community Treatment Order, and
○ person fails to comply with CTO,
○ physician may terminate CTO, and make an order for examination - Form 47
○ directed to police
valid for 30 days
Justice of the Peace order for psychiatric examination
○ Sec 16 MHA
§ any person (including police) can lay an information before a justice outlining grounds
§ typically initiated by family members
§ JP must be convinced that subject is a danger
- Form 2
○ directed to police
valid for 7 days
Judges order for examination
(Sec 21)
○ person is before the court under a charge or conviction
○ Judge believes person suffers mental disorder
- Judges order for admission (Sec 22)
○ person is in custody before the court charged with an offence
○ Judge believes person suffers mental disorder
○ 2 month maximum
Senior physician (“Psychiatrist–in-Chief”) reports in writing to judge
What are Police’s Powers of Apprehension?
- Section 17
- situations too dangerous to wait,
- authority to apprehend
○ take person into custody
○ to an appropriate place
○ for examination by a “physician”
What is the 4 part test of Sec 17 MHA?
- RPG believes person is or has acted disorderly
- reasonable cause to believe is or has demonstrated violence or can’t care for self
- apparent mental illness likely to result in serious BH to anyone
- too dangerous to wait to get JP’s order under s. 16
what is Absent without leave under the MHA
- unauthorized absence where a involuntary patient is AWOL
- directing police to return on form 9
- return within one month
patient deemed discharged if not returned within one month
What does restrain wrt MHA?
- means to place under control when necessary to prevent serious bodily harm to the patient or other person by the minimal use of force, mechanical means or chemicals
- this section refers to medical professionals and employees of hospitals/psychiatric facilities
What is the duty of Police in the MHA
- police officer shall remain at the facility and retain custody until the facility takes custody
○ S. 33 MHA - Bill 68 (Brian’s Law)
○ that custody be transferred as soon as reasonably possible, and
○ that police be notified promptly when a decision is made to accept or not accept
Criminal Charges and Mental Health
- if applicable, charge criminally and hold for show cause hearing
- advise crown attorney of findings
- court should hold person on secondary grounds being “public interest”
- S. 22 MHA: court order for admission to a psychiatric facility for assessment
- where person apprehended under section 17, criminal charge/proceedings may follow examination by physician
Who is defined as a child in the CYFSA
means actually or apparently younger than 18 years old
What is a safe place?
- a foster home,
- a hospital, and
- a place designated as such by a Director;
- but does not include,
○ a place of temporary detention,
○ of open custody or
○ secure custody subsection - 74(1) CYFSA
○ NOTE: “place of safety” does not include:
§ a police station (not in cells) or a school (could be the source of the problem)
§ Firehall (firefighters not always there)
When is a child in need of protection?
○ A child is in need of protection where the following conditions or situations exist.
- physical harm
- sexually molested / exploited
- requires medical treatment
- emotional harm
- mental, emotional, developmental condition
- abandoned
- Under 12 years: offences
- parent surrenders custody
What is the duty to report?
○ if a person
○ including a person who performs professional or official duties with respect to children,
○ has reasonable grounds to suspect a child in need of protection
○ the person shall forthwith report the suspicion and the information on which it is based to a society
What is Police officer’s duty to report?
- ongoing duty to report
- need to report suspicion
Child apprehensions
- Apprehension can be with or without warrant
- Without warrant- RPG “Substantial Risk” to health or safety EXISTS, then peace officer/Child Protection Worker may apprehend w/o warrant and bring to a place of safety.
If no RPG “Substantial Risk” investigate further application to Justice of Peace for warrant/hearing.
What is the curfew under the CYFSA?
child less than sixteen years of age shall not loiter in a public place between the hours of midnight and 6 a.m. or in a place of public entertainment between the hours of midnight and 6 a.m.
unless the parent accompanies the child or authorizes a specified individual eighteen years of age or older to accompany the child
Child under 12 years Committing Offence
- peace officer on R & PG
- child under 12
- has committed an act / offence
○ may apprehend without warrant - Must return child to parent / person having charge as soon as practicable or to a place of safety until returned
What are the provisions for supervision?
- no person
- having charge of a child
- less than sixteen years of age
- shall leave the child without making provision for supervision and care
- that is reasonable in the circumstances
Warrant to Apprehend: child in need of protection
sworn information before a JP when there are RPG child under 16 years, in need of protection, no substantial risk to child’s health or safety, less restrictive not adequate
Warrant to apprehend: Runaway Child
- Upon sworn information of a parent before a JP
- (**no authority to apprehend a runaway without a warrant)
○ child under 16 years;
○ withdrawn from parents care or control (i.e. runaway),
○ R & PG child’s health or safety is at risk if not apprehended - authorizing peace officer or CAS worker to apprehend and return child to parents
alternatively, to a place of safety, with notice to parent for return
Is correction of a child by force allowed?
yes, s. 43 CC states:
1. Every Schoolteacher, parent, or person standing in the place of a parent
2. Justified in using force
3. For correction
4. Against a child/pupil under their care
Force does not exceed what is reasonable in the circumstances
