Test 2 Flashcards
What did the Canadian charter or rights and freedoms have a significant impact on (specific to this unit lolz)
Defining police powers
How did the Charter affect Police powers (generally)?
Provide legal safeguards against unlimited power of police, codifies certain powers as acceptable.
Which section limits all charter rights?
Section 1 (There are exceptions to charter rights if deemed legally necessary)
Which is the most debated section of the Charter?
Section 8, and Section 9 slightly less so
What is section 7? (The definition of the section)
“Everyone has the right to life, liberty and security of the person and the right to not be deprived thereof except in accordance with the principles of fundamental justice”
What applicable right is granted by section 7?
The right to silence, even when subpoenaed or asked by police to speak.
What duty do the police have in relation to the right to silence?
Must notify you of your right to remain silent when arrested, and the fact that anything you say can be used against you.
What is the one thing you can say that does not constitute a waiver of your right?
“I assert my section 7 right to silence.”
What case established the use of “I assert my….” statement as the only speaking that does not constitute a waiver? Give a summary of the case.
R. v. Singh. Singh was arrested and originally attested that he was asserting his right to silence. But then he did give away some details. He tried to say that they weren’t honouring his right to silence, but they were like you waived it when you started sharing details hunny.
Why should you never waive your right to silence?
You can lie without knowing you’re lying (mishear information, fill in blanks, forget details, misremember), police are allowed to lie and try to trick you….
What happens if you’re intoxicated when they tell you about your right to silence?
It still counts as long as you are voluntarily speaking and not like blackout.
How do questioning rules vary for minors?
They can have a parent present.
How does the right to silence apply to the motor highway act?
If you are pulled over you can be compelled to give your license and registration, you have no requirement to speak outside of that but they might get annoyed or suspicious and escalate the stop so it’s advisable to cooperate.
If a suspect repeatedly tries to invoke their right to silence, can the police officer still continue interrogation?
Yes, they can continue interrogating at length despite someone asserting their right to silence.
What are the exceptions to the right to silence?
You do not have a right to silence in situations where it would obstruct a police officer from carrying out their duties (ex. traffic stop ID and registration).
What is section 8?
Everyone has the right to be secure against unreasonable search or seizure, aka you have a right to autonomy over your stuff and personal correspondents.
What is the general rule for searching?
Police officers must have a warrant.
What are the exceptions to the search warrant rule?
Consent, low reasonable expectation of privacy, search incident to an arrest, plain view and exigent circumstances.
How does consent work as an exception to needing a warrant for a search?
If the police ask you if they can look (car, house, apartment etc..) and you say yes then they don’t need a warrant.
Can children consent to their own searches?
Parents consent for them.
How is consent and search iffy if you live with roomates?
If one person says no and one person says yes. Unless one isn’t on the lease, the no overrides the yes (also unless you’re not home, your door is open and your roommate says yes. This would only a allow a plain view search.
What is a reasonable expectation of privay?
The level of privacy that is expected by an individual in different places and contexts.
What are some contexts and their levels of REP?
Locked items are the highest level.
If something is laid out in plain view at home there is moderate expectation. Things discarded in public places are considered the lowest, things discarded outside home is also low.
No REP at border crossings, airports, and low on public transit.
How do plain view searches work?
If a police officer can see something in they are allowed to search, especially true in public places and vehicles. Includes the use of sniffer dogs bc the scent you emit is not considered hidden.
How do exigent circumstances work as an exception for search and seizure?
If a situation is very urgent or severe there will not be time to get a warrant, officers believe they need to search to protect people.
What are some circumstances that count as exigent circumstances?
Shootings, bomb threats, kidnapping of minors.
Can exigent circumstances justify no-knock warrants?
Must have significant reason to believe one is in immediate danger.
What section of the charter covers for unwarranted search in exigent circumstances?
Section 1, the reasonable limit to freedoms bc police may need to violate some freedoms to protect people.
What case legitimized the use of FLIR?
Tessling case 2004, thought he was growing weed but didn’t have enough evidence. Used magnetic thermal imaging to detect heat.
How was FLIR legitimized?
Because the device can be operated off of the private property and only measures something not protected by REP.
What happens if evidence is obtained illegally? What section of the charter legitimizes this?
It may be excluded from trial if its use would bring the justice system into disrepute. Section 24(2)
What are the conditions necessary for a search to be reasonable as held in R. v. S.A.B. (2003 SCC 60)?
- must be authorized by law
- law itself must be reasonable
- manner in which the search was carried out must be reasonable
What section of the charter explains what to do if a right is violated?
Section 24 (2) set out in Grant 2009 (remedy section of the charter)
What is the Grant test and what are the steps?
Test to figure out if evidence collected unlawfully should be excluded.
- Seriousness (like was it excessive force or just a technical error? were police acting in good faith?)
- Impact of breach on accused
- Society’s interest (how reliable is the evidence and how relevant is the evidence to the case?)
What is section 9?
Everyone has the right not to be arbitrarily detained (including psychologically) or imprisoned.
What was the Grant Case? Problem? Outcome?
Mr.Grant, young Black man, was approached by police officers in a high crime area bc he was “looking shady”. They asked him for ID and if he had anything on him (which he did and admitted it). The problem was that the police had begun detainment as soon as they approached him and thus they should’ve told him his right to silence. The outcome was that the police made a mistake but it wasn’t enough to exclude the tangible evidence.
In what circumstances has the SCC decided search warrants are required?
- If there is going to be secret recording of conversations by state agents
- in cases involving video surveillance
- for perimeter searches of residential premises (past the curb is private)
- before the installation of tracking devices
What is the definition of detention?
Police officer assumes control over the movement of a person by a demand or direction that may have significant legal consequence and that prevents or impedes access to legal counsel.
What is the timeline of being informed about the reason for your detention?
Does not have to be immediately but sooner rather than later, maximum 24 hours.
What is the timeline of being informed about the reason for your arrest?
Must be immediately
what is psychological detention?
True legal obligation not to walk away from a police officer or agent of the state.
Where does the power to arrest come from?
Criminal code and other federal statutes and provincial legislation (such as motor vehicle acts).
What are the reasons an arrest can be made?
prevent a crime from being committed, terminate a crime from being committed or compel an accused person to attend trial.
Is it common or not to be formally arrested if accused of a crime?
Not very common, less than 5% of accused. It is really only common for violent or very serious offences or if the person seems like they might flee.
What is needed in order to make an arrest? What are the things that need to be proven?
An arrest warrant is needed, in order to get that must convince justice of the peace that what you’re saying is true and there is probable cause for the crime.
What contexts are exceptions to the arrest warrant rule?
When someone is caught committing an offence, reasonable belief that someone committed an indictable offence, belief that a person is about to commit an indictable offence, anti-terrorism act allows to arrest on suspicion of terrorism.
What is an information?
A written statement sworn by an informant, normally a police officer, alleging that a person has committed a specific offence. Given to the judge to try to get an arrest warrant (i.e. laying an information).
What is an arrest warrant?
A document that permits a police officer to arrest a specific person for a specified reason
What is section 10?
The right to counsel provision. Means that on arrest or detention everyone has right to:
a. be informed of reasons
b. access counsel without delay and be informed of that right
c. have validity of detention determined by habeas corpus and be released if not lawful.
What is the most debated part of section 10?
b. right to counsel and to be told of that right
What are the details of section 10 b?
Be told you have right to counsel, have swift access to counsel, be given an opportunity (provide phone and number if you don’t have a lawyer) before questioning, rights are triggered again if the level of the sentence increases, if you’ve just been detained then you should be let go at end of interrogation.
What is granted by section 10 c?
THe right to challenge your detention in front of a judge and be released if detention is not found lawful.
What are the issues with the legal aid system?
The bar is very low so its not available to all low income people, there are not enough of them, they are rushed, most often they just take a plea (90-95% in US), you can be arrested for not paying fines even if you have no money.
What level of government control legal aid systems?
Provincial
What is section 11?
An person charged with an offence has the right to a) be informed without reasonable delay of the specific offence. (but it doesn’t have to be immediately so the definition is a little gray)
What power did the charter give to accused?
The right to challenge the actions of the police.
