week 4-5 Flashcards
section 9 of charter
everyone has right not to be arbitrarily detained or imprisoned
detention powers
s 31 (1)
- every peace officer who witnesses a breach of the peace is justified in arresting any person whom he finds committing the breach or who on reasonable grounds believes will breach
32(2)
- every peace officer is justified into custody any person who is given charge to a breach or in reasonable grounds believes has witnessed a breach
non-criminal detention powers
intoxicated in public (liquor law)
mental health act
other stat powers
statutory powers to detain (judges)
ss 515 abd 516
s 515 of criminal code
release order without conditions
when an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, make a release order in respect of that offence, without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made
s 516 if criminal code
release order with conditions
allows a justice to remand an accused to custody and adjourn proceedings
r v grant & detention
- unlawful detention is necessarily arbitrary
- lawful detentions are not arbitrary as long as the law authorizing the detention is valid
r v grant and psychological detention
determine whether the reasonable person in the indv circumstances would think they were detained
(when not physically restrained)
significant factors Grant to help them determine psychological test
- 3 officers surrounding him
- initial uniformed officer
-“keep hands in front of you”
CAN of suberu
A stop just to say “do u have any info” is okay
Brief stop is fine
reasonable person in the circumstances of the accused test (Le)
- circumstances giving rise to the encounter
- failure to explain why police entered property and started questioning affecting the reasonableness assessment - conduct of police
- entered property as trespassers and took control right away - particular characteristics or circumstances of indv
- appropiate to look at historic & social context of race relations
- only from perspective of the reasonable person, not from accused’s perspective
ancillary powers doctrine & detention
- Detention for investigate purposes can only occur if r + p exist
- detention must be reasonably necessary on an objective view of totality of the circumstances with a clear nexus between the indv to be detained and a recent or ongoing criminal offence
officer believe on r+p grounds that their safety is at prisk
can officers do a quick pat down search
yes
officer believe on r+p grounds that their safety is at risk
- cannot be too intrusive
rules for reasonable suspicion
Reasonable suspicion must be in objectively discernable facts, not a hunch
r v aucoin
detention in cruiser bc officer was scared he would disappear into crowd
that was unlawful and therefore doesn’t constitute the requisite basis in law to authorize the warrantless pat-down search
evidence was still admitted
3 factors in Lafrance
- how circumstances of the encounter would have been reasonably perceived by the indv
- nature of the police conduct throughout encounter
- where relevant, the indv age, physical stature, minority status and level of sophistication
detention must be…
reasonably necessary
search incident to investigative detention
- may bring circumstances where it would be relevant and tempting to search detaineee
- law enforcement with the right to perform a warrantless search incident to arrest to protect their safety and others, preserve evidence or discover evidence
individual arrest powers
s 494
- can arrest without warrant when comitting an indictable offence
- believing on reasonable grounds that one has comitted an offence
can happen on property too
citizen’s arrest and self-defence act SC 2012, c 9
owner or a person in lawful posession of property or a person authorized by the owner may arrest a person without a warrant if found comitting offence on or in relation to property
- make arrest at that time
or
- make arrest within a reasonabel time after the offence is committed and they believe on reasonable grounds that its not feasible for peace officer to make arrest
s 495
peace officer can arrest w/out warrant..
. 1. reasonable grounds to believe
- past and future indictable offences
- finds committing: summary conviction
- arrest without warrant for:
- summary, hybrid, 553, unless:
- public interest requires it (fail to appear, need to identify, secure/preserve evidence)
how is arrest effected
- “i am arresting you”
- reason for arrest
- touch person
- say words and take control of person
what is found committing?
apparently found committing = having r+p grounds to believe it’s being committed
- belief must be based on actual observation of the offence being comitted
charter 10a - reasons for detention/arrest
everyone has the right on arrest or detention..
a) to be informed promptly of reasons thereof
b) to retain and instruct counsel without delay and to be informed of that right
c) to have the validity of the detention determined by way of habeas corpus and to be released if detention is not lawful
habeas corpus
have the body
transfer custody to judge
change of Jeopardy
possibility of change of sentence, get a new warning
what are confessions taken with?
a grain of salt bc ppl confess for variety of reasons
when do whitfield arrests occur
- actual seizure or touching with a view to detention
- pronouncing of the words of arrest to a person who submits to the arresting officer
alternatives to arrest
- appearance notice
s 495(2), 496 - charge and request a summons
s 497 - release by officer in charge
s 498- summons
- promise to appear
- recognizance
What is a summons
requires a person to appear in court or respond in writing
charging
information (s 504)
the initial charge document in all cases
sworn statement by a person referred to as an informant (usually police)
sworn before justice/judge
spells out offence, date, place, accused
basis for trial/preliminary in prov court
process to compel attendance may or may not be issued
information - charge document
in BC, crown counsel = responsible for laying charges
starts after the police submit a written report to crown counsel (RTCC) containing a description of evidence and any recommended charges for the Crown’s review
reasonable expectation of finding guilt in long run
- r+p
charge approval
consider substantial likelihood of conviction and whether prosecution is in the public interest
who lays criminal charges
provincial prosecutors
federal deals with driving, indian act, income tax act
charge screening
- what material evidence is likely to be admissable
- weight to be attached to admissible evidence
- viable, but not speculative, defences
what is an indictment
formal written accusation that a person has committed a crime
indictment
done after info
- used in trials for sup court
- only issued after comittal for trial or at time of a decision to directly indict
- prepared by prosecutor
- sometimes require a judge’s order
what does an info include
initiates a court proceeding. It can be used to accuse someone of a crime, request a peace bond, or more
all on r+p grounds
all matters
- summary
- jurisdiction
- hybrid (can have indictment later)
how can u start pure indictable matter
- murder
-sedition - alarming his majesty
implementational duties
actions police must take when a person being detained requests to speak with a lawyer
provide reasonable opportunity to get advice
detention
restrain of liberty of varying duration where one can have access to legal assistance without delay
policr officer assuming control over movement of a person
psychological detention in grant
where indv has a legal obligation to comply with the restrictive request/demand or that a reasonable person would conclude by reason of the state that they have no choice but to comply
what does brydges stand for
proposition that police are required to inform legal aid
minimal inquiry into understanding
Make sure accused is understanding u when u give them rights
- “do you understand?”
Evidence may end up excluded if they don’t understand
simple rules
dont ask questions until detainee has spoken to council or had opportunity to do so
murder cases have…
automatic right to appeal at SCC
r v sinclair
charter does not mandate the presence of defence counsel throughout a custodial interrogation
after initial opportunity, additional opp will only arise where developments in the course of the investigation make this necessary
3 non-exhaustive categories of exceptional circumstances
- new procedures involving the detainee
- When anything changes with what u are doing - a change in jeopardy
- awareness the detainee did not understand the initial right to consult counsel
- When accused does not understand rights
european convention on human rights
article 6 - right to fair trial
requiring presence of legal counsel of the accused’s choosing during custodial interrogation
summary of implementational duties
- reasonable opportunity contact counsel
- privacy during contact with counsel
- cease questioning with accused has had a reasonable opportunity to consult counsel
- refrain from belittling accused’s counsel
- refrain from offering plea bargain without counsel present as that is likely an abuse of the plea bargain process
are you entitled to free counsel
no
you are entitled to free advice
do you have to free counsel all the way through trial
Rights to counsel for certain cases (family law)
○ If jeoprady you face is prison, entitled
If not prison, most likely will not get lawyer free of charge
waiver rules
- entails awareness of the consequences
Can’t waive right unless you fully understand consequences to do so
right to silence
no person shall be compelled to incriminate self
voluntary confession rule
Only voluntary confessions may be admitted
Held out by person of authority
Police officer, prison guard, parent, education
Confession come from operating mind
- Must know what doing/saying
voluntariness rule
crown must prove voluntariness of a confession beyond a reasonable doubt
absolute liability
- no defence
- sufficient fact
example = speeding
criminal law
must have mens reas and actus reus
rothmen case
encouraged police to use jailhouse tricks
3 sources for right to silence
- common law confession rule
- privilege against self-incrimination at trial
- s 10b rights is really about finding out about right ti silence
4 pragmatic limits on right to silence
- police questioning in absence of counsel is okay
- right to silence only applies AFTER detention
- rule does not affect voluntary statements made to cell mates
- police not actively eliciting info may receive statement s
limits on pre-trial right to silence
- narrative exception allows some othewise-inadmissible evidence to be admitted for limited purposes
- exception is meant to get big picture (the narrative) before trier of fact
- such evidence, even when it included hearsay testimony, is not hearsay in nature as it is not admitted for its truth
section 11 of charter
protects the rights of people accused of a crime. It includes the right to a fair and public hearing, the right to be presumed innocent, and the right to not be tried for the same offense more than once
what does compellable mean
person cannot be forced to testify in a court of law
accused is..
- non-compellable at trial
- but is competent
witness rights
testimony can’t be used against them
silence at trial
no adverse inferences may be taken from an accused remaining silent at trial
some minor qualifications exist like in relation to alibi evidence
confessions are…
hearsay statements and not admissible in court except in certain circumstances
what is a hearsay statement
- a person not there to testify
- made by the defendant
- is being tendered as proof of the contents of statement
voluntary confession rule
no statement made by an accused to a person in authority is admissible in evidence on behalf of the prosecution unless it is first shown to have been made voluntarily and was result of an operating minf
test for voluntariness
statements must not be induced by
- threat
- or hope of advantage (promise)
made or held out by a person in authority esp if using
- atmosphere of oppression
- or certain police tricks
must come from operating mind
who proves voluntariness of confession beyond a reasonable doubt
Crown
is there a common law requirement to provide right to silence
no
Skip
hope of advantage
- inducements are okay if not casually related
fear of prejudice
- inducements are generally okay as long as will is not overpowered
opression is not okay
other police trickery
police are not expected to play fair
can’t pretned to be legal aid lawyer
okay police behaviours when trying to get confession
- being persistant
- being accusatorial
- using lies
based on judge’s viewpoint
not okay police behaviours when trying to get confession
- being over hostile or aggressive
- acting in an intimidating manner
importance of a caution placed on a continuum
weight to be given the caution
low
- police question an indv or witness
medium
- police question a non-detainee suspect
high
- police question a detained suspect
lack of a caution is not fatal but is an important factir in determining voluntariness
mr big operations
1 similarity
- Get guy involved in more criminality and get paid for it
○ Not real, but makes them think he is
Moves way up, gets to meet Mr. Big
When confession is entirity of evidence = problem
3 concerns with mr. big operations
- risk of eliciting an unreliable confession
- risk that the suspect’s participation in simulated crimes might prejudice jury
- risk of police misconduct that might impact the reliability of a confession or in some instances amount to an abuse of process
r v hard 2 pronged solution
- addressing concerns with new common law rule of evidence
- presumptive inadmissibility that can be overcome only if crown proves on balance of probabilities that the probative value of the confession outweights its prejudicial effect - ## look at risk of police misconduct through the lens of abuse of process doctrine
examples of interrogation techniques (9) (reid)
- positive confrontation
- theme development
- handling denials
- overcoming objections
- procuring and retaining the suspect’s attention
- handling the suspect’s passive mood
- presenting an alt question
- detailing the offense
- elements of oral and written statements
more reid techniques
- tell suspect the evidence is stacked agaisnt them (make them believe their situation is hopeless)
- imply u have evidence, even if u dont
- dont let them deny guilt
- give suggestions that they’ll be better off in future if they confess now
- interrogator shifts the blame from suspect to some other person or circumstances
- give alternative questions, each of which implies guilt
murder cases have…
automatic right of appeal at SCC
what is obiter
anything a court in a judgment that is not essential to the outcome of the judgment
things said along the way
persuasive but not binding
Positive confrontation technique
- The investigator informs the suspect that they are the focus of an investigation.
- The investigator presents evidence that shows the suspect’s guilt.
- The investigator tries to shift blame away from the suspect.
- The investigator tries to minimize denials from the suspect.
- The investigator tries to move the discussion toward alternatives.
- The investigator asks the suspect an “alternative question” that offers two choices for what happened.
- The investigator expects the suspect to choose the easier option, but whichever option they choose, guilt is admitted
Theme development interrogation
creating a story to explain why a suspect committed a crime
- The interrogator tries to understand the suspect’s point of view
- The interrogator considers why the suspect might want to think they committed the crime
- The interrogator looks for an excuse that might make the suspect admit to the crime
- The interrogator presents a moral or psychological excuse for the suspect’s behavior
- The interrogator reinforces the suspect’s own justifications for the crime
