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Flashcards

Criminal Procedure I

Kally Ho English 200 cards

Cards in this deck (200)

  1. 1What are sources of police power?Statues - Criminal Code (powers), Police Services Act (Duties/Obligations), Controlled Drug and Substances Act, etc. Charter is used to limit their power
    Common Law - English/Canadian precedents, statutory interpretation
    Directives from Bureaucrats - Police manuals, Crown prosecution manuals, etc
  2. 2What is the Waterfield Test?1) Did the police conduct represent prima facie interference with someone's liberty or property? (if yes...)
    2) Did the police conduct fall within the general scope of any duty imposed by statute or recognized at common law? (if yes...)
    3) Did the conduct represent a justifiable exercise of the powers associated with the duty?
  3. 3What are factors to consider in the Waterfield test, and which case is it from?R v Dedman + R v Simpson
    The duty being performed
    The extent to which some interference with individual liberty is necessary to perform the duty
    The important of performance of that duty to the public ood
    The liberty being interfered with
    The nature and extent of the interference
  4. 4What is the standard and burden of proof of the Waterfield test?This is a subject/objective assessment
    The burden of proof is on the crown
  5. 5What is the Waterfield test for?Waterfield is only used when the Court is trying to assess the validity of a new police power that a court has yet to identify
  6. 6What is the R v Clayton and Farmer test for?It is used to assess the lawfulness of a roadblock
  7. 7What is the R v Clayton and Farmer test?Basically the Waterfield test, but at the third question, consider:
    The seriousness of risk to individual or public safety with the liberty interests of the members of the public must be balances by considering the following factors:
    The nature of the situation
    The seriousness of the offence
    The information known to the police about the suspect or crime
    The extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope
  8. 8What is s9 of the Charter?Everyone has the right not to be arbitrarily detained or imprisoned.
  9. 9What are the different types of detention?From R v Grant:
    1) Physical detention
    2) Psychological detention (type 1) - When one is required to comply with the police (eg. Breathalyzer test and other roadside stops)
    3) Psychological detention (type 2) - When someone "submits or acquiesces in the deprivation of liberty, reasonably believing that the choice to do otherwise does not exist"
  10. 10What is the test for psychological detainment?R v Grant
    1) Would a reasonable person in the circumstances have felt that they had to comply with the police? (objective test)
    a) the circumstances -> whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focused investigation
    b) the nature of the police conduct: language; physical contact; place where interaction occurred; presence of others; duration of encounter
    c) the particular characteristics or circumstances of the individual where relevant - age, physical stature, minority status, race, level of sophistication
    2) Did the person subjectively feel that they were detained? (subjective test)
  11. 11When after detainment must 10a) and 10b) rights be read?R v Suberu
    They must be informed of their rights "immediately" upon the beginning of their detention
  12. 12When is detention not arbitrary?R v Grant
    Detention is not arbitrary if:
    1) it is authorized by law (statute, CC, common law); and
    2) the law authorizing it is not itself arbitrary (either common law power created by the court, or the law is constitutional)
  13. 13Where is the test for determining whether police detention/detainment is justifiable from?R v Mann; Mann test
  14. 14What is the Mann test?1) Did police conduct represent prima facie interference with someone's liberty/property? Was this person actually detained?
    2) Did the police conduct fall within the scope of any duty imposed by statute or recognized at common law? What was the duty? is the detention not arbitrary?
    3) a) Where there reasonable ground to suspect, considering the totality of circumstances? (a clear nexus that the individual is connected to a particular crime [R v Nesbith]; and that the detention was necessary.) b) Was the officer subjectively acting based on those ground when they detained the person?
  15. 15What is the standard and standard of proof of the Mann test? Who is this burden on?Subjective/Objective, BOP, burden on the Crown
  16. 16What is s8 of the Charter?Everyone has the right to be secure against unreasonable search or seizure
  17. 17When is there a reasonable expectation of privacy?R v Cole - eletronics
    R v Spencer
    1) What is the subject matter of the search?
    2) What is the nature of the claimant’s privacy interest in the subject matter?
    [Personal? Territorial? Informational? - Secrecy, Control, Anonymity]
    R v Buhay
    3) Did the claimant have a subjective expectation of privacy?
    4) Was the expectation objectively reasonable, as viewed in the totality of circumstances?
  18. 18What is the criteria for assessing the totality of the circumstances of the objective reasonability of a search?R v Buhay
    The accused's presence at the time of the search
    Possession or control of the property or place being searched
    Ownership of the property or place
    Historical use of the property or item
    The ability to regulate access, including the right to admit or exclude others
    Existence of a subjective expectation of privacy
    The objective reasonableness of the expectation
  19. 19What is standard of proving REP and who is this burden on?BOP; accused
  20. 20Can the police take blood from the front seat of a vehicle?R v LeBlanc; yes
  21. 21Can the police take the tissue from a waste bin in a motel where an undercover cop had met with a suspect specifically to surreptitiously gather DNA?R v Love; yes
  22. 22Can the police take cigarette butts discarded during an interview with the police?R v Arp; yes
  23. 23Can the police take a discarded tissue that was compelled and thrown away while the suspect was detained at the police station?R v Stillman; no, this is a violation of s 8
    The guy was trapped at the police station, and could not dispose of the tissue in any way other than by effectively giving it to PO. He was also compelled to participate in the creation or discovery of the self-incriminating evidence.
    **His lawyer had also explicitly stated that he would not provide a bodily sample
  24. 24Is there an REP in sniffer dog searches?R v Kang Brown
    Yes; sniffer dog searches constitutes a s8 search
    But PO must have a reasonable suspicion (more than mere suspicion, less than RPG)
  25. 25Can the police seize something in plain view without a warrant?Yes, BUT:
    The officer must be in the location/place lawfully (R v Buhay)
    The item must be in plain view that does not need further inspection and is illegal on the face of it (R v Law)
  26. 26What is the criteria for consent to a search?R v Wills
    A) There was a consent, express or implied;
    B) The giver of the consent had the authority to give the consent in question;
    C) The consent was voluntary, ie. it was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
    D) The giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent (full appreciation of what is to ensue);
    E) The giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
    F) The giver of the consent was aware of the potential consequences of giving the consent (understand jeopardy)
  27. 27When is a search prima facie reasonable?Hunter v Southam
    1) It must be pursuant to a warrant (s.487/488)
    2) The warrant was authorized by a neutral and impartial judicial officer under oath
    3) PO established reasonable and probably grounds to justify the search (ie crime/evidence)
  28. 28When are warrantless searches reasonable?No, warrantless searches are presumptively unreasonable and the burden in on the Crown to show that the search was justified BOP
  29. 29When are warrantless searches found to be reasonable?R v Collins
    1) They are authorized by Law
    2) The law itself is reasonable
    3) The manner in which the search was carried out was also reasonable
    (Were there RPG to believe that the search was necessary in the totality of circumstances? Was the search carried out in a reasonable manner?)
  30. 30When is a frisk search incident to lawful arrest justified?Cloutier v Langlois
    1) Given there is no duty to search, that it is still necessary
    2) The search had a valid objective connected to the LAWFUL arrest (protection the police/public/accused; preventing the accused from escaping; and securing evidence related to the alleged crime
    3) The search must not be conducted in an abusive fashion
  31. 31For ALL warrantless searches, what is the standard and who has the burden to justify it?Crown; BOP
  32. 32When is a more invasive warrantless search incident to a lawful arrest justified?R v Caslake
    1) It must have been objectively reasonable that the search might achieve a valid objective (objectively reasonable hunch)
    2) The searching officer must subjectively have been acting pursuant to this valid objective (can't rely on a legit purpose when it wasn't the reason for which they conducted the search)
  33. 33When is a more invasive search truly incident to arrest?R v Caslake
    Where there is a valid purpose for the search and where the subject of the search has some nexus to the offence
  34. 34Does distance and time frame preclude the validity of a search incident to an arrest?R v Caslake: Not automatically
    Distance and time do not preclude validity of search incident to arrest of a vehicle
    Delays beyond a reasonable time are not decisive, but will produce an inference that the search was not incident to arrest
  35. 35Can cars be searched incident to an arrest?R v Caslake, R v Rao
    Cars can be searched incident to arrest as long as Caslake test is met. Since cars are mobile and can be taken away by the accused/a friend, it is impractical to get a warrant for them
  36. 36Can bags/knapsacks be searched incident to an arrest?R v Martens; R v Mohamad; R v Kang-Brown
    Yes, as long as the search is incident to arrest and Caslake test is met
  37. 37Can bodily samples be searched incident to an arrest?R v Stillman
    NO - too invasive, PO can get a warrant, info can tell PO more than what is necessary for law enforcement purposes
  38. 38When are safety pat-down searches justified incident to detention?R v MacDonald
    Safety pat-down searches incident to arrest are justified when PO have reasonable grounds to believe (RPG) that the search is necessary to eliminate an imminent threat to the safety of the public/police, and that the search is carried out reasonably.
    PO must have been subjectively acting to ensure safety
    Search is not conducted abusively
    (But to detain someone, PO only needs reasonable grounds to suspect)
  39. 39What are safety-pat down searches for?R v Mann / R v MacDonald
    For weapons ONLY; authority for a search stops where the search for weapons is finished
  40. 40What is the standard for a safety pat-down search incident to detention, the standard of proof, and who is this burden on?Subjective/Objective; BOP; Crown
  41. 41Is whether a search is justifiable the only consideration?R v Aucoin
    No, we must also consider whether the search was necessary. Where there other reasonable means in the situation so that a search could have been avoided?
    You can't create necessity for a search
  42. 42Can your car trunk be search incident to investigative detention?R v Lee
    Yes; searches during investigative detention can extend to the trunk of a vehicle if reasonable (also consider totality of circumstances on a subject/objective basis)
  43. 43Can the cabin of your car be search incident to investigative detention?R v Plummer
    Yes; searches during investigative detention can extend to search of the cabin of a vehicle (also consider totality of circumstances on a subject/objective basis)
  44. 44When are strip searches justified incident to arrest?R v Golden
    1) It was conducted pursuant to a lawful arrest
    2) The search was incident to the arrest
    (conducted to find evidence relation to the reason of the arrest; ensure PO safety by finding weapons)
    [subjective]
    3) RPG justifying the need to perform a strip search, in addition to the RPG for the arrest
    [objective]
    4) The search was not conducted abusively, or for the purpose of humiliating the arrestee
  45. 45Where can strip searches incident to an arrest be conducted?R v Golden
    Strip searches incident to an arrest should be conducted at the police station, except where there are exigent circumstances (a strip search is conducted only if its necessary)
    There must be additional RPG to justify a strip search in the field
  46. 46What is a list of factors to assess the constitutionality of a strip search?Conducted in a manner that respects the health and safety of all
    Was the search authorized by a supervisor?
    Search conducted by someone of the same gender
    Fewest officers present as possible
    Minimum force
    Conducted in private
    Conducted as quickly as possible
    Arrestee is never fully undressed
    No physical contact
    Arrestee is given option to remove/secrete object him/herself
  47. 47What is the standard of proof for a strip search conducted incident to arrest, and who is this burden on?BOP; Crown
  48. 48When are strip searches justified in a pre-trial incarceration and regular prison setting?R v Muthuthamby
    The law does not say that a short term detainee can never be strip-searched, but it required that there be valid and articulable reasons for doing so
    R v Flintoff
    Strip searches cannot be done as a matter of routine, and it has to be considered whether the detainee is really going into the prison population
  49. 49When is a warrantless entry into dwellings justifiable in the case of 911 calls?R v Godoy
    PO are authorized to enter into a private dwelling without a warrant where they have PRG to believe that an occupant is in distress and that entry is necessary to protect the life and safety of the occupant
    If it can be reasonably done w/o entering the home, then PO may not enter the house.
    PO authority for being in private property in response to a 911 call ends there. A warrant is required for any other purpose
  50. 50Can a Confidential Informant be used to hit RPG to justify a search or arrest?R v Debot
    Yes, but CI's have to be:
    Compelling - clear, specific, from a person who has insider knowledge
    Credible - Motivation of the informant? Outstanding charges of the informant? Financial inducement of the informant?
    Corroborated - does police investigation corroborate material evidence/criminal allegations in the tip?
  51. 51How are the CCC factors of a CI to be assess?Assessment of CI is based on totality of the circumstances - weaknesses in one area can be made up by strength in others
  52. 52What is a Garofoli Application?A "Garofoli Application" refers to the defence motion to exclude evidence collected under a search warrant. Before a party can make such an application, they must have standing, which requires that there be an established Reasonable Expectation of Privacy.
  53. 53How does one initiate the procedure for a review of warrants/wiretaps? [Opening a sealed packet]R v Garofoli
    1) Application made to TJ
    2) Cross-examining an affiant
    3) Seeking to have the identity of an informant revealed (balance relevant of identity to the accused's case against the prejudice to the informer and the public interest in law enforcement)
    4) Opening the sealed packet and any redactions the Crown might want to make w/ TJ's approval
  54. 54What is the standard of review for a warrant?R v Garofoli
    Where TJ find that, on the material evidence before the authorizing judge, there was no basis upon which that judge could have been satisfied that the preconditions for granting a warrant existed
  55. 55What are the preconditions/general constitutional requirements of granting a valid search warrant?Hunter v Southam
    1) Based on objective RPG
    2) Established under oath via an affidavit
    3) To believe that a specific offence has been committed AND there is evidence to be found at the place of the search
  56. 56What is possession on a personal computer?R v Morelli
    Possession of an image in a computer means possess of the underlying data file, not its mere visual depiction
  57. 57What is the privacy interest in a personal/work computer?R v Cole
    REP in the information contained on these computers, at least where personal use is permitted or reasonably expected (ie. work computer)
    Ownership of property is a relevant consideration, but is not determinative
  58. 58Can computers/cellphone searches be conducted while exercising a location warrant?R v. Vu
    No - specific prior authorization to search computers/cell phones is required to search these things as part of a location search. PO can seize a computer if it is reasonably thought that the computer contained the sort of information the warrant authorized them to look for.
    Manner of computer search must also be reasonable - can only search the files or application required for them to achieve their objective
  59. 59What is the standard for obtaining a location warrant that allows PO to search computer that are found in the location?R v Vu
    The issuing justice must be satisfied that the PO have RPG to believe that any computer discovered in the location will contain evidence of the offence
    No need to establish RPG that there will be a computer, but PO should disclose this if they do believe it to do the case
  60. 60When are cellphone searches incident to arrest justified?R v Fearon
    1) The arrest was lawful
    2) The search is truly incidental - PO have subjective reason based on a valid law enforcement purpose to conduct the search, and the reason is objectively reasonable
    (protecting PO/public/accused; preserving evidence; discovering evidence/locating suspects in situations where the investigation will be stymied or significantly hampered if cellphone not searched)
    3) The nature and extent of the search are tailored to the purpose of the search
    4) PO take detailed notes of what they have examined on the device and how it was searched
  61. 61Can a general warrant be issues for wiretaps?R v TELUS Communications Co
    A general warrant should not be issued if another provision in the CC is available to authorize the technique used by PO
    General Warrant - s. 487.01
    Wiretap Warrant - s.186
  62. 62Is there REP in IP addresses and subscriber information?R v Spencer
    Yes; the request for the name corresponding to Spencer's IP address was a search - PO needs warrant
  63. 63What is the test for REP?R v Spencer
    1) What is the nature of the privacy interest protected?
    2) What is the privacy interest to be protected?
    [Personal? Territorial? Informational? - Secrecy, Control, Anonymity]
    R v Buhay
    3) Subjective Expectation
    4) Objective Reasonableness
  64. 64Is there REP in the name associated with a phone number?R v Khan
    There is no REP in the name associated with a phone number
  65. 65Is there REP if defendant was using an internet account under someone else's name without their consent?R v Caza
    Lack of permission in the circumstances of this case (accessing child porn) is sufficient to render any subjective expectation of privacy that the defendant may have had objectively unreasonable
    It is conceivable that accused may have some interest if the facts were different.
  66. 66What are the dangers of IP address searches?Viscomi v Attorney General of Canada and Ontario
    That 1) the IP address will violate privacy interest, as well as 2) lead to illogical inferences that the subscriber is the one who committed the online crime, when it could have been anyone using that computer
  67. 67What constitutes an arrest?R v Whitfeld
    1) the actual seizure or touching of a person's body with a view to their detention
    2) The pronouncing of "words of arrest" to a person who submits to the arresting officer
  68. 68Are there specific words that must be used when pronouncing "words of arrest"?R v Latimer
    PO do not actually have to say "arrest"; the words/actions should be looked at in light of the totality of the circumstances, to determine whether the accused should reasonably have understood that they were under arrest
  69. 69Who can a peace officer arrest without a warrant?s.495(1)
    a) A person who has committed an indictable offence or who on RPG, a PO believes have committed an indictable offence - R v Storrey
    b) A person who PO finds is committing a criminal offence (I/S) - R v Biron; R v Roberge
    c) A person who PO has reasonable grounds to believe that a warrant of arrest or committal is in force within the territorial jurisdiction in which the person is found - Frazier v Purdy
  70. 70Who can't a peace officer arrest without a warrant?s. 495(2)
    PO can't arrest a person without a warrant for;
    a) s. 553 indictable offence
    b) a hybrid offence
    c) a straight summary offence
    d) PO believes on reasonable grounds that it is in the public interest to establish the person's identity; secure/preserve evidence; prevent the continuation/repetition of the offence may be satisfied without arresting the person
    e) PO has no reasonable grounds to believe that if he does not arrest the person, the person will fail to attend court in order to be dealt according to the law
  71. 71What is the standard for arrest without a warrantR v Storrey / s. 495(1)
    1) that the PO was subjectively acting on RPG that a person has probably, or was probably about to, commit an indictable offence
    2) That an objectively reasonable person would have believed that the person charged was probably guilty of the crime imputed
  72. 72Does there need to be a prima facie case for conviction for an arrest without a warrant?R v Storrey
    It is not required to establish a prima facie case for conviction before making the arrest, IF subjective/objective + objectively justifiable test is met.
  73. 73What is the procedure for an arrest with a warrant?s 504 - laying of information
    s 507 - an arrest warrant/summons is granted
    [a summons is sufficient unless there are reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused - s. 507(4)]
  74. 74What are reasonable and probable grounds?Nelles v Ontario
    An honest belief in the guilt of the accused based upon a full conviction, founded on reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
  75. 75What does "finds committing" mean?R v Biron
    Finds committing means apparently committing - meaning that you don't need to be found guilty in order for the power to arrest to be lawful
  76. 76Can private citizens arrest people?s. 494(1) / R v Biron
    Anyone can arrest:
    a) A person whom he finds committing (or apparently committing) an indictable offence
    b) A person who, on reasonable grounds, he believes has committed a criminal offence/is escaping from and freshly pursued by persons who have lawful authority to arrest that person
    s. 494(2)
    The lawful owner/person in possession of property may arrest without a warrant if they find someone committing a criminal offence on or in relations to that property
    a) Arrest at that time
    b) Within a reasonable time and the person believes on reasonable grounds that its not feasible for PO to make the arrest)
  77. 77What should a citizen do after completing a private arrests. 494(3)
    They shall forthwith deliver the person to a peace officer (as soon as is reasonably practical in the circumstances)
  78. 78What is the procedure for an arrest in a dwelling house?R v Feeny
    You need a warrant to enter the dwelling house for the purpose of an arrest
    1) You need reasonable grounds for the arrest; and
    2) Reasonable grounds to believe that the person will be found at the named address
    ...
    3) When conducting the arrest, proper announcement has to be made.
    At the minimum, request admission and have admission be denied before using force to enter
    [This may only be avoided in exigent circumstances]
  79. 79Who's burden is it to disprove the lawfulness of an arrest made with a warrant in a dwelling house, and what is the standard of proof?BOP; The accused [s. 495(3)]
  80. 80Under what section of the Criminal Code do you apply for an Entry for Arrest warrant?CC s. 529(1)
    No warrant needed if exigent circumstances but RPG for arrest and that the person is in the house - CC s. 529.3(1)-(2)
  81. 81What are the exigent circumstances that allow for an arrest at a dwelling place without a warrant?s. 529.3(2)(a)-(b)
    a) RPG to suspect imminent bodily harm or death; or
    b) RPB to believe that evident will be imminently loss or imminently destroyed
  82. 82When can a PO omit announcing their presence before entry into a dwelling place for the purposes of conducting an arrest?s.529.4(1)
    Judge or JP may authorize PO to enter the welling house without prior announcement if they are satisfied by information on oath that there are RPG to believe that prior announcement would
    a) expose PO or another person to imminent bodily harm or death
    b) result in the imminent loss or imminent destruction of evidence related to the commission of an indictable offence
  83. 83What are the different types of false confessions?R v Oickle
    Stress Complaint - situation is so stressful or uncomfortable that people will say whatever the interrogator wants just so the interrogation can end
    Coerced Complaint - PO intimidates or physically batters you into confessing OR the PO promise you things in exchange for confession
    Non-Coerced Persuasive - PO convinces you that you actually did it, and you become confused
    Coerced Persuaded - Persuaded that they did it through coercive methods
  84. 84What are the PO's three trump cards when it comes to Interrogations?1) R v Oickle - affords POs great latitude in extracting a confession without offending the confession rules respecting voluntariness
    2) R v Singh - allows POs to continue the endurance contest between the detainee and interrogator despite repeated assertions of right to silence
    3) R v Sinclair - permits the police to deny a second consultation with counsel regardless of the length of the interrogation unless there is a significant change in circumstances
  85. 85What is the Common Law Confessions Rule?R v Oickle
    The confession/statement made to a PIA must be voluntarily made
  86. 86Who does the CLCR applies to?The rules apples to "persons in authority" as subjectively but reasonable perceived by the accused - must have the carrot-stick power of the state
  87. 87What if the CLCR is breached?it will result in the automatic exclusion of evidence
  88. 88What is the effect of involuntary confessions on subsequent confessions/derived confessions?R v SGT
    Statements should be excluded if either:
    1) The tainting features which disqualified the first confession continued to be present; or
    2) the fact that the first statement was made was a substantial factor contributing to the making of the second statement - ie. "but for" the first, the second wouldn't exist
  89. 89What are the factors to consider when determining the voluntariness of a subsequent/derived confession?1. the time span between statements
    2. advertence to the earlier statement during questioning in the subsequent interview
    3. discovery of additional information after completing of the first statement
    4. the presence of the same POs during both interviews
    5. other similarities between the two set of circumstances
  90. 90What about involuntary confessions and physical evidence?Court have historically admitted both the physical evidence as well as the portion of the confession that the evidence corroborates, but in some contexts the evidence is excluded under s.7 and 24(2)
  91. 91What is the test for CLCR voluntariness?R v Oickle
    1-3 to be considered together, 4 separately
    1) threats, promises, or inducements
    2) by oppressive circumstances
    3) lack of an operating mind
    4) methods (trickery) that would shock the conscience of the community
  92. 92What does the Crown have to prove to establish voluntariness in a confession?R v Oickle
    That the will of the accused was not overborne by x, y, or z. Crowns do not have to prove that x, y, or z did not happen at all
  93. 93Who has the burden to prove voluntariness of a confession and what is the standard of proof?Crown; BARD
  94. 94What is an "operating mind" for CLCR?R v Whittle
    The accused must only have sufficient capacity to understand what they are saying and that the evidence may be used in proceedings against them
  95. 95If PO refuses to accept the accused's right to silence, does it lead to a finding of involuntariness?R v Singh
    Maybe, repeated assertions may be give to the argument that the statement violated s.7/CLCR if the confession is not a product of the accused's free will, but TJ is entitled to deference
  96. 96Can a confession that adheres to the CLCR still be found to violate s. 7?R v Singh
    Where a statement has survived an inquiry into voluntariness, a charter challenge alleging that the statement was obtained in violation of the pre-trial right to silence under s.7 cannot succeed.
  97. 97Are confessions entered into trial automatically?A voir dire must be held if the statement is made to a police officer unless it is waived by the accused
    The accused must request the voir dire for a statement that was made to someone the accused saw as a PIA - onus on accused to raise the issue of voluntariness
  98. 98What happens at a voluntariness voir dire?Defence must discharge an evidentiary burden (AOR) on the person in authority issue
    Crown then must prove BARD that the receiver was not a person in authority; or that the statement was voluntary
  99. 99Must PO record the confession?R v Ahmed
    Not necessarily fatal if PO do not record a confession, recording is just the better practice. In most circumstances, the failure to record will render the confession suspect.
  100. 100What must PO caution suspects/detainees before interrogation?a) their right to counsel
    b) their right to remain silent
    c) the fact that their statement(s) maybe used against them
  101. 101What is s. 7 of the Charter?Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
  102. 102What does s. 7 have to do with confessions?Principle against self-incrimination
    Right to silence
  103. 103When does the s 7 right to silence apply?The right to silence only applies when you are detained or in custody. There is no protection from s7 against undercover agents infiltrating your gang other than preventing them from actively eliciting statements from detained suspects
  104. 104Does the police have to stop questioning a suspect when they assert their right to silence?R v Singh
    No - there is only a problem is you are rendered an involuntary speaker under CLCR
  105. 105When is the elicitation of statements forbidden?R v Herbert
    1) the person eliciting the statement is a state agent
    2) the elicitation takes place while the suspect is detained
    3) the elicitation is active rather than passive
  106. 106What is the difference between CLCR and a s. 7 protection?Only CLCR applies before the suspect is detained/arrested
    Only s. 7 protects the accused when undercover state agents actively elicit information.
    Only s. 7 applies when the accused does not think they are speaking to a PIA
    Only s. 7 protects against statutory compulsion and derivative evidence
    Different burden: s 7 (accused onus, violation BOP), CLCR (crown onus, voluntariness BARD)
    Different remedies: s 7 [s 24(2) analysis], CLCR (exclusion of statement)
  107. 107Does right to silence apply whenever the accused speaks to an undercover agent?R v Herbet
    The right to silence is not infringed when agents behave as they normally would in their adopted role - you would need active elicitation for s. 7 to apply.
  108. 108What is the standard of proof for s. 7 application re: a confession and who has the burden?BOP; The accused
  109. 109What is the standard of proof for CLCR re: a confession and who has the burden?BARD for voluntariness; Crown
  110. 110What is the remedy for a s.7 infringement or a finding of involuntariness under CLCR?S. 7 - goes to 24(2) to see if evidence would be excluded
    CLCR - evidence is automatically excluded
  111. 111What is a Propser Warning?R v Propser
    When the PO advises the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.
  112. 112When must a Prosper Warning be given?While the warning is not required in all cases, it is required in circumstances where ‘“a detainee has asserted the right [to counsel] and then apparently change[s] his mind’ after reasonable efforts to contact counsel have been frustrated”.
  113. 113What is s. 10 of the charter?Everyone has the right on arrest or detention
    (a) to be informed promptly of the reasons therefor;
    (b) to retain and instruct counsel without delay and to be informed of that right; and
    (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
  114. 114What is a "reasonable opportunity" for the accused to speak to counsel for legal advice?Basically requires privacy and a phone - detainees must be "reasonably diligent" in exercising this right
  115. 115What must the Crown prove if a detainee "waived" their right to counsel?a) The detainee indicated clearly that they no longer wished to talk to a lawyer and
    b) Made this decision with full knowledge of their rights and consequences
  116. 116When is a detainee entitled to a second consultation with counsel?R v Sinclair
    A detainee is only entitled to a second consultation with counsel where there is a material change in circumstances resulting from:
    1. New procedures involving the detainee (line ups, polygraphs, etc.)
    2. A change in jeopardy facing the detainee
    3. There is reason to believe that the first consultation was deficient - advice was not understood
  117. 117Does counsel have to be present during a police interrogation?R v Sinclair
    No RTC present during a police interrogation
  118. 118When is a Mr. Big confession admissible?R v Hart
    1. Mr. Big investigations are presumptively inadmissible - the Crown must prove that its probative value/reliability outweighs its prejudicial effect (moral and reasoning) on a BOP
    2. Accused may also invoke the Abuse of Process doctrine - misconduct that offends the community's sense of fair play and decency, basically coercion; prove on a BOP
  119. 119What are examples of Abuse of Process?Coercing a confession using violence or threats
    coercing a confession by preying on the vulnerabilities of the accused
    Gaining a confession using overwhelming financial incentives
    Endangering the accused
    Etc.
  120. 120Who has the burden of proving Abuse of Process and what is the standard of proof?The accused; BOP
  121. 121What are the remedies of a Mr. Big confession that is found to have an Abuse of Process?Exclusion of evidence (NO 24(2) b.c NO charter violation)
    Stay of proceedings, etc
  122. 122What are the different types of releases from the Police station?All can be with or without conditions:
    s. 496 - Notice to Appear (for those not arrested)
    s. 498(1)(a) - Summons
    s. 498(1)(b) Promised to Appear (for those arrested without a warrant)
    s. 498(1)(c) - Police Recognizance (with or without sureties/undertakings)
    s. 498(1)(d) - Cash Recognizance
    499(1)(a) - Promise to Appear (for those arrested with a warrant)
    503(2.1-2.2) - Additional conditions
  123. 123When does a bail hearing take place after an arrest is made?s. 503(1)
    a) where a justice is available within a period of 24 hours after the person has been arrested or delivered to the PO, the person shall be taken before a justice without reasonable delay and in any event within that period
    b) where a justice is not available within a period of 24 hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice ASAP
  124. 124What is the difference between an Information and an Indictment?Information is for OCJ (s. 581)
    Indictment is for SCJ (s. 581)
  125. 125Why is an information/indictment important?It is the charging document and gives the court jurisdiction over the accused and the matter
  126. 126What is included on an information/indictment?1. Name of the person [581(1)]
    2. Date
    3. Jurisdiction of Offence
    4. Name of alleged victims
    5. Offence(s) charged with
    6. Key aspects of the allegations
    **Can also list address/contact info of accused
  127. 127Who writes the information? Are all the accused's charges in one information?Informations must be drafted by an Officer and issued by a JP
    Multiple charges must be kept separate - each count can only apply to a single transaction
  128. 128Who writes the indictment? Are all the accused's charges in one indictment?After the Preliminary Inquiry, if the accused goes to the SCJ, the Crown writes up an indictment
    Multiple charges must be kept separate - each count can only apply to a single transaction
  129. 129What charter right is engaged the moment an information is laid?Clock starts ticking for 11b) when the information is laid
  130. 130How does one amend or quash an information?s. 601
    If the PO drafting the information makes a mistake, the Crown applies to amend the information or it can happen on consent (this is almost always permitted since there is little prejudice at this point)
    If the Crown makes a mistake and doesn't notice until it's too late, the court can decide whether:
    a) the amendment shouldn't be permitted because it would cause too much prejudice to the accused; or
    b) the amendment should be allowed, as the prejudice would be minimal
  131. 131What are the different courts in ON?ONCJ - bails, pretrial, prelims, trials for summary/some indictable offence (not 469/SCJ election)
    ONSCJ - The trial for most indictable offences are held here
    ONCA - Hears appeals from ONSCJ and OCJ
    Federal Courts - Hold trials for some quasi-criminal matters not found in the CC, also drugs, tax, and IRPA offences
    Federal Court of Appeal - takes appeals from the Federal Court
    SCC - hears appeals from Court of Appeals
  132. 132What is a 469 Offence?Offences that have to be tried before the SCJ with a jury under s 11(f) because the penalty is over 5 years (unless with consent of D/C s473)
    Reverse onus for bail hearings [s 522(2)].
    To have bail they must bring a bail application to SCJ.
    s47 treason
    s49 alarming Her Majesty
    s 51 intimidating Parliament/legislature
    s 53 inciting to mutiny
    s 61 seditious offences
    s 74 piracy
    s 75 piratical acts
    s 235 murder
  133. 133What are summary offences?Minor offences w/ max penalty of $5k or 6 months in jail (straight)
    Or 18 months jail (super)
    All are tried in OCJ judge alone
    No prelim
  134. 134What are indictable offences?More serious offences
    Greater penalties
    Requires a prelim unless defence waives or is tried at OCJ
    Right to jury trial only if max penalty is 5 years or more
  135. 135What kind of trials can defence elect?OCJ judge alone trial
    SCJ judge alone trial (with or without prelim)
    SCJ jury trial (with or without prelim)
  136. 136What is an Absolute Jurisdiction offence?s. 553 offences, you are always tried in OCJ judge alone, no prelim, max pen. is always less than 5 years
    UNLESS: where there are several charges, some of which must be tried in the SCJ, the OCJ can waive jurisdiction and allow SCJ to try all the charges
  137. 137What is a hybrid offence?Crown can elect to proceed summarily or by indictment
    Two different sentences depending on election
    If the code is silent on the penalty for summary conviction, we automatically assume $5k/6 months
  138. 138What happens when co-accused elect differently?Usually it's a no.
    If not severed, the one who requests a jury trial always prevails under s 11f
    The one who requests a prelim also always prevails under s. 536(4.2)
    (Also same for SCJ v OCJ)
  139. 139What is the presumption for a Crown election and what is the limitation period for election?Presumption is Indictable (Summary for YCJA)
    If 6 months have passed, Crown must elect for Indictable because the limitation for proceeding summarily has passed - unless the accused waives the 6 months period
  140. 140When must prosecution of summary offences begin?Prosecution for summary offences must begin within 6 months of the crime
  141. 141Is there a time limit for Crown election?No, but should elect in a reasonable time so defence can make decisions
    (or D forces an election on record at a prelim proceeding/set date)
  142. 142Why would defence want an earlier crown election?B/C summary conviction bail hearings are always Crown onus
  143. 143When is a bail hearing reverse onus?When it falls under 515(6) to be dealt with in OCJ - they're all indictable offence (but different kinds) or indictable breach of bail on indictable offences
    469 Offences are also reverse onus under s. 522(2), but must be dealt with in SCJ
  144. 144Does D have to show up for a hearing for a summary offence?No, lawyers can appear on behalf of clients for summary offences
    Agents can appear on behalf of an accused on for a summary offence (max penalty less than 6 months/$5k)
    A designation of counsel must be filed for indictable/hybrid no election offences for paralegals/articling students to act as agent for routine matters in OCJ
  145. 145What is Preferring Direct Indictments?s. 577, 565(2)
    With AGs consent, Crown can prefer a direct indictment. The case goes straight to a jury without a prelim (though D can re-elect to have a judge alone trial)
  146. 146Can a Crown's decision to prefer direct indictment be reviewed?No. Crown does not need to disclose their rationale nor is it reviewable by the court absent evidence of abuse.
  147. 147In what time frame does the defence have to elect their trial method?CC is silent, but each court has its own rules for timing. Defence has to make a tentative election when it files its Statement of Issues prior to the prelim.
    Defence is required to elect, at latest, at the prelim
  148. 148Can the defence re-elect their trial method?[s 561(1)] If you elected not OCJ and wish to change your election, you can do so:
    a) before/after completion of prelim with consent of Crown to be tried at OCJ
    b) on or after 15th day following completion of prelim, as of right, anything not OCJ
    c) on or after 15th day following completion of prelim, with Crown consent, any mode of trial
    (2) if elected OCJ or did not request prelim, can, as of right, re-elect 2 weeks before first day of trial, OR after that time with Crown consent
  149. 149What are hybrid offences before election?Hybrid offences are deemed indictable before election
  150. 150What charge is heard where?Summary - Trial at OCJ
    Hybrid - Wait to see what crown elects
    Indictable - Is it a 553 offence? → Then still in OCJ. Is it a 469 offence? → Then always judge and jury SCJ. If neither, then defendant can choose what they want:
    Can have trial at OCJ
    Can have trial at SCJ with a jury
    Can have trial at SCJ without a jury
  151. 151What does OCJ do?Summary offences
    553 Absolute Jurisdiction Offences
    554 - Indictable offences that are not 469 or 553, if the defence so elects
  152. 152What happens if the accused does not elect?s. 565
    There will be a deemed election. If defendant does not election, they are deemed to have elected Judge and Jury before SCC
  153. 153What if the accused flees in the middle of their trial?s 598
    If the accused flees in the middle of their trial, they can be trial in absentia.
    If they come back, they no longer have the right to a jury trial.
  154. 154What is the limitation period for an indictable offence?There is no limitation period
  155. 155What is s. 11 of the Charter?Any person charged with an offence has the right
    (a) to be informed without unreasonable delay of the specific offence;
    (b) to be tried within a reasonable time;
    (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
    (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
    (e) not to be denied reasonable bail without just cause;
    (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the max punishment for the offence is imprisonment for 5/+ years;
    (g) not to be found guilty unless, at the time of the act or omission, it was an offence under Canadian/international law or was criminal according to the general principles of law recognized by the community of nations;
    (h) not to be tried twice for the same offence
    (i) if found guilty and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment
  156. 156What is reasonable bail?Not just talking about the amount of money, the terms/conditions of bail must also be reasonable
  157. 157What is just cause?Bail should only be denied when there is good reason to do so, as to not infringe on liberty when a person is still presumed innocent
  158. 158What is R v Antic?Must apply ladder principle to bail - Reinforces s. 515(1)
    Release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.
    512(2)(e) is only available if the accused if out of province or 200km away from where they'd be in custody
  159. 159When is a bail hearing to occur?s. 503(1)
    where not released at a PO station, person charged must be brought before a justice within 24 hours of arrest for a bail hearing, or if a Justice is not available, then ASAP
  160. 160Does a bail hearing have to take place within 24 hours after arrest?No. They have to be brought before a justice within 24 hours, but the accused can adjourn their bail hearing
    Delay allowed - for police investigation, crown investigation, or if Crown wants to 524 the bail (revoke outstanding bail due to breaches) to get paperwork together.
  161. 161How long can a justice adjourn the bail hearing without the accused's consent?s. 516(1)
    A justice can adjourn proceedings and remand the accused to custody in prison by warrant, but for no more than 3 clear days unless with the accused's consent
  162. 162Who conducts a bail hearing?JPs and Judges can, though now in ON except for in CP and the courthouse in Ottawa, JPs conduct bails
  163. 163Difference between JP and Judge?JPS - appointed by AG pursuant to the Justices of the Peace Act, under s. 15 of JPA, they must have 10 years of full time experience, a university degree or diploma
    JPs do bails, remand courts, peace bonds, hear POAs, authorize warrants/summons, and swear an information from the police or the information of a private complaint
    Judges - Judge can make decision on facts and legal issues – ie. trials/sentencing, judge must have been part of the bar for 10 years in good standing (s. 3 of judges act)
  164. 164Can articling students/paralegals do bail hearings?No because bail hearings are extremely important. People who get bail look better in court; can do community service and get counselling, resulting in a lighter sentence; don't often plead guilty
    BUT agents are allowed to appear for the accused in straight summary bail hearings
  165. 165When can a Crown do bail hearings?A Crown must have 6+ months in trial-level court before doing bail hearings
  166. 166Where are bail applications made?Bail applications are made in the SCJ, and then are usually heard in the OCJ
  167. 167Are all bail hearings heard in the OCJ?Most bail hearings take place in the OCJ.
    s522(1) - s 469 offence bails are to take place in the SCJ
  168. 168Can there be publication bans at bail hearings?s. 517
    Toronto Star Newspaper Ltd v Canada
    Mandatory publication ban at bail hearings is constitutional. This prevent trial by press - and for potential jury member not to reach conclusions based on untested evidence.
    To protect the presumption of innocence
  169. 169Can evidence be allowed at bail hearings?s. 518
    Justice can ask witness questions
    Accused can't be cross examined re: the offence in question unless they testified about it
    Can use prior convictions/ CR
    Can receive any evidence that is credible or trustworthy (hearsay is admissible)
    Usually includes a reading of the police synopsis and background facts of the case
  170. 170What is the standard of proof for a bail hearing, and who is this burden on?R v Villota - BOP
    Crown onus unless for an offence listed in 515(6), which is reverse onus
  171. 171Can conditions be imposed on bail?s. 515(2)
    If Crown fails to show cause for detention, but does show grounds for release conditions or with sureties, the justice may impose them
  172. 172Must an accused have a surety to receive bail?R v Villota
    There is no legal requirement that a surety be present in court and testify in order for bail to be considered. This is especially so where the Crown bears the onus of establishing why continued detention is justified
  173. 173Are reverse onus bails unconstitutional?R v Pearson
    Reverse onus bails do not violate s7 or s11 because:
    They only relate to a few offences;
    Crown burden would not lead to proper results for these particular charges (ie drug dealers would flee, but hard for Crown to prove under 515(10)(a) primary grounds);
    The burden on the defence is not so high that it cannot be reached
  174. 174What if there are multiple offences and they have different onuses for bail?You deal with them separately at the bail hearing, but ovbs if denied bail on one charge, then have no bail
  175. 175What are the grounds for detention?s. 515(10)(a)-(c)
    a) primary grounds - if detention is necessary to ensure accused's attendance in court
    b) secondary grounds - if detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice
    c) tertiary grounds - if detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances
  176. 176What factors are to be considered under the primary grounds for bail?Nature of the offence
    Amount of readily accessible money to use while fleeing
    Prior convictions for flight
    The length of potential penalty (longer = higher risk of absconding)
    Strength of case against the accused (stronger = high risk of absconding)
    Ties to the community - family, friends, employment, religious community, residence, bail program
    ** R v Sabatini - you are not a flight risk just because you are not native to the jurisdiction
  177. 177What factors are to be considered under the secondary grounds for bail?The accused has to be a threat to public safety (not just high change of shoplifting)
    R v McGowan - Crown must prove that there is a substantial likelihood of future criminality/offending.
    Criminal record of accused
    Accused already on bail
    Accused already on probation
    Nature of offence
    Strength of Crown's case
    KEY FACTOR: presence/absence of good surety and/or plan of release
    Is there a strong plan of release?
    How well can the surety supervise the accused?
    Is the surety capable of controlling the accused?
    Will the accused's surety actually call the police if a condition of release is broken?
  178. 178What factors are to be considered under the tertiary grounds for bail?i) the apparent strength of the prosecution's case
    ii) the gravity of the offence - max/min pen [R v St Cloud]
    iii) the circumstances surrounding he commission of the offence, including whether a firearm was used
    iv) the fact the the accused is liable, on conviction, for a potentially length term of imprisonment or, in the case of an offence that involved, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of 3+ years
  179. 179Will sureties lose their money if the accused breaches bail?Canada v Horvath
    It depends. The surety's due diligence should not be considered to be irrelevant. A forfeiture application cannot be just about the accused breaching bail - it is unfair to ignore the surety's efforts
  180. 180Does 515(10)(c) only apply to extreme cases?R v St Cloud
    515(10)(c) is not limited to exceptional circumstances, to unexplainable crimes, to the most heinous of crimes or to certain classes of crimes. This is not a precondition of its application.
    It is, having regard to all the circumstances, whether there is a reasonable collective expectation that bail must be denied to maintain the public confidence in the administration of justice
    The public being reasonable, dispassionate and properly informed about the values expressed in legislation
  181. 181What circumstances of the offence are to be considered under the tertiary grounds for bail?R v St Cloud
    That the offence is a violent, heinous, or hateful one
    That it was committed in the context of DV, gang activity, or terrorist activity
    That the victim was a vulnerable person ( ex. children, elderly people, etc.)
    A/M factors, and extent of the accused's participation
    Etc
  182. 182What is the difference between "just cause" and "reasonable bail"?R Morales
    Bail must not be denied unless just cause exists.
    Just cause: imposes constitutional standard on the grounds under which bail is granted or denied
    Reasonable bail: refers to the terms and conditions
  183. 183What are the circumstances in which bail maybe denied?R v Hall
    The circumstances in which bail may be denied must be narrow and specific.
    Initial phrase of 515(10)(c) - "on any other just cause being shown" - is unconstitutional b/c judges cannot have broad discretion to deny bail
  184. 184What are the different forms of release on bail?s. 515(2)
    a) Undertaking (w or w/o conditions)
    b) Own recognizance (w or w/o conditions)
    c) Recognizance with a Surety (w or w/o conditions)
    d) Recognizance with Deposit by the Accused (w or w/o conditions)
    e) Case Deposit (w or w/o sureties or conditions)
    R v Antic - 512(2)(e) is only available if the accused if out of province or 200km away from where they'd be in custody
  185. 185Can sureties withdraw from their obligations?Yes sureties can withdraw
  186. 186What conditions can be imposed on bail?s. 515(4)
    Reporting
    Remaining in province
    No communication with Complainant
    Deposit Passport
    Any other condition that justice deems necessary for the safety of victim and/or public
    515(4.1) weapons condition mandatory with certain offences unless justice finds it is not required in the interests of the safety of victim or other persons
    515(4.12) non communication clause term with specific offences
    515(12) can order detainee to abstain from communicating with victim/witness or other person
  187. 187What is it to 524 a bail?s. 524 - revoking bail
    Where justice is satisfied on RPG that the accused:
    (1)(a) - has contravened or is about to contravene release terms
    (1)(b) - has committed an indictable offence after release
  188. 188What happens if a bail is 524-ed?First bail is cancelled, and then a new bail hearing will take place for all offences
    A hearing must take place to determine whether the person did breach a term of their release or if there are RPG that an offence was committed while on release
  189. 189When a bail is 524, who is the onus on in the new bail hearing?Burden on accused to show why detention is not justified within the meaning s 515(10)
  190. 190When can one apply for a bail review?s 525 provides for automatic administrative review after 90 days for indictable offence (not 469), and 30 days for summary offences
    This is a normal check up - there won't be an actual bail review unless the defence raises some sort of actual issue
  191. 191What is the basis for bail review?Two basis for review:
    1) New evidence/change in circumstance
    2) Error in law (which leads to bail de novo)
    [R v St Cloud] 3) where the decision is clearly inappropriate, ie. it considered some factors too heavily and others too lightly
  192. 192What are bail review hearings like in ON?ON has bifurcated hearing - must convince SCJ that JP made an error in law in the decision for detention/release, and if they agree, they will go straight to a new bail hearing
  193. 193Who can apply for a bail review?520 - Accused app
    521 - Crown app
    523(2)(c) - Bails can be reviewed at any time with Crown consent
  194. 194What documents are need for a bail review?Rule 20 in SCJ Rules
    Notice of application - must state if accused is attending
    Need judge's order
    Service of application 2 clear days prior to the date fixed for the hearing
    Affidavit of applicant
    Affidavit of proposed surety
    Transcipts
    Copy of all exhibits from original hearing
  195. 195What is the basis for a bail pending appeal? What is the standard and who has the burden?679 for ONCA appeals
    816 for summary convictions
    Applicant has burden to prove on BOP that:
    1) the appeal is not frivolous
    2) the applicant will surrender in accordance with terms of order
    3) that detention is not necessary in the public interest
  196. 196What is different about bail pending appeals v. regular bails?Two major differences:
    1) accused has already been convicted, so their likelihood of flight is much greater now
    2) accused is no longer presumed innocent (as they were convicted) so there is a much stronger public interest in having them behind bars
  197. 197Which court has inherent jurisdiction? Which are creatures of statue?SCJ - Inherent Jurisdiction
    ONSCJ is unique among the courts of the province: it is a court of “inherent jurisdiction”, meaning that it does not derive its existence from legislation, as the other courts of the province do
    ONCA - Creature of Statute: Courts of Justice Act
    ONCA has the jurisdiction conferred on it by this or any other Act, and in the exercise of its jurisdiction has all the powers historically exercised by the Court of Appeal for Ontario.
    ONCJ - Creature of Statute: Courts of Justice Act
    A provincial judge has the power and authority of two or more justices of the peace when sitting in the ONCJ and shall exercise the powers and perform the duties that any Act of the Parliament of Canada confers on a provincial court judge when sitting in the Ontario Court of Justice.
  198. 198What is the purpose of a preliminary inquiry?1) to ascertain whether the crown has sufficient evidence to commit the accused to trial
    2) for the accused to discover and appreciate the case before them at trial
  199. 199What is the purpose of a discovery hearing?1) for the accused to discover and appreciate the case before them at trial
    2) to get the testimony of some witnesses under oath on record for impeachment purposes later on, or if the witness can't attend the trial
  200. 200Why would you want a prelim?D: to get witnesses to testify under oath; to gather information for Charter app; to gather information not in disclosure; to assess the case against client
    C: to test witnesses; to have witnesses testify under oath; gather information from defence since no disclosure under Stinchombe; to delay trial if co-accused absconds; to learn what each co-accused would say at trial

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Flashcards on Criminal Procedure I, created by Kally Ho on 03/08/2018.
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