Chapter 11-14

Question	Answer
Right against self incrimination 2pts	-a person's right not to be compelled to be a witness against himself in criminal or quasi-criminal proceedings -cannot draw adverse comment on refusal to testify
Conscriptive evidence	-evidence obtained as result of accused being COMPELLED to participate in the CREATION/location of evidence
Testimonial evidence	-evidence provided by a person in the form of words
Non-testimonial evidence 2pts	-evidence not in the form of words from a witness -typically an object
Derivative evidence	-evidence derived from BREACH of accused's rights
Confession Rule 3pts	–RULE aka Ibraham rule -made to a PERSON IN AUTHORITY -not admissible unless VOLUNTARY.
Oikle Rule 3pts	- statements to PERSONS IN AUTHORITY - onus on Crown prove VOLUNTARY - no police TRICKERY unfairly takes away accused's right to silence.
Crown onus voluntary confession T.O.O.	-must show will of accused not overborne by: a. THREATS or promises, b. OPPRESSIVE circumstances, or c. lack of an OPERATING mind.
Person in authority	-person in position to INFLUENCE the prosecution against an accused
When can a person decline to participate in a civil proceeding on basis criminal charges pending? 3PT TEST	1. judge must determine PURPOSE of civil proceeding. 2.If sole purpose CONSCRIPT evidence, subpoena for civil matter quashed 3.If purpose LEGITIMATE public interest concern, not to conscript accused's testimony, suspect/accused required to testify.
Problems with Conscriptive Evidence 3PTS	1.UNRELIABLE– physical/emotional DURESS 2. Compels person to reveal innermost THOUGHTS–breach of sec 2 charter 3. Shifts responsibility to prove case to accused – violates PRESUMPTION OF INNOCENCE
Oakes test -test to determine Charter right JUSTIFIED s. l 2PTS	-MEASURE limiting right must be SUFFICIENTLY IMPORTANT -MEANS REASONABLE/demonstrably justified
Sufficient Importance –Part 1 Oakes Test	-Crown must show OBJECTIVE of statute sufficiently important to override Charter right
Proportionality Test-2nd part of Oakes Test	1.RATIONAL Connection- must be rationally connected to objective sought. 2. MINIMAL Impairment- must impair the right as little as possible. 3. PROPORTIONALITY- must be proportionality between effects of measures limiting the right and objective referred to in the threshold requirement.
4 Principles applicable to s. 8 PRINCIPLE 1	1.First, reasonable expectation of PRIVACY. Second, if he has such an expectation, was SEARCH by police conducted reasonably.
4 Principles applicable to s. 8 PRINCIPLE 2	2. reasonable expectation of privacy is TBD on basis of TOTALITY of circumstances.
PRINCIPLE 3 FACTORS to be considered in assessing TOTALITY of the circumstances may include, but are not restricted to:	a) PRESENCE at time of search; b) POSSESSION/control of property/place searched; c) OWNERSHIP of property/place; d) HISTORICAL use of property/item; e) Ability to REGULATE access, including right to admit /exclude others from place; f) Existence of subjective expectation of PRIVACY g) Objective REASONABLENESS of expectation.
4 Principles applicable to s. 8 PRINCIPLE 4	4.If reasonable expectation privacy, inquiry must proceed to 2ND stage to determine IF search conducted in reasonable manner.
Plain view doctrine	-rule police officer may act without search warrant if evidence in plain view
Reasonable expectation of privacy test -test used by courts to determine whether police search was lawful	1.Was accused's expectation PRIVACY reasonably held? 2. was SEARCH reasonable
Collins Test (search w/out warrant) 3pts	1. search must be AUTH by law 2. law that auth search must itself be REASONABLE 3. search must be CONDUCTED in reasonable manner
Courts identified # of purposes for excluding evidence wrongfully obtained. These include: 5 pts	1. RESTORE parties to position in before breach 2. STOP police from engaging in improper practice 3. EDUCATE police and public 4. ENSURE courts continue to be held in high regard 5. RECOGNIZE/protect core group of basic human rights.
Components of exclusionary remedy 3pts	1. ANYONE whose rights infringed/denied 2. May APPLY to court of competent JURISDICTION 3. If evidence obtained from infringed right will be excluded if having regard to circumstances admission would bring administration of justice into DISREPUTE.
Factors court consider in determining whether the administration of justice was brought into disrepute. 3pts	1. Would admission of evidence affect FAIRNESS of trial? 2. Is BREACH SERIOUS or technical ? 3. What would be IMPACT on REPUTATION of justice system if evidence excluded?
Oral evidence	-evidence given verbally by witnesses
Oath	-promise made on Bible/holy book to tell truth in court
Solemn affirmation 2pts	-promise to tell the truth in court - has the same value as an oath
Real evidence	-TANGIBLE evidence put before trier of fact to admit -doesn't DISTORT facts/create bias
View 3pts	-RELOCATION OF COURT to site of alleged offence - judge may order view when evidence too lrg to bring into courtroom -or when valid reason for trier of fact to see site
Documentary evidence 5pts	-any DOC including writing, video, film, tapes, and photographs, presented in court for reference by trier of fact -to be admitted must be AUTHENTICATED -can auth on CONSENTof other side -witness can validate under oath -defined rule 30.01 RCP 321 CCC
Best evidence rule 2pts	-largely OUTDATED rule that original doc must be presented in evidence if it is available -now COPY can be admitted
Admissibility of photos/videos using 3 criteria questions similar to qual police notes	1. Accuracy 2. Fairness & absence of potential to mislead 3. Verification on oath of witness that they are what they purport to be.
Spoliation	-destruction, mutilation, alteration, or concealment of evidence
Subpoena	-formal, legal doc requiring witness to appear at hearing in criminal case
Summons	–formal legal doc requiring witness to appear at hearing in a civil case
Competence	- legal ability to give oral evidence in hearing
Capacity 2pts	- acceptable ability to OBSERVE & correctly recall observations/experiences -acceptable ability to COMMUNICATE observations to trier of fact
Responsibility	-ability to comprehend necessity of being truthful & consequences for not telling truth
Incompetent	-not permitted to give evidence
Compellable	-legally required to give evidence at hearing
Examination in chief	-questioning of witness by party who called witness -its object to bring out info will establish facts that litigant must prove to win case
Cross-examination	- questioning of witness by opposing counsel after examination in chief
Hostile witness	-witness called by party to give evidence but is uncooperative & responds with hostility to questions posed by counsel during cross
Adverse witness	-witness whose testimony shows her interests to be aligned with opponent - therefore likely to colour evidence in favour of opponent
Particularized indicia of reliability 2 pts	-specific details of circumstances that make evidence more likely to be true -for recanted statements
Circumstantial guarantees of reliability	-aspects of circumstances surrounding FORMATION of evidence enhance reliability
to testify witness must be 2pts	1. competent 2. compellable
children under 14 5pts	past-had to have corroborated evidence -understand necessity of truth present-removed from Can Evidence Act -section 16 presumes can testify -promise to tell truth
can't testify 2pts	-mentally unfit adults- not competent spouses-not compellable (unless safety at risk)
re-direct 2pts	-clarifying questions only -based on answers didn't anticipate
Impeach	-challenge with previous statements -discovery transcripts admissible
collateral fact rule	prohibits calling CONTRADICTORY evidence on IMMATERIAL facts.

Next up

Description

Resource summary

Similar

	Created by Penny-Ann Lupton almost 9 years ago