Crim LAw Block 3 Exam

Question Answer
Inculpatory statement A confession to a crime
Exculpagory statement A statment containing nothing incriminating
What is a confession? statment by an accused person made to a person in authority
A statement has 2 pillars what are they? 1. Voluntary 2. Free from Charter violation
3 fundamental rights under s.10 of the charter (everyone has the right upon arrest or detention). 1. To be informed promptly of the reason for arrest or detention 2. To retain and instruct counsel without delay 3. To be informed of the right to retain an instruct counsel without delay.
2 obligations under s.10 for officers to do; what are they? 1. Informational duties (The reason) 2. Implementational duties – dont mess with them until they spoke with a lawyer.
IS it important to make note of the responses, appearance and behaviour of the person arrested when reading Rights to Counsel? YES- make notes! Read from card
Waiver of RTC requires 2 things what are they? 1. full understanding of their right to counsel 2. full awareness of the consequences of waivering.
Does a person have the right to be afforded privacy? Yes – they don't have to request this! Only when lawyer is on the line.
Sec. 24 of the Charter says what? IF you fail to adequately provide right to counsel- statement may be excluded at trial.
2 Types of searches 1. With Warrant 2. without warrant
What is the ONUS of proof? Crown must demonstrate that a swearch without warrant though presumed to be unreasonable was actually reasonable. The ACCUSED must demonstrate that a search with warrant was actually reasonable.
S.8 of the Charter says what >? Everyone has the right to be secure against unreasonable search or seizure.
What is consent for a search? A person waives his/her rights afforded by the charter; knowing the consequences. Has to be expressly given (yes search me/area), or implied (head nod, gestures)
For a valid consent you need three things; what are they? 1. Volition (voluntarily given consent) 2. Knowledge (aware what they're providing permission for) 3. Scope- they actually have the authority to do so (they own the house).
How do you get consent? Always get consent in writing or on video so later it cannot be denied; use your notebook or some shit.
What is reasonable expectation of privacy? Courts look at "totality of cirumstances' . Q's to ponder:a. Do they own the property being searched? b. Does the person live at the place being searched?c. Is the person present during searches?d. history of the person using what your looking?
Privacy continuum…explain park bench-garbage-car-locker-office-medical records-pocket-home-person this goes from public to private left to right.
3 Privacy zones entrenched in the Charter 1. Personal Privacy – frisk/pat down, strip/skin search, body cavity, bodily substances (blood, hair saliva) greatest degree of search2.spatial privacy -geographic area3. informational – medical records, banking records
A search and seizure must be reasonable by doing three things. 1. The search was authorized by law2. The law was reasonable3. The search was conducted in a reasonable manner.
Authorized by Law has many areas; what are they? 1. Exigent Circumstances – protection of life/property evidence/life.2. Abandonment-Garbage on roadside/not by house/hotel3.Implied license- knock knock approach no peeking
Search incident to Investigative detention; what are your limitations? A search is only valid for Officer Safety Purposes; must have justifiable fear for safety. Pat down
Search incident to lawful Arrest; what are your limitations? 1. Arrest must be based on RGrounds. If arrest is invalid; search is invalid.2. Ensuring the safety of the police and public3. Weapons, tools of escape, evidence.4. Other valid purpose.
What is reasonable prospect? IT IS not RG, it is finding evidence of the crime for which the person was arrested. EX. B&E, DRUG offence, robbery, you could search the whole vehicle to search for evidence.
Plain View Doctrine is…. Authorizes a warrantless seizure and is an exception to the rule requiring a search warrant before conducting a search. REQUIRESa. PO lawfully present b. discovery accidental c. value of obj immediately apparent.REMEMBER you cannot expand search.
Authorized by CODE has many areas; what are they? 1. Exigent circumstances s.487.11- evidence will be destroyed.2. Protection of life and property- enter private premises announcing yourself (presence,purpose, authority) 911 CALLS3 Forced Entry- s.529.3 RGTS/RGTB prevent harm/preserve evidence.
Hot pursuit or fresh pursuit 2 kinds Classic and Shadow
s.209.1 of the TSA permits what? To stop a driver for a.sobriety b. drivers licence/vehicle registrationc. mechanical fitness
Motor vehicle searches on a stop check; what can you search? Plain view, and at night with a flashilight. Can ask passengers to step out of vehicle. IF arrested, the search incident to arrest (EEW). IF detention; RTC given.
4 types of search 1.protective pat down 2. field search3. strip search4. body cavity search
4 rules of search 1.legal2. thorough3. methodical4. safe
3 basic tactical considerations on where to conduct a search 1. hostile environment2. poor lighting3. presence of the public
Strip search questions before you start peeling clothes off. 1. Conduct at police station, if not, why not?2. Health and safety of all involved? 3. Supervisor approved? 4. Gender the same?5.# of officers? 6. mininum force needed? 7. private area?8. Will it be quick>? 9. Looking at genitals and anus>?
Consent to search form 'I knows' x 7 1. IK dont have to let the police search 2. IK that the police are searching for evidence 3.IK that I can change my mind at any time 4. IK that w.e is found can be used in court 5. IK nobody has forced or pressured me 6. IK right to talk to a lawyer
What is a search? When a PO intrudes up on a person resasonable expectation of privacy!
What are the crucial issues involved in determining whether a reasonable expectation of privacy exists in a particular circumstance> 1.The persons presence at the time of the search. S.8 is a personal right and protects people, not places.2. There a poersonal interest in individual liberties such as privacry3. There is a public interest in unimpeded police invesitagations
DRiving offences- S. 219(1) Criminal neg causing death or bodily harm. Ex. 115km/hr car slamming into a pole with 4 dudes in a 50 km /hr zone.
Driving offences- s.220 Criminal neg causing death to another person
driving offence- s.221 criminal neg causing bodily harm to another person indic off. <14yrs
Driving offence- s.249 Dangerous driving hybrid- 5 years/summary
Driving offence- s.252 Failure to stop at the scene of an accident- means with a vehicle,vessel, person, cattle with intent to escape criminal liability. fails to give name, address, and offer assistance hybrid 5 yrs/ summary
Driving offence- s.252(1.2)(1.3) Failure to stop at the scence of an accident- causing bodily harm. straight indic <10 yrsIF they're dead , or were severly hurt then they died then its life in prison!
Driving offence- s.259 Driving while prohibited- alcohol key, or driving while disqualified. Hybrid 5 yrs/summary
Driving offence- s.249.1 Police Chase- not stopping at a reasonable time. Hybrid 5 yrs/summary.IF death or bodily harm occur. LIFE and 14 yrs respectively.
Driving offence- S.249.2, 249.3, 249.4 Street Racing- LIFE if caused death; <14 yrs if bodily harmif just racing- hyrbid 5 yrs/summary
The Canada Evidence Act 1. Applies to all federal matters including crim law2. Deals with whether a spouse can be called as a witness against his/her partner3. Deals with protection against self-incrimination4. Deals with obtaining evidence from a child witness
The Sask Evidence Act 2. Applies to all trial s for provincial matters3. Deals with whether spouses can be called to testify4. deals with the use of previous statements5. Deals with expert evidence
Evidence rules- Other federal statutes include 1.criminal code of canada2. Controlled drug and substances act3. YCJA
Evidence Common law include 1. best evidence2. rule against hearsay3. opinion evidence rule4. similar fact evidence rule
T or F- only evidence that is relevant at trial is admissable True
Relevant evidence ……does what> proves or tends to prove or disprove a fact in issue
Forms of evidence are (3) 1. Testimonial/Viva VOCE -most common ie. witnesses in court2. Documentary- written letters; reports viva voce someone describing the shit.3. REAL- physical objects or things- weapons, photos, property viva voce by witness
Other ways of classifying evidence (2) 1. Direct evidence- directly proves a fact in issue2. Circumstantial evidence- establishes other facts from which the courts can draw an inference that the fact in issue is true. ex. bloody knife; witness heard a shot, martha hold gun
The best evidence rule is 1. The best available evidence on any given issue is presented to the court- originals vs. copiesEXCEPTIONS- photos of drugs, bloody shirt, photos of injuries (ppl heal)
What is corroboration? This is evidence that: is independent; material evidence; implicates the accused. Usually confirms witness telling truth. ex I said I saw him rip a white shirt; piece of shirt is exhibit A
What is hearsay? exception to the rule that all relevant evidence is admissable. TELEphone game; second hand info.
HEARSAY EXCEPTION to the exception! is called a what? RES GESTAE statement- a sponataneous statement made so closely to the incident that is unlikely that anyone could have made it up. ex. no daddy no!!!! at the time of an bad pimp slap. witness could res gestae the PIMP;;;;also DYING DECLARATIONS
MORE hearsay evidence that is admissable (not res gestae) 1.declaration made in the course of duty2. statemtns made in the presence of the accused and assented to by him- ex. hey you robbed me; response yes i did.3. voluntary statements4.principled approach- is the hearsay evidence NECESSARY/RELIABLE?
HEARSAY- Principled approached KGB necessity component- the witness recants; the witness forgets; the witness gives shitty evidence at trial- basically formulating a shitball to be presented as flowers. Take a bunch of crappy statements and cross examine.
HEARSAY- KHAN approach USED when child not competent to testify, and too traumatic to testify. Dirty Doctor- mom had no motive to lie; story without pausing; child was not knowledable on sex; corroboration evidence; statement made asap.
OPINION evidence is when a witness may not express there own opinion in court regarding a matter which the judge or jury can form their own opinion without having any special knowledgge, exp or training. Unless- there experts ; or shit only they would know.
Evidence of the accused bad character is bringing up the accused past….dont do it.
Co-accuseds are not competent to testify for the crown IF TRIED TOGETHER T or F T
What is a compellable person> they can be forced to come to court through a subpoena
Robbery- 343(a)(b)(c)(d) (a)Using violence or threatening to use violence in order to steal from someone(b) use of violence- wounding, beating, striking or other personal violence before, during or after stealing(c) intent to steal- coincides with assault.(d)-WPN or imitat
Robbery and others- S.346 EXTORTION- trying to obtain something from someone by using threats, accusations, menacnes or violence. Ex. kidnap kid and threaten to harm if parents dont pay.
Robbery and others- s.279(1) KIDNAPPING- confine a person against their willl. Taken from one place to another. sme punishment as robbery.
Robbery and others- s.279(2) UNLAWFUL CONFINEMENT- same as kidnapping but with no transporting. HYBRID 10 yrs/summary
Robbery and others- s.279.1(2) HOSTAGE TAKING- hostage is when you take a person and confine, imprison, forcibly seize or dtains that person. LIFE, and 4 yrs if wpn is used
Robbery and others- s.351(2) DISGUISE WITH INTENT- facemask robbery- 10 years max
Robbery and others- s423, INTIMIDATION-cause person to stop them from lawfully doing.follow them, injury to property, use of violence or thereats, follow on highway; blocks or obstructs a highway HYBRID 5 yrs/ summary 5,000$ or 6 months
Robbery and others- s423.1 INTIMIDATIOM of justice participants- ex. member of leg assembly, prosecutor, judge or justice, juror, informant, peace officer, employee of the federal or provincial correctional service, parole supervisor. INDICtable – 14yrs
Definition of weapon anything used, designed to be used, or intended for use:a. in causing death or injury to a person; orb. for the purpose of threatening or intimidating someone
Definition of Firearm a barreled weapon from which shot, bullet, or other projectile can be discharged and capable of causing death or serious bodily injury. Includes frame or reveiver of the barreled weapon, or anything that can be adapted for use as a firearm.
Prohibited WEapons s.84(1) means knives taht open automatically by gravity or centrifugal forces or by hand pressure to buttons, springs or other devices in the handle of the knife.
Other prohibited weapons 1. tear gas or mace2. finger ring knives3. spiked wristband4. brass knucles
Restricted weapons any weapon, other than a firearm, that is prescribed to be a rest. wpn. exa. all handgunsb. long guns that have barrel less than 18.5inches, and capable of firing center fire ammo in semi auto fashion
Prohibited Firearms 1. assasin and street tools ex handguns barrel less than 4.13 inches and are .25 or .32 caliber2. sawed off guns intentionally3. any automatic firearm (not including bump fire)
Prohibited Devices 1 Any component, or part of a weapon, or accessory, that is prescribed to be a prohibited device; and2 any handgun barrel that is equal or to lass than 105mm3 silencers4 fancy ammo
Things that are not firearms 1. stress flare2. blunderbuss or replicas3. tranquilizer guns, or slaughtering devices4. slow projectiles ie potato gun
Firearm offence s.85 Use of a firearm in an offencewhile commiting an i offence other than crim neg, causing death, manslauther attempted murer, agg sex assuatl, assualt with wpn1st offecne- 1 year max 142nd offence- min 3 yrs max 14 yrs
Firearm offence s.86(2) Careless use- unsafe storeage, handling, contrary to regulations
Firearm offence s. 87(1) Pointing firearmDual 5 yr/ summary
Firearm offence s.88 Possession of a wpn or imitation for purpose dangerious to pulic peace. have to prove mens rea
Determining if device is a weapon. ask yourself this 1. What kind of an item is it>?2. WAs it intended for initially?3. What did the accused do with it?4. Why was it necessary?
Does a wpn have a purpose contrary to public peace. What did the accused intend to do with the wpn? Factors to consider 1. type of item- machete vs pocket knife?2. how was it acquired- stolen, found, purchased?3. Accused background4. time of occurence- day or night5. location- bar vs shopping mall6. circumstances surrounding possession7. nature of use of wpn-
When does carriage of a weapon for self defence purposes constitute possession of a wpn for a purpose dangerous to public peace? 1. competent or not?2. in engaging in conduct that is likely to provoke attack3. has a wpon that i not appropiate to be used to repel an attack (samurai sword)
Wpn offence s.90 Possession of a concealed weaponhas to be prohibited and must meet def of wpn, and the reason is was concealed is not material.
wpn offence- s.111 prohibition orderstopping a person from possessing wpns.
2 pillars for admissibility of a statement are 1.voluntarily given2. in compliance with the charter of rights
Voluntariness rule for statements a statement made by an accused to a person in authority is admissible in evidence at trial if the statement was made voluntarily
Types of void statements 1.Oppression-depriving2. Operating mind- drunk, mental illness physical trauma, emotional problems (teens)3. Threats or inducements- reid shit and giving hope, offers of help, appeals to conscience (spiritual), physical needs4. police tricks
Charter and statemetns which sections make statements void? s.7 right to silences.10(a) right on arrest or det to be advised why theyre under arrests.10(b) RTC without delay
Statements from youth- general rule of thumb make sure they understand what the fuck is going on.
ARSON- S433 Disregard for human life- LIFE
ARSON-s.434 DAMAGE to property-partial ownership or none at alli offence 14yrs max
ARSON-s434.1 Wholly or partyly owned and person property is threatented14 yrs
ARSON-s435(1) ARSON for fraudulent purposei offence max 10 yrs
ARSON- s.436 ARSON negligience- owner and ppl at risk bodily harmmax 5 yrs i offence
ARSON- s.436.1 ARSON possession of incendiary material5 yrs i offence
ARSON-s.437 FALSE alarm of fireDUAl hybrid 2 yrs/ summary or mischief s 430(1)(c or d)

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