Canadian Justice System Module 8 PDF

2023-03-14 Canadian Justice System Module 8 Issues for Police Investigative Detention, Arrest, Search and Seizure 1 Pretrial Issues Arrest or Detention s. 9 CCRF …no arbitrary detention… s. 10 CCRF Everyone has the right on arrest or detention: - reason - counsel - validity of detention 2 1 ...

2023-03-14 Canadian Justice System Module 8 Issues for Police Investigative Detention, Arrest, Search and Seizure 1 Pretrial Issues Arrest or Detention s. 9 CCRF …no arbitrary detention… s. 10 CCRF Everyone has the right on arrest or detention: - reason - counsel - validity of detention 2 1 2023-03-14 Pretrial Issues Investigative Detention (no arrest) - Importance of investigation & intrusion of person - “a reactive power dependent upon a reasonable belief that the detained person is implicated in a prior criminal act” 3 Pretrial Issues Investigative Detention (no arrest) - Must be connection between person and crime 4 2 2023-03-14 Pretrial Issues Investigative Detention - brief - general questioning Further… - Safety concerns allow non-intrusive search for weapons 5 Pretrial Issues Arrest - Reasonable grounds - Will it result in a conviction? - Beyond a reasonable doubt 6 3 2023-03-14 Pretrial Issues Arrest without warrant - peace officer s. 495(1) Criminal Code - Find a person committing a criminal offence - Reasonable grounds to believe – has committed or about to commit an indictable offence - Prior to laying an Information 7 Pretrial Issues The moment a person becomes a suspect police must give rights. Arrest by police: - Under arrest and reason for arrest - Touch / take physical control - Rights to counsel - Caution - Secondary caution 8 4 2023-03-14 Pretrial Issues Arrest with warrant - reasonable grounds to believe - committed crime, and - is evading police 9 Pretrial Issues Custodial interrogations - primary goal is to solicit a confession - voluntary is the key Crown must prove the it was voluntary for it to be admitted as evidence Voluntary confessions have a great impact on the future of the case and will usually lead to pleas of guilty 10 5 2023-03-14 Pretrial Issues Rights to Counsel - the right to contact counsel without delay - fully aware of consequences if waived - generally, end questioning until counsel - not required for subsequent questioning 11 Pretrial Issues Bail Reform Act – framework for release of accused - most will be released, unless - danger to society - risk to flee - “Show Cause” at bail hearing onus always on Crown to prove why accused should be held in custody 12 6 2023-03-14 Pretrial Issues “Reverse onus” – on the accused to show why he should be released - charged with indictable offence while on release - commits indictable offence nonresident of Canada - breach of release conditions - drug offence – trafficking, exporting, importing 13 Pretrial Issues Search & Seizure Search – intrusion of govt. representative into an individual’s privacy Seizure – exercise of control by a govt. representative over an individual and or item 14 7 2023-03-14 Pretrial Issues Searches with a warrant Generally a search warrant is required - person, place or thing (body, dwelling, car) 15 Pretrial Issues Searches with a warrant - swear Information before J.P. / Judge - reasonable grounds - place / person/ thing - list of items searched for - criminal offence / evidence Police may seize items not mentioned in warrant. 16 8 2023-03-14 Pretrial Issues Searches without a warrant What happens when police are chasing someone for a lawful arrest and the person runs into their home? - Police in “fresh pursuit” - enter a dwelling/place while in pursuit - continuous fresh pursuit & capture is a single act 17 Pretrial Issues 18 9 2023-03-14 Pretrial Issues Searches without a warrant What happens if there is a safety issue or an urgent need to get into the house? - Exigent circumstances – immediate action or aid, a time of extreme necessity - insufficient time to get warrant - Enter a dwelling to prevent bodily harm or death - Prevent imminent loss or destruction of evidence 19 Pretrial Issues Searches incident to arrest - common law authority - flows from arrest - automatic search of accused - search surrounding area - evidence - lawful arrest = lawful search 20 10 2023-03-14 Pretrial Issues Searches incident to arrest is for: Protection – police, public, accused Evidence – of offence, destruction Escape Identity - new More than “frisk” less than “strip” don’t bet on it. 21 Pretrial Issues Doctrine of Plain View (seize without warrant) - in plain view, or - entry is legal – warrant / invitation - police can seize illegal object if it is in plain view - arrest & charge - does not give authority to search 22 11 2023-03-14 Pretrial Issues Consent Searches Informed consent - authority to give consent - must be voluntary (freely made) - right to refuse - aware of the consequences 23 Pretrial Issues Legal Aid - govt. supported system - allows free legal services to those who cannot afford a lawyer - For criminal offences - Police must inform accused of availability eligibility for legal aid generally considers the individuals income, assets and number of dependents. 24 12 2023-03-14 Classification of Criminal Offences General classification – violent crime, property crimes, etc. Legal classification – indictable offences and summary conviction offences - hybrid or dual procedure offences - combines both Indictable & Summary Conviction Offences 25 Classification of Criminal Offences Summary Conviction offences – minor offences Indictable offences - more serious in nature All are criminal offences – all are federal offences 26 13 2023-03-14 Trial Procedures What Court will hear the charge: • Summary conviction offences - J.P. or judge - alone - appear in person or - by representative to plead 27 Trial Procedures What Court will hear the charge: • Indictable offences – 3 categories 1. Exclusive jurisdiction, s. 469, eg. murder, treason, piracy - Superior Court - judge & jury, unless permitted by Crown 28 14 2023-03-14 Trial Procedures What Court will hear the charge: • Indictable offences – 3 categories 2. Absolute jurisdiction, s. 553, eg. theft, fraud, possession - provincial court judge alone 29 Trial Procedures What Court will hear the charge: • Indictable offences – 3 categories 3. Election offences (by accused) - offences not in 469 & 553, eg. robbery, sexual assault, impaired driving, & - Dual Proc. if elected indictable - judge with/without jury (superior court judge) - judge (provincial court judge) 30 15 2023-03-14 Trial Procedures Preliminary Hearing - trials slated to go to superior court, - Exclusive/Election/dual - ind. Not automatic - must request – crown or defence - list of issues/witnesses to cover/question 31 Trial Procedures • Police investigate and charge but, Who has the final say as to whether it will go to trail? • Crown attorney - present all evidence to court - disclose all info to defence - impartial role - officer of the court 32 16 2023-03-14 Trial Procedures Crown attorney - proceed to trial - plea bargain - stay the proceedings - dismiss the charges 33 Trial Procedures Crown attorney – Screening Process - likely hood of conviction - physical evidence, confession, credible witnesses - Case priority – violent offender before vandal - Record of the accused - Nature/credibility of the witness 34 17 2023-03-14 Trial Procedures Plea Bargain – “any agreement by the accused to plead guilty in return for the promise of some benefit” - lenient sentence - reduced number of charges - type of charge - prior or during trial 35 Trial Procedures Plea Bargain - a joint submission - cost savings - frees up court time - prosecutor time 36 18 2023-03-14 Review A police officer is able to enter a dwelling house, without a search warrant, to prevent bodily harm or death. This is referred to as: a) b) c) d) e) fresh pursuit / hot pursuit exigent circumstances arrest with warrant reverse onus none of the above A police officer is legally in a dwelling house and inadvertently discovers good that could prove a charge. The officer may seize the goods without a warrant. T or F 37 Review Criminal offences include all federal offences that are: a) summary conviction offences b) indictable offences c) all of the above Treason, piracy and murder are considered: a) Absolute jurisdiction offences b) Exclusive jurisdiction offences c) Election offences Fraud, theft and possession are considered: a) Absolute jurisdiction offences b) Exclusive jurisdiction offences c) Election offences 38 19 2023-03-14 Review Absolute jurisdiction offences will be heard by a provincial court judge alone. T or F Other than upon initial arrest, eligibility for legal aid generally considers the individuals income, assets and number of dependents. T or F A joint submission for a plea bargain is made between the Crown and Judge. T or F Any agreement by the accused to plead guilty in return for the promise of some benefit” is referred to as: a) preliminary hearing b) plea bargain c) prosecutor screening process d) arraignment e) none of the above A person charged with a summary conviction offence may appear in court, in person or by representative to enter a plea of guilty or not guilty. T or F 39 20