Law Studies 12 - Chapter 7 (Bringing the Accused to Trial)

it's another zav quiz! just missing "police rights on arrest" and "custody"

What must a search warrant include?

• correct address

• specific items to be searched/searched for, must be presented and accurate (mistakes could throw the warrant)

• a time limit that cannot be extended

What happens when there are mistakes in the search warrant?

It throws the warrant and it is unusable.

If police have a search warrant and the homeowner is not home, what can the police then do?

If there is no response at the door, police can break in (repairs will be covered by budget provision)

Can police search a person while they are conducting a search?

A person cannot be searched UNLESS charged/in possession of \*illegal alcohol\*, drugs and weapons (substances found during the search can lead to a search of the person) \*alcohol made without licence (moonshine)\*

What happens if a person agrees to be searched?

If person agrees to be searched, no warrant is needed (if police ask person, they have no warrant)

How do warrants affect bugs?

They don’t. A warrant is NOT needed for bugs to listen to conversations.

When is a warrant not required?

No warrant needed if there is a reasonable belief that there are illegal substances

When can cars be searched?

Cars can be searched if there is illegal alcohol inside.

Can a person be arrested based on suspicion only?

The police cannot arrest someone based on suspicion alone. There must be reasonable grounds to determine that a suspect has committed a specific offence.

When proceeding with an arrest, what are the three options police have?

1. Appearance notice

2. Arrest the suspect

3. Obtain a warrant for arrest

What is an appearance notice issued for?

Issued for summary conviction offences, hybrid offences and less serious indictable offences.

What info does an appearance notice provide?

1. The offence the suspect was charged with

2. The time and place of the mandated court appearance

3. Provides the police belief that the suspect will appear in court

What happens when the accused receives an appearance notice?

They must sign the police copy and then they receive another copy of the notice to keep for themselves.

What happens after the accused receives an appearance notice?

The police officer then swears an information before the judge or justice of the peace.

What is an information?

It is a legal document stating the officer believes on reasonable grounds that the person named in the appearance notice committed the offence.

When will police arrest a suspect and take them into custody?

They will take the suspect into custody for more serious indictable offences.

While making an arrest, what do police legally HAVE to do?

1. Identify themselves (badge/ID, etc)

2. Advise the accused that they are under arrest

3. Inform the accused of the right to a lawyer (Not the Miranda Rights like in the USA)

4. Inform the accused of the charges laid

What happens when the accused does not speak English?

Police must provide an interpreter so that the person knows that they are under arrest

What is the purpose of an arrest?

1. Lay charges

2. Preserve evidence

3. Prevent the accused from continuing to make offences

When can police arrest without a warrant?

Whenever there is reasonable grounds to believe that the suspect committed, is committing, or will commit an indictable offence.

What must police do after making an arrest?

They must swear an information before a judge or justice of the peace.

What happens when the accused resists arrest?

Police can use as much force as is necessary and reasonable to prevent escape. They can even apply deadly or injury-bound force if it protects others from death/bodily harm.

When can police use deadly force on the accused?

A law passed in 1994 allows use of deadly force if…:

• The behaviour of a suspect might cause serious harm or death to others

• The suspect flees to escape arrest

• No alternative means to prevent escape

When are police criminally liable for use of force on an accused resisting arrest?

Police are liable for any and all unnecessary and unreasonable force.

What will police do if the accused flees the scene of a crime?

They can swear an information in front of a judge or justice of the peace.

What is a summons?

A legal document ordering the accused to appear in court at a certain time or place.

What happens if they know the suspect will not show up?

If police show that the accused will not appear voluntarily, the judge then issues a warrant for their arrest.

What info does a warrant for arrest include?

1. Name + description of the accused

2. The accused’s offences

3. The orders for their arrest

Why is police conduct important?

Officers are responsible for their conduct and behaviour when carrying out their duties. If said rules are broken, they can be charred under criminal law or sued under civil law.

* Each province has a board that reviews complaints from citizens concerning police conduct

What is a citizens’ arrest?

• Citizens can make an arrest under certain circumstances

• This law gives detectives, private detectives, and other citizens the authority to make arrests

When is the accused released after their arrest?

If the crime has a penalty less than 5 years, they will be released (most people arrested are released, which means many violent people return to society). They must be released after minor crimes.

What is bail?

Money down payment to ensure the person will show up for trial (legal money must be proven)

What is the discriminatory issue with bail?

• Only wealthy people can afford bail

• Negatively affect POC and marginalised

  • Black people spend twice as long waiting for trial compare to white people

• Judge decides if bail is offered (favours the rich)

What is reverse onus?

• Used in serious cases

• Defendant must explain why they should be released and convince

• Accused is fingerprinted and photographed (might be destroyed if found not guilty)

What happens when the accused is released through reverse onus?

• If released, accused must sign an undertaking and live up to conditions (curfew)

• May have to sign a recognizance promising to appear on court date

What is an undertaking?

A document created by either a court or the police that places the person being charged with an offence and released under reverse onus under certain conditions.

* Common conditions include abstaining from consuming or possessing drugs or alcohol, or promising to stay away from certain people or places.

When is an undertaking enforced?

It isn’t really enforced unless accused gets caught doing something stupid and police see they have an undertaking with conditions that they broke.

What is a recognizance?

This document states the terms under which you have been released through reverse onus.

• Signing it means you promise to appear on the listed court date.

• It may also include conditions of your release.

After signing this and not showing up to court, accused can be charged with failure to appear.

While awaiting trial, what should the accused do?

They should consult a lawyer.

* Legal aid is provided to those who cannot afford it (these lawyers are often overworked)

When preparing for the trial, what must occur between both sides?

Full disclosure

What is full disclosure?

• Both sides meet and give each other all of the evidence

• The defence can then prepare

What happens when there is not enough evidence to sentence the accused?

It can get the charges dropped.

What are the benefits of full disclosure?

It reduces the number of trials and therefore reduces the cost of trials.

What is used as forensic evidence?

DNA analysis, hair matching, imprints, etc.

How does DNA analysis get stored?

DNA analysis from suspects are entered into a DNA data bank

How are DNA testing sites used in forensics?

Police often access DNA databanks of genetic testing and ancestry sites to research suspect and relatives.

What happens if the accused is not released through reverse onus?

* If a person is not released, they can appeal to a higher court and the judge will rule on the application

As a case proceeds to court, what happens?

A trial date is set or an adjournment is asked for to allow the lawyers to prepare

How do we know what court the case will go to?

The judge will decide depending on the offence:

1. Summary and minor indictable offences: provincial court

2. Serious indictable offences: provincial court judge alone/can go to higher court by a judge/judge and jury (assault, weapons)

3. Supreme court decides on cases it takes on where a judge and jury will preside

What is a plea in court?

The defendant must plead either innocent or guilty before the court.

What happens if the defendant pleads guilty?

They are remanded and a judge reviews the case before sentencing.

What is a preliminary hearing?

It gets some facts out to see if the case should go forward (judge decides). Usually done away with as it is a waste of time and money when full disclosure exists.

What is plea bargaining?

• Occurs when the two sides agree to guilt for defendant in return for a lower sentence

• Usually effective but sentence still depends on judge

Pros of plea bargaining?

• Less trial time

• Less money spent

• Certain conviction for the prosecuting lawyer (a win)

Cons of plea bargaining?

• No justice for the victim (only serves defendant and prosecutor)

• Doesn't follow criminal code (judge does not need to follow through with the plea bargain)

• Cannot take back plea (rare)

What is a polygraph?

It is a lie-detector test that is inadmissable in the court of law due to the small potential of it not being correct

What is a police log?

A small notebook police can use to take notes on their cases so that when revisiting cases in later years, they can refresh themselves on the details.