Criminal Law- Terms to Know Parts 3-5

Charter s.8

Everyone has the right to be secure against unreasonable search and seizure

Charter s.24

If search is unreasonable, court will consider all factors and might exclude evidence

Where do we have a reasonable expectation of privacy?

1. Personal - the body (strip searches, pat downs, DNA)

2. Informational (data, phones, computers)

3. Territorial (places, things)

What is a search?

Police actions are a search where they intrude on your “reasonable expectatoin of privacy”

Searches are assumed unreasonable (T/F)

True

Requirements for a reasonable search

1. Warrant

2. Consent

3. Hot Pursuit

Warrant

Police’s legal authorization to search

Police must swear and prove that there are “reasonable and probable grounds” before a judge

• Warrant is for specific time and date

• Warrant must be with police

• Knock and announce

• Force is allowed if denied entry

Consent

• Can be express or implied

• Have authority to give consent

• Must be voluntary

• Should understand what you are consenting to

Hot Pursuit

• Emergency situation

• Danger of evidence being destroyed, or suspect getting away

• No warrant needed

Charter s.9

Everyone has the right not to be arbitrarily detained or impristoned.

Detention

When you are stopped by police for questioning

• Detention should be brief, if not leading to arrest you are free to go

Charter s.10

Always having the right to know the reason of your arrest, allowed to get a lawyer immediately, and duty counsel if needed

Duty Counsel

Lawyers paid for by legal aid for people with low incomes

Bail Hearing

A hearing where judge decides if accused can be released before trial

• judge must release unless Crown shows detention is justified

• For an indictable offence - must have hearing within 24 hrs

Bail

Money pledged to court to secure appearance at later date.

• If the accused breaches bail conditions, they or a surety (family member, friend) will have to pay the money

Reverse Onus

For murder charges, the accused is prescriptively kept in custody unless they can prove they should be released/aren’t not a risk

Factors to consider in bail hearings:

1. the chance the accused person will not attend court dates

2. whether they are likely to commit crimes if released or are dangerous to the public

3. in some cases, whether release on bail would cause people to lose faith in the administration of justice

Undertaking

Accused required to sign undertaking and agree to conditions; eg curfew, not going certain places, report to police station once a week

Recognizance

recognize charged with offence, and promise to appear on certain date

Habeas Corpus

“you shall have the body”

if you are being held and don’t know reason, can ask for a hearing to determine legality of detention

Disclosure

Duty of crown to provide all evidence to the Defense pre-trial so the accused can fully understand the case and defend themselves

Evidence

Include anything that will submitted as exhibits at trial:

• charging documents

• physical evidence

• lists of witnesses

• witness statements

• audio or video statements

• expert witness reports

• documents

• search warrants

• wiretap evidence

• police misconduct materials

• photos

• videos

• forensic evidence - blood type, other body fluids, DNA

Forensic Science

the application of scientific methods to criminal cases

Adjournment

a request to delay trial proceedings- a part may request for more time

The plea (arraignment)

reading of the charge, and hearing where accused pleads guilty/not guilty

Preliminary Hearing

a hearing where judge decides whether there is sufficient evidence to proceed to the actual trial

Resolution Discussions/Plea Bargaining

When accused may plead guilty to lesser charge in exchange for a lighter sentence

• If the case is weak defence may opt to have this

• Similar to settlement discussions in civil law

• Often seen as compromising justice

Adversarial System

Idea that when two opposing sides are represented by counsel and argue a case, the truth will be discovered

Judge

• Appointed by federal government (except for provincial court judges, who are appointed by provincial government)

• Need to have practiced as a lawyer for a minimum 10 years

Crown prosecutor

• Lawyer representing the government

• Burden of proof is on the Crown. Accused is innocent until proven guilty

• Must prove beyond a reasonable doubt (99%)

• Must present all evidence, even if it weakens the case.

• They also make a decision whether to prosecute - if the case is weak, they will not prosecute or withdraw charges.

• They act in the public interest - ie their goal is not to have a maximum number of convictions, but rather, to get a just result.

Defense counsel

• Represents the accused.

• Duty to represent client to best of your ability, even where the crime is offensive to the public.

• Your job is to establish “reasonable doubt”.

• You have to defend to best of ability

Motions

a step in a proceeding

Procedural motion

deadlines, timelines, etc

Evidentiary motion

determine admissibility of evidence

Trial by judge alone or by jury

Accused may select trial by jury or judge alone

Note: This is only for Superior/Supreme Court (higher level of court of first instance - ie for indictable crimes. If a summary conviction crime - you are in provincial court, and it is always trial by judge alone)

Jury Selection - Empanelling

The process of selecting 12 jurors.

People with personal interest in case, or who would suffer personal hardship, are exempt

empanelling challenges- for cause

specific reason given for dismissing a potential juror

empanelling challenges- peremptory

No reason given for dismissing a potential juror

Jury Duty

• Jurors are then sworn in - sit in jury box.

• Jurors are informed of their duties.

• They can’t discuss the case with anyone, or look at media (no phones)

Sequestering

Isolating the jury

• Most jurors go home at the end of the day. Sometimes, though, the judge may sequester the jury. (Stay in a hotel)

• All juries are sequestered when they retire to reach a verdict

Verdict

the decision in the case, must be unanimous (all 12 jurors)

Foreperson

designated “leader” of jury

(announces verdict)

Opening statements

• Summary of the case

• story told in the most compelling way for their side

Subpoena - witnesses

court document that orders witnesses to appear

Contempt - witnesses

disobeying an order to appear, or any other court order, is an offence and can land you in jail

Perjury - witnesses

knowingly giving false evidence with intent to mislead.  A Criminal offence   - maximum penalty 14 years

Examination in chief/Direct Examination

If your side calls the witness, you conduct direct examination

You can only ask non-leading questions

Rationale:  Allow the witness to tell their story. 

Cross examination

The other party can cross-examine.

They ask leading questions, in order to challenge weaknesses or holes in the testimony.  These questions can be answered by yes/no.

Rules of evidence - privileged communication

Can’t be evidence in court - communication between spouses, between lawyer and client, between patient and doctor, pastor and parishioner.

Rationale: we want to encourage open communication in these situation without fear of it becoming evidence

Rules of evidence - similar fact

Evidence of past bad behaviour presumptively not admissible. We are only looking at the facts of this case.

Rules of evidence - hearsay

you can only testify as to what YOU saw.

Rules of evidence - opinion

witnesses only testify as to what they see. Not their opinion on a situation.

Rules of evidence - character

The Crown may not introduce evidence of bad character.

Rules of evidence - confession

must be voluntary.  If there is anything suggesting it is not, then not admissible.

Rules of evidence - relevance

#1 rule of evidence is that it must be relevant

Rules of evidence - entering evidence

Evidence can be introduced through witness testimony, or it will be entered as an “exhibit”

Rules of evidence- expert opinion

If you need an expert opinion on something (forensics, etc) you have to call an expert and have them qualified as an expert.

Voir Dire

“to speak the truth”

to determine the admissibility of evidence, if an expert witness has the right credentials, or other evidentiary matters (like a trial within a trial)

Summation/Closing Statement

Similar to opening argument, and you want to hit the highlights of the evidence in your favour.

Charge to Jury

judge delivers charge to the jury

Instructions to the jury as to the legal tests that they should be considering, and instructions on evidence that they need to consider. Either side can challenge this for legal errors, and if you don’t like the verdict, you can appeal on the basis that there was a flaw in the charge to the jury

Hung Jury

When the jury can’t come to a unanimous decision. The accused may then be tried by a new jury, so the trial repeats