rules of evid final exam lolsies

chapter 4, 5,6,7, 8, 9, 11

Review Powers of Search and Seizure for Police and Private Citizens

• Police can search for evidence related to the crime, weapons that may harm them or others, and tools for escape

• Citizens cannot search for tools for escape but they may search for evidence related to the crime or weapons that may harm them or others

- Search incidental to arrest is reasonable where necessary:

i. Prevent injury (weapons)

ii. Seize and preserve evidence relating to the offence arrested for

Review Informed Consent

- Based on the following conditions:

1. Consent (expressed or implied)

2. Authority (giver of consent must have)

3. Voluntary

4. Awareness

I. Nature of police conduct that the consent is being asked for

II. Right to refuse search

III. Potential consequences of giving consent

- Right to Counsel

Review when a Feeney Warrant is required

- R. v. Feeney (1997) SCC

- Police need warrant prior to entering a dwelling house to arrest a suspect

• Exceptions exist when police are in hot pursuit

Review the Plain View Doctrine

Officers may seize items that are either evidence of a crime, or are contraband; items must be in plain view (nothing needs to be moved to discover them)

Three conditions:

1. Lawfully placed

2. Discovered the evidence “inadvertently”

3. Item must be “immediately apparent”

Review where Administrative Tribunals obtain their authority

From their enabling legislation; are set up by federal or provincial legislation, known as “empowering legislation” → They can only carry out their functions and activities within the powers granted by the act

• Where a tribunal exercises judicial or quasi-judicial functions, it must adhere to the Rules of Natural Justice

• There should be a “fair hearing” where each party receives the notice of the hearing, with a right to be heard

• Any actions taken by the body outside of its jurisdiction are considered ultra vires (without power)

Review the S.C.C case that applies to the disclosure of the police investigation

- R. v. Stinchcombe (1991) S.C.C.

- Generally, the Crown must disclose any statements in its possession of witnesses that it proposes to call as witnesses or who have relevant information

Review the process for disclosure in civil proceedings

“Examination for Discovery” is the name for the civilian disclosure process; any party in a civil matter can be called upon to disclose any documents in their possession including an investigator’s notes or reports

• Both parties can be forced to testify

Review what part of the CCC authorizes interception of private communications

Part VI (6) of CCC → Invasion of Privacy, S 183

Intercept includes: listening, recording, acquiring a communication

Review the three criteria for search and seizure

R v Collins, related to s.8 of Charter: Everyone has the right to be secure against unreasonable search or seizure

Search is reasonable if:

• Authorized by law

• The law itself is reasonable

• Search in a reasonable manner

Review s24 Charter

Remedies section; admission of the evidence would bring the administration of justice into disrepute

• This occurs when the evidence was obtained in violation of the individual’s rights and the violation was not justifiable/reasonable

• Remedies imposed under s 24(1): monetary reward, court-ordered stay of proceedings, etc

Review what types of communication police can intercept with a warrant

Authorization to listen to phone calls and text messages; includes listening, recording, acquiring a communication

Review what is meant by a reasonable expectation of privacy

It is any situation where you have a reasonable expectation that no one should be listening to or watching you.

- Section 8 protects individuals from unreasonable search or seizure.

- Courts look at a two-part test, which includes whether the individual expected privacy (subjective) and whether society recognizes that expectation as reasonable (objective).

- The courts look at the totality of the circumstances.

Review what time search warrants can be executed

All warrants are executed by day which is 6am-9pm, unless authorized by night, as defined in the Criminal Code

Review the Gaming, Liquor, and Cannabis Act for any powers of search

Under the AGLC, inspectors can enter licensed places during business hours or at a reasonable time without a warrant to inspect records and products.

• Police can search vehicles or people in vehicles if it is impractical to get a warrant because of deconstruction of evidence.

• Police can seize liquor or cannabis that is kept unlawfully.

Review whether an accused can be compelled to testify in a criminal manner and civil matter

In criminal matters, the accused cannot be made to testify.

In civil matters, both parties can be forced to testify.

Testifying:

- Criminal Matters – cannot make accused testify

- Civil Matters – both parties can be forced to testify

Review what is meant by private communication

Any oral communication or any telecommunication; reasonable to expect not to be intercepted; other than the person intended

Review what hearsay evidence is and why it is not generally allowed at trial

A statement, originally made out of court, that is repeated in court for the truth of its contents

• not admissible evidence unless it meets a specific exception that permits it to be admitted

• Reliability cannot be tested and examined in court in the same way that first-hand evidence can be tested and examined

Review the exceptions to the Hearsay Rule

- Declaration against interest: A statement made by a party that is against the party’s own interest.

- Two categories of “against interest” that have traditionally led to admissibility:

→ Declarations against pecuniary or proprietary interest.

→ Declarations against penal interest.

- Dying declaration: A statement made by a person who is certain they are about to die.

- Applies only in criminal cases; not in civil matters.

1. The offence has to be for murder or manslaughter

2. The victim must have had a settled hopeless expectation of impending death

- Res gestae or spontaneous statement: A statement made in an excited state or expressing an existing physical, mental, or emotional state.

- Excited utterance: A statement made while the speaker’s mind is still dominated by a startling event.

- Present impression: A statement regarding a person’s perception of their present impressions or physical or mental condition.

Review the Modern Rule for Hearsay - Two General Requirements

Exception to the hearsay rule based on the principles of necessity and reliability

• Where both could be established, hearsay may be admitted, provided that the probative value of the evidence outweighed the prejudice

Review what prior statements are

R v Khelawon: are statements, whether video-recorded or not, and whether or not the witness was present in court to give evidence, are hearsay and cannot be admitted for the truth of their contents unless they fit within an exception to the hearsay rule

Review the case study from class that was the foundational basis in establishing guidelines for our courts on the reliability of hearsay evidence

R v Khan

Review the statutory exceptions to hearsay evidence

Business records, electronic documents, bank records, and prior inconsistent statements

Review the exceptions to the Character Evidence Rule

The prosecution is not allowed to lead evidence of an accused’s bad character or previous convictions; the exception is if the accused puts his character in issue, they are entitled to introduce evidence of good character

Review how the rules of character evidence apply to an accused who takes stand as a witness

Two ways:

enters witness stand – swears did not commit crime BUT also not the kind of person that would

- accused can call witnesses to attest “to good behaviour”

Rule:

- witness can only swear to the general reputation of the accused - in the community

- cannot give their own opinion

Review the provision that addresses evidence of a complainant’s sexual history

Rape Shield Provisions: provisions in the CCC that forbid the admission of evidence of a complainant’s sexual history to support an inference that they are more likely to hace given consent or are less worthy of belief

Review similar fact evidence

Many courts have adopted the phrase “striking similarity”

Evidence that shows that an accused committed similar offences in the past, which may be admitted provided that it is relevant to establishing an important matter other than the accused’s predisposition to commit that type of offence

• It is not admissible for the Crown to lead the evidence for a prohibited inference

Review what an ordinary person can give an opinion on when testifying

Opinion evidence is not admissible unless it is the opinion of a layperson that is helpful for a clear understanding of their testimony or the opinion of an expert

An ordinary person can give an opinion where the subject matter of the opinion is within the knowledge and expertise of the average person

• For example, height, age, race; physical conditions, emotional state, speed and distance, vehicle behaviour, identification

Review what qualifies someone as an expert when testifying

Expert opinion rule: a properly qualified expert will be permitted to provide their opinion if specialized knowledge will permit the trier of fact to better understand the facts or evidence before it

• Knowledge of matter they’re testifying

• Training - their education

• Experience - how long they’ve done it for

Review the Threshold Test for admissibility of expert evidence

The Mohan Factors

1. Relevance

2. Necessity

3. Qualifications

4. Absence of any exclusionary rule

What is the limit on the number of expert witnesses?

→ Canada Evidence Act limits expert witnesses to five.

- Exceptions can be granted.

→ Ontario Evidence Act limits expert witnesses to three.

- Exceptions can be granted.

Review the Test of Voluntariness

Subjective test of voluntariness based on a “Free” operating mind; the accused must know 1) what they are saying; and 2) that it may be used against them

The Crown must prove that confessions were made freely without threats or promises to the accused

Involuntary statements are always excluded, whether they are proven to be true or not

Review the different factors or conditions the court will examine in determining whether a confession was voluntary

Test for Voluntariness: The Court will:

Examine all conditions regarding taking of statement including:

1. the room set-up/lighting

2. the length of period of questioning

3. the length of breaks

4. whether accused given refreshments

5. individual characteristics of accused

6. number of persons present/conduct of police

Review what a warned statement is

Police have to read your section 10 Charter rights and caution, which tells them that they don't have to say anything, but if they do, it may be used against them.

The Caution (Warning) - police must inform the accused that they have nothing to hope from promises and nothing to fear from threats, and that they have the right to remain silent

Review the SCC case that guides courts when considering confessions

R v Oickle, the Supreme Court modified the Ibrahim rule → any choice by a suspect to speak to the authorities must be a meaningful one

Confession rule - a rule stating that a statement made to a person in authority is not admissible unless it was made voluntarily (known as the Ibrahim rule)

Review who might be a “person in authority”

A Person of Authority: anyone who has authority or control over the accused or over the proceeding, includes these people: police officers, Crown prosecutors, Judge or Jury, Prison Guards, Security Guard or Loss Prevention Officer who’s arrested you, a complainant (victim), an informant for the police

Review what might qualify as an admission

A statement or acknowledgement by a person that is adverse to the person’s interests; an acknowledgement of a material fact that may form a link in the chain of proof against the accused

→ Can be given orally or in writing

→ Can include conduct (e.g., nodding one’s head in agreement without words being spoken)

Review what conscriptive evidence is

Evidence obtained as a result of the accused being compelled to participate in the creation or location of evidence

Oickle Rule: requires that the will of the accused has not been overborne by inducements, oppressive circumstances, or lack of an operating mind and that police trickery has not unfairly denied the accused the right to silence