CRIMINAL PROCEDURES
CHAPTERS 7 AND 8
ARREST
WHAT 2 THINGS HAE TO BE PRESENT FOR AN
ARREST TO TAKE PLACE?
Police officers must determine that offence has
been committed.
2. Police must have reasonable grounds to believe
that the suspect committed the offence.
1.
ARREST CONT...
WHAT 3 CHOICES ARE AVAILABLE TO POLICE?
Appearance notice
2. Arrest suspect
3. Warrant for arrest
1.
APPEARANCE
WHEN IS AN APPEARANCE NOTICE USED?
 When officer believes accused will appear in court
 Can be used for summary conviction offences, hybrid
offences and less serious indictable offences.
SEARCH WARRANTS
HOW DOES AN OFFICER OBTAIN A SEARCH
WARRANT?
 Officer must swear before judge/justice of the peace
that offence has been committed and that there are
reasonable grounds to believe that evidence of a
crime exists on the property.
 If info was recovered by an informer, officer must
state why informer is reliable.
SEARCH WARRANTS CONT...
WHAT IS A TELEWARRANT?
 Warrant obtained by telephone, fax or email.
WHAT ARE COMMON TERMS FOUND IN A WARRANT?
 Between the hrs of 6am and 9pm
 Can only search those areas outlined in warrant
 Only items mentioned in warrant can be seized, unless other
illegal items are found
 Officer cannot go beyond terms of warrant in hopes of
finding something illegal
WARRANTS CONT…
WHAT HAPPENS IF A PERSON REFUSES ENTRY TO POLICE
WITH A WARRANT?
 Police can break in
WHAT ARE 3 EXCEPTIONS TO SEARCH LAWS?
 Under Controlled Drugs and Substances Act-police can search any
place that is NOT a private residence without a warrant if there is a
reasonable belief that it contains illegal drugs.
 Provincial Liquor Laws-police may search a vehicle for illegal
alcohol without a warrant.
 If police stop a vehicle & become suspicious fo the driver (ie. Hiding
something) they may search the vehicle.
 Police can search for illegal weapons without a warrant in any place
that is not a private residence
JURY SELECTION
WHAT ARE THE BENEFITS OF A TRIAL BY JURY
(VS BY JUDGE)?
 Lets public see conflicts resolved by peers
 Jury reflects conscience of community
 Defence only needs to convince 1 juror that accused
may be innocent.
JURY SELECTION CONT…
WHICH OFFENCES REQUIRE A TRIAL BY JURY?
 Murder
 Treason (plotting against government)
 Accessory to murder or treason
 Alarming her majesty (assaults/plotting against the queen)
 Intimidating parliament or legislature (threatening members)
 Bribery by the holder of a judicial office (e.g. bribing a judge)
 Seditious (or subversive) offences (e.g. disturbing tranquility of
the state)
 Piracy or piratical acts (e.g. hijacking, stealing control of ship)
 Inciting to mutiny (e.g. overthrowing a captain of a naval ship)
 Attempting or conspiring to commit any of the above offences
JURY SELECTION CONT…
WHAT ARE THE BENEFITS OF A TRIAL JUDGE (VS
TRIAL BY JURY)?
 Judge may be less prejudice than some jurors
 Juror may allow disgust of an offence to cloud their
judgement
 Legal technicalities may confuse jurors
 Jurors may be convinced by eloquence of a good crown
 Judge is trained to make decisions based on fact and law
JURY SELECTION CONT…
WHAT IS EMPANELLING?
 Process of selecting the 12 jurors
DESCRIBE THE JURY SELECTION PROCESS?
 List of jurors created from residents in court area
 Randomly pick 75-100 names from list
 Cards with names placed in barrel and names drawn
 Juror steps forward when they hear their name
 Judge may exempt anyone with a personal interest in the case,
a relationship with trial participant or personal hardship
 Defence and crown can accept/reject jurors
JURY SELECTION CONT…
LIST 5 PEOPLE USUALLY EXEMPT FROM JURY DUTY.
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MP’s, senators, MPP’s, Municipal government officials
Judges, justice of the peace, lawyers, law students
Doctors, coroners, veterinarians
Law enforcement officers, special constables, sheriffs,
prison wardens and guards and their spouses
Those who are visually impaired
Those with a mental or physical challenge that would
impair their ability to be a juror
Anyone who has served on a jury within the past 2-3 yrs
Anyone convicted of ran indictable offence with no
pardon
JURY SELECTION CONT…
DEFINE THE TERM SEQUESTER. WHY IS IT USED?
 Jury is housed and kept away from home until they
have reached their formal decision
 Used to prevent jurors from being influenced by
outside information or by anyone with an interest in
the case.
TYPES OF EVIDENCE
PRIVILEDGED COMMUNICATIONS:
 Communications that cannot be required to be
present in court as evidence (e.g. spouse, clergy) but
spouse can give evidence for defence to help accused
(their spouse)
SIMILAR FACT EVIDENCE:
 Evidence that shows the accused has committed
similar offences in the past (crown uses it to imply
that accused has committed offence again)
 Judge has to approve this type of evidence (must be
relevant to the case) through a voir dire
TYPES OF EVIDENCE CONT…
HEARSAY EVIDENCE:
 Something someone other than the witness has said or
written. E.g. Bill said Jill said she saw him.
 Usually not admitted.
Admitted if person is quoting someone who is dying.
OPINION EVIDENCE:
 Is what an expert witness thinks about certain facts of the
case.
 Their opinion is generally inadmissible unless expert is
qualified.
TYPES OF EVIDENCE CONT…
CHARACTER EVIDENCE:
 Evidence of character traits
 Crown is limited to what negative character traits they
can introduce since it is prejudicial and may influence
jury to convict.
 Defence is allowed to introduce character evidence to
support the accused’ credibility. E.g. mom takes the
stand.
PHOTOGRAPHS:
 May be entered into evidence if they can be identified to
be an accurate portrait of the crime scene. Often
photographer or film processor must take the stand to
state how film was processed.
TYPES OF EVIDENCE CONT…
ELECTRONIC DEVICES & VIDEO SURVEILLANCE
 Evidence obtained this way are admitted if criminal code
procedures have been strictly followed. E.g. need a court
order to intercept private conversations or one party in a
conversation must agree
 Electronic surveillance must be treated as a last resort
POLYGRAPH EVIDENCE
 Polygraph tests are considered hearsay and therefore
inadmissible as evidence
 Polygraph operator can take stand and state what person
has said but cannot interpret any results and discuss
them.
TYPES OF EVIDENCE CONT…
CONFESSIONS:
Confession = is an accused person’s acknowledgment that
the charge, or part of it is true
 A confession is not valid and admissible in court if the
accused has not been informed of their Charter rights
Inculpable – an admission
Exculpatory – a denial
ILLEGALLY OBTAINED EVIDENCE:
 Severity of offence, how it was committed, and how the
evidence was obtained must be considered.
CRIMINAL DEFENCES
SELF DEFENCE:
 Can use force necessary and reasonable according to
the circumstances in order to protect yourself
LEGAL DUTY:
 Office may use as much force as necessary to make
an arrest. Allows certain people to commit acts that
would otherwise be offences. E.g. police driving over
the speed limit to catch a criminal
CRIMINAL DEFENCES CONT…
EXCUSABLE CONDUCT:
 E.g. Duress-threat of using violence
 E.g. Honest mistake-may also be accepted as a defence
under excusable conduct.
MENTAL DISORDER:
 Use of mental disorder as a defence has been debated for
many years
 Mental fitness to stand trial – trial may be delayed if
accused is deemed not fit to stand trial.
 If accused is found ‘not guilty’ by reason of insanity, the
verdict must state that “the accused committed the act or
omission but is not criminally responsible on account of
mental disorder”
CRIMINAL DEFENCES CONT…
INTOXICATION:
 Person intoxicated may be found guilty of general intent
but not of specific intent
E.g. person who was unable to form intent before striking
someone cannot be found guilty of aggravated assault but
can be found guilty of assault, a general intent offence.
AUTOMATISM:
 Described as “unconscious, involuntary behaviour-the
state of a person who, though capable of action, is not
conscious of what they are doing”
E.g. Sleep walking, convulsions, behaviour caused by
psychological stress.
CRIMINAL DEFENCES CONT…
CONSENT:
 Can be used as a valid defence, but only if the party
injured by the accused could and did consent to the
action.
E.g. football player injuring other player-victim
consented by playing the game.
ENTRAPMENT:
 Is a police action that encourages or aids a person to
commit an offence
 Not recognized as a defence but rather as an abuse by
police.
CRIMINAL DEFENCES CONT…
DOUBLE JEOPARDY:
 Means to be tried 2 times for the same offence.
Charter- “Any person charged with an offence has the
right… if finally acquitted of the offence, not to be tried
for it again and if finally found guilty and punished for
the offence, not to be tried or punished for it again”.
In a double jeopardy case, a pre trial motion can be made
using one of 2 pleas:
1. Autrefois Aquit-accused states they were prev acquitted
of charge.
2. Autrefois Convict-accused states that they had already
been convicted of the charge.
RATES OF INCARCERATION, 2000
COUNTRY
RATE FOR EVERY 100 000 CITIZENS
United States
699
New Zealand
149
Britain & Wales
124
Canada
118
Germany
97
France
89
Denmark
61
Finland
57