FSC360
Evidence, Law, and Forensic Science in Canada
September 13, Week 1
Intro to the Canadian Legal System
➢ What is the legal system?
○ A structure of established legal rules and procedures aimed at realizing a policy
objective
■ Policy objective of criminal law: to uphold and maintain the administration
of justice in Canada (key: ensuring public safety)
○ What is Justice?
■ Protect society and manage safety risks to victims, witnesses, and
general public
■ Balance the public interest and individual rights
● Need to ensure accused person treated in a reasonable,
standardised way that ensures that you have rights
■ Ensure fairness in the criminal court process by respecting the rights of
accused and by giving victims the opportunity to have their voices heard
● When victim feels respected throughout court trial regardless of
consequence → drives fairness → complainant found criminal
system worthwhile
■ Engage in the adversarial process to explore the strengths and
weaknesses of the case while ensuring the case is addresses in a timely
manner
● Concept: only 2 verdicts available → guilty or not guilty,
presumption (starting point) of innocence always attached until
verdict → whether presumption applies or not
○ Main presumption in this course → expert evidence
➢ Balancing Societal Interests with Individual Rights
○ Adversarial process
■ Key: the individuals within the criminal justice system must act within their
role
○ Police: investigate the case and provide accurate information
○ Defence: fearlessly raise every argument
○ Crown: fairly present the evidence
■ If problem with case, Crown obligated not to proceed
○ Trier of Fact: assess each case on the totality of the evidewnce and apply legal
standards as appropriate
○ Expert: present opinion with neutrality → opinion evidence
➢ Where is the Law Found?
○ What is “common law”?
■ “Found” in (it is) case law
■ Authority from cases, not statute (precedence)
● What is a statute?
○ Written law (legislation)
○ Provides definitions for terms and rules that can be further
clarified (i.e. litigated) in cases
■ Which has greater weight?
● They inform each other → we start with statute then we look to
how case law might have decided a particular issue that is being
argued about
● Work together
○ Binding case law: judge must apply because higher court
decided it
○ Persuasive case law: uh idk
➢ The Steps in Criminal Justice System
➢ Bail mandatory for some crimes e.g. homicide
➢ Disclosure: provided to accused with info that crown has
➢ Depending on seriousness of offence, jail is last option
○ Guilty plea requires person to have made informed decision
○ Other options
■ Go to trial → acquitted or convicted and sentenced
■ SCC (with leave, with permission) or if not unanimous judging
➢ How does the System Actually Work?
○ Police Investigation and Arrest
■ Police formed reasonable grounds to arrest accused
■ Accused then either released on an OIC undertaking or is presented
○ Disclosure
■ Police collect info and provide it to the Crown, which has a duty to
disclose it to the defence
■ Disclosure required to make full answer and defence
○ CPTs, JPTs, GPs, and Trials
■ CPT: discussion between crown and defence
■ JPT: same but with judge
■ GP: guilty plea
■ Trial: witnesses called to provide evidence
➢ What constitutes a Valid Arrest?
○ Must have reasonable and probable grounds that person arrested committed the
offence
○ Reasonable and probable grounds
■ Subjective → police officer believes they arrest right person
■ E.g. call for break and enter, saw person wearing a mask and flashlight
and cut on arm + broken window → that's why they believed it was the
right person to arrest
■ Hunch is not good enough e.g. see 3 men chillin two blocks down and
arrest one
■ Objective pov. (standard of the reasonable person) (duguay)
● Note: police do not need to establish conviction will result or that
the prosecutor will prosecute the charge
➢ Section 10 of the Charter
○ 10a sets out that person has right to be told reason why they are being
arrested/detained
○ 10b sets out person has right to counsel provided → right to retain and instruct
counsel without delay and to be informed of the right
○ Miranda rights (do not have to talk to the police) → not case in Canada, therefore
not charter right in Canada
○ What is the significance of an arrest?
■ On arrest, an individual is charged with a criminal offence
■ Being charged with a criminal offence triggers certain rights
➢ Section 7
○ Right to life, liberty, and security
➢ Section 8
○ Right to be secure from unreasonable search and seizure
➢ Section 9
○ Everyone has right not to be arbitrarily detained or imprisoned
➢ Section 10
○ Everyone has right on arrest and detention
➢ Section 11
○ Any person charged with an offence has the right
■ To be informed without unreasonable delay of the specific offence
➢ If a person’s charter rights are infringed, is a remedy always ordered?
○ No
○ Enforcement chart
➢ Section 24(2) Framework in R. v. Grant 2009
○ Question inherent in the statute: would admitting the evidence bring the
administration of justice into disrepute?
○ Three-part Test to determine whether the impugned evidence should be
excluded under s. 24(2) of the Charter
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