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Procedural Law Exam
Terms in this set (40)
1982 Constitution specifies what Aboriginal Rights are
What are the six requirements on an information to obtain a search warrant
1. Specific to place to be searched
2. Specific to items to be searched for
4. Grounds for believing an offence including probative value of items sought
5. Grounds for believing items at that place
6. Qualification (why its related)
R v Wills
What things must be present for a valid consent search to take place
1. Consent is either expressed or implied
2. Consenting party has authority to give the consent
3. Consent was voluntary and not a product of police oppression, coercion, or other external conduct negating freedom to choose not to consent
4. Consenting party knew of the nature of the police conduct to which he/she was being asked to consent
5. Consenting party knew they had the ability to refuse the search
6. Consenting party was aware of potential consequences of giving the consent, including general understanding of the jeopardy resulting from the police conduct about which the consent was being sought
What is the definition of Aboriginal Rights with respects to Indigenous person
Activities that are a distinct and integral part of the Aboriginal culture and community, prior to European contact
Not usually written down
All treaty and aboriginal rights are constitutionally protected and cannot be infringed upon
What is the purpose of a Voir Dire?
A trial within a trial to determine the admissibility of evidence
Due Diligence is:
A. Strict Liability
B. Having the burden of proof on the defense
C. Take all reasonable steps to avoid committing an offence
D. The combination of BC
E. The combination of ABC
F. The combination of AB
E. All of them
-having the burden of proof on defense
-take all reasonable steps to avoid committing an offence
An order of detention on a report to a Justice will allow for the item seized in the execution of a search warrant to be detained in officer custody for how long of a time period in months?
3 months after the day of seizure
How can an officer have an order of detention time period extended?
-Apply for previously detained item to be seized
-Have to have 3 days wait time for owner of that item to be notified
-prior to expiration, the JP is satisfied on the nature of the investigation that there is further reason for the item to be detained so a proceeding is instituted
What are 5 Steps an officer must follow when entering a home under a search warrant?
1. Give Notice of Presence
2. Identify as law enforcement
3. Inform occupants of legal authority to enter
4. Provide a copy of the warrant
5. Advise them that they are not under arrest
What are the Statutory Conditions of a probation order under the POA?
1. Defendant not commit the same or related or similar offence, or any offence under a statute of Canada or ON or any other province punishable by imprisonment
2. Defendant appear before the court as and when required
3. Defendant notify court of any change in their address
What is penalty for breaching a POA probation order?
-no more than 30 days, fine no more than $1000
When dealing with a young person under a provincial legislation in ON,what procedural things are not allowed?
1. Identity cannot be published
2. No trials in absentia - YP has to appear in court unless excused by the courts
3. YP must understand what is happening
4. No prison unless breach of probation
5. Cannot use offence notice
6. Taking a statement without a parent or counsel
What age range does a youth criminal justice act apply?
12 - 17 years
Young person under Part 6 of the POA, is between what ages?
12 - 15 years
What is Defense of Necessity
-Urgent situation of clear and imminent peril
-Compliance with the law is virtually impossible and have no other choice
-Must act to avoid immediate peril
-Must be no legal alternative
-Harm inflicted is less than harm avoided
-Emergency must be a surprise
Mistake of fact prevents the defendant from having mens rea?
Probation Orders under the POA are not available options in addition to a fine upon conviction in a Part 1 trial
-they ARE available options
Proceedings under the POA - Part 6 for Young Persons must only be proceeded by the use of an offence notice
-you cannot use an offence notice
Proceedings commenced under POA Part 6 can result in:
A. Max fine of 500
B. 120 day probation order
C. Max fine of 300
D. Probation order not exceeding 90 days
E. B or C
F. C and D
Max fine of $300, and probation order not exceeding 90 days
When drafting your information to obtain a search warrant and your search warrant, what must you ensure regarding the items and location?
-rationale is evidence therefore explain value
-documents can be difficult to describe - use as much precision as possible
-explain why you need the item (value)
-evidence specific to that location
-specific to what you are looking for
All corporation names must end in corporated, limited, or company or their equivalent abbreviations
Sole proprietorship is an entity that is legally recognized and capable of inferring liability
-you can only charge an individual/operator/manager
The execution of a search warrant must be started and finished in the time period specified on the face of the search warrant
A search warrant must have an expiry date listed or it becomes an invalid search warrant
What is logically probative (probative value)
-Describe why that item on the information to obtain is important to the charge
-why the officer needs that item and how it ties to the offence
ex. why that fishing pole is important as evidence for illegally fishing
What are the 3 broad factors used to determine metis identity for the purpose of claiming Section 35 of Constitutional Rights
2. Ancestral connection
3. Accepted by metis community
What is the Best Evidence rule?
The law does not permit a person to give evidence which by its very nature shows that there is better evidence within their reach
What is required for photographs to be admissible?
-Accurate depiction of what you saw
-Date, time, location, officer signature
Is it a good time to take a statement during a search warrant?
-unless it is someone you are going to charge
Is it possible to gain further reasonable grounds during your search warrant for another search warrant?
-could be RG for another warrant under a different Act
Name 5 common defences
Officially Induced Error
Mistake of Fact
Defence of Necessity
Burden of proof where the crown must prove ____ beyond a reasonable doubt
Burden to prove is entirely on the crown or the defence?
Entirely on the Defence
Who can give opinion evidence?
A prima facie case is one that the Crown has proved all the ____ in _______
Facts in Issue
Should the defence be allowed to see the actual exhibits prior to trial
Should the officer be present during the exhibit viewing
If its a young offender - you must deliver the copy of the summons to:
A parent includes an adult with whom the young offender ordinarily:
A. plays sports with
B. Vacations with
C. Resides with
D. Sleeps over
C. Resides with
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