LAW EXAM REVIEW Notes | Knowt (2024)

UNIT I Our legal heritage

  1. Jurisprudence

  • knowledge or skill of the law, described as the science or philosophy of the law that deals with both applying legal doctrines and investigating the concepts, nations and principle of legal thought

  • 3 reasons to study jurisprudence: understanding the law, understanding our legal heritage, understanding future legal thinking

  • iceberg: because a small portion is visible and you need to dig deeper to analyze it

  • weathervane: like a weathervane, it is usually unpredictable and changes to keep happening in directions.

  1. Primary Sources of Law

Historical Influences


  • circuit judges, case law, common law, rule of law, magna carter, legal reforms, great binding laws, most impact on modern law, especially canadian law, stare decisis, habeas corpus


  • civil law of French completed in 1804, law must be public, significant to Quebec, civil law, properties, family law, etc.

Aboriginal influences:

  • had their own legal systems before contact with Europeans

  • transmitted them orally, this tradition was the responsibility of the elders → not written

  • Iroquois confederacy → great binding law

  • Indian act

Customs and Conventions:

  • customs: a long established way of doing something that, over time, has acquired a force of law

  • convention: a way of doing something that has been accepted for so long that it amounts to an unwritten rule, mainly to political practices

Patriation Case

  • house of commons and senate of canada passed a jointed address to the Queen Elizabeth and the British Parliament requesting an amendment to the Canadians Constitution

  • included: all future amendments would be decided within Canada, amending formula and the CCRF, that all 8 provinces thought it significantly limited their powers

  • 2/10 consented

Social and Political Philosophy

  1. Secondary Sources of Law

The Constitution:

  • a body of written and unwritten laws that set out how the country will be governed

Statute Law:

  • written down and set, can be passed by fed or prov government

  • constitution is the hierarchy, because everything has to abide by the law

Case Law:

  • judges have to render a written decision or explanation of their ruling, these decisions form a substantial body of case law

Case: Jantunen v. Ross

  • waiter case

  • he did not pay back his family, so his family sued him

  • Under the Ontario wages act, the family had the right to garnish 20 percent of Ross’s wages. The other 80 percent was exempt under the Act

  • Jantunen realized that Ross is a waiter and it would take him a long time to pay them back, so they wanted to take his tips as well

  • Did tips qualify as wages? no

  1. Natural Law

What is it?

  • theory that human law derives from eternal and unchangeable principles that regulate the natural world, and that people can become aware of these laws through the use of reason

  • natural law influences both statute and common law and is centrato the legal system today

Note contribution of significant philosophers

  • Pluto and Socrates: dialect method

  • Aristotle: thought that education would make people good, rationalism (the process of using reason to analyze the natural world)

  • Ciero: the romans viewed the theory of natural law as a means is justifying their authority in their growing empire, law is the mind and reason of an intelligent man, civil laws should be disobeyed if they were deemed to conflict with those of nature

  • St. Thomas Aquinas: established eternal law being operat my ed on humans which meant that principles such as parents caring for their children, every person must try to preserve their lives, people should not harm others, everyone should assist the poor, the sick, and the elderly. Procreation, preservation of life, educations was God’s gift

  1. Other laws


  • a law that identifies the rights and duties of a person or level of government


  • a law that outlines the methods or procedures that must be followed in enforcing substantive laws

  1. Positive Law

What is it?

  • laws established by the head of the state and for the good of the state as a whole

  • It had no moral purpose other than to ensure the survivor of the state, and obedience, to it was no matter of conscience, as it has been for aquinas

  • must be obeyed and anyone who challenges will be punished

Note contribution of significant philosophers

  • Thomas Hobbes → negative view: leviathan (needs british monarchy), gain rights given by the state, the king was allowed to enforce his law, people were prone to violence and war so they established a body of government to maintain law and order

  • John Locke: If king violated the natural rights of people then the people were justified being rebellious, democrat, people need to give consent to the government to protect their rights

  • Jeremy Bentham and John Austin: people left to their own devices, tried to achieve the maximum amount of happiness and pleasure in their lives, utilitarianism: the theory that law should achieve the greatest good for the greatest number of people

  1. Modern Legal Theories

Legal Realism:

  • treat law as it were math or science

  • just a body of rules

  • Judges should just apply law and not act outside of it

  • no social policies

  • conservative view on law, based on facts

  • democrat vs republicans

Restraint of power

  • the law will authorized limited power that is proportionate to a legitimate objective of the government

  • Lobby groups: a number of people trying to influence legislators on behalf of a particular case or interest

  1. Application of Legal Theories

Case: Roncarelli v. Duplessis

  • Roncarelli owned a restaurant in Montreal and it belonged to the Jenowah’s witnesses

  • JW were distributing publications, and this got the whole province mad, because it was a Roman Catholic province

  • Police officers arrested over 1000 JW

  • Roncarelli posted bail for 400 JW, Duplesis made the liquor board to stop roncarelli’s license

  • R sued D for damages arising from subsequent loss of business and was awarded 25k

  • then overturned and voted in favor of d

  • Abuse of power? yes

UNIT II Introduction to the Constitution

  1. Division of Powers

Sections 91, 92, and 93

  • Section 91→ outlines the powers of the federal government

  • Section 92 → outlines the powers of the provincial government

  • Section 93 → Minority education rights

The Limited Powers of Cities

Re: Patriation of the Canadian Constitution (1981)?

  1. The Role of the Courts

Case: RJR- MacDonald v. Canada

  • tobacco case

  • this act regulated advertising of tobacco products and the health warnings that had to be placed upon tobacco products

  • RJR Mcdonald was a tobacco company and they found this violated section 2(b), freedom of expression and it was ultra vires → they were successful

  • Government appealed and the courts overturned because it went against the POG, and was in fact intra-varies

  • RJR appealed to the SCC → split

  • intra vires but it did violate the charter

Comeau v. Canada

  • Mr. Comeau challenged the restriction of the movement of alcohol across the provincial border; this was not its main purpose. Its main purpose was to manage the supply and

  • demand for liquor in New Brunswick. Therefore, the law is constitutional. This case turned on the meaning of section 121 of the Constitution Act, 1867.

  • ● He said that section 121 of the Constitution Act, 1867 guarantees free trade across provincial borders. The Crown disagreed. It argued that section 121 was only meant to prevent provinces from charging tariffs or similar costs at the border. The Crown said the provision did not apply in Mr. Comeau’s situation. The trial judge agreed with Mr. Comeau and dismissed the charge. The New Brunswick Court of Appeal dismissed the Crown’s request for permission to appeal. The Crown appealed to the Supreme Court. The Supreme Court held that while section 121 prohibits laws whose main purpose is to prevent the movement of goods across provincial borders, it does not prohibit legislation that has incidental effects on trade.

  1. Evolution of the Constitution

The evolution of Canada’s Constitution

The development of our constitution has been influenced by a number of key factors over the last 15 years:

  • The historical influence of our british and french roots

  • The move from colony to autonomous independent nation

  • The struggle between federal and provincial govt over legislative authority

Supreme court of canada

  • Highest court of appeal in Canada was the judicial committee of the privy council (JCPC) located in London, England

  • The SCC became the highest appellate court in 1949

World War I

  • Britain would declare war on Germany and her allies for our nation in 1914. Canadian soldiers fought under the authority of the British empire

Treaty of Versailles

  • Prime minister Borden would sign the peace treaty that concludes the war. This begins the move toward greater independence for Canada

Halibut Treaty - 1923

  • Canada and USA sign a trade treaty - our first without requiring British approval

Statute of Westminster - 1931

  • Canada gained full legal autonomy from Britain. Canada gains full control over her foreign affairs


  • During the next 50 years, Canadian governments attempted to patriate the constitution. PM Trudeau succeeded in accomplishing this task in 1982

  • The constitution act includes pre-existing constitutional legislation such as the BNA act but now also includes the Charter of Rights and Freedoms

  1. Trudeau and Constitutional Renewal

Meech Lake Accord 1987 (did not pass)

  • Mulroney and Bourassa: recognized quebec as a distinct society

  • More power to provinces

  • Political reform

  • Critics:

Charlottetown Accord 1992 → failed

Clarity Act

  • The chretien government passed this act in 2000

  • Defines what conditions would have to be met for the government to enter negotiations following a referendum on secession

  • This would proceed to a legislative committee of the house of commons

UNIT III Charter of Rights and Freedoms

  1. Bill of Rights (1960) vs. Charter of Rights (1982)

The bill of rights - 1960

  • The debate as to whether Canada needed a bill of rights began after WWII. During the 1958 election, John Diefenbaker promised a federal bill of rights if he was elected PM.

  • This legislation was introduced in 1960 and was an important achievement in Canadian law

  • Weakness of the bill of rights

  • Only a statute

Jurisdiction of the Charter

  • The charter applies to all government action. It applies to both the federal and provincial governments and all organization and agencies regulated by the federal government

  1. Limits Sections of the Charter

Limits on Rights in the charter section 1

  • The charter guarantees rights and freedoms but section 1 outlines that these rights are subject to reasonable limits

  • This means that the reason for limiting a charter right must be shown to be important enough to justify overriding a constitutionally protected right

Section 1 tests

  • The SCC set out the criteria for establishing that a limit is reasonable in a free and democratic society

Objective test

  • The objective to be served by limiting the Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom

The proportionality Test

  • The test has 3 components:

  • Measures designed to achieve the objective must not be arbitrary or unfair

  • The means should impair the charter right as little as possible

  • There must be a balance between the effects of the law and its objectives

Notwithstanding Clause section 33

  • A government can invoke section 33 of the charter to pass legislation that violates the charter

  • It can only be used for sections 2 and 7 to 15. The legislation can only remain in effect for up to 5 years

Case: R.v. Oakes

  • david oakes was charged with possession of narcotics for the purpose of trafficking but had to prove he did not have the intent to traffic (thanks to section 8)

  • established the Oakes Test

  1. Is the law pressing or substantial?

  2. Is it proportional?

  • rational connection

  • minimal impairment

  1. Do the positives outweigh the negative?

  1. Freedom of Expression Section 2

  • Historical, secular, and spiritual authority have often been entwined, so that people’s religious beliefs and practices defined their relationship with both the church and the monarchy

  • Over the past few centuries, as empires expanded, many people found themselves under the rule of a sovereign whose laws demanded conformity to a state religion

  • Opposition to such conformance grew out of the belief that, regardless of the moral rightness of the beliefs enforced by the state, matters of conscience, including religion, should not be subject to state control

  • Canada’s experience with religious freedom in the post-charter era, deal with subtle forms of religious discriminations, some laws may place certain individuals at a disadvantage because of their religious beliefs and put pressure on them to conform to the religious views of the majority

  • While the Charter respects every individual's freedom of religion as a necessary element of personal dignity, autonomy and self-development, this does not mean that it offers protection to all actions dictated by religious beliefs.

Cases: Keegstra and Zundel

  • A retired history teacher who claimed and taught the holocaust was not real, and was a jewish conspiracy

  • was charged of willfully promoting hatred against an identifiable group

  • He argued that it violated his freedom of expression section 2b of CCRF

  • was convicted, but appealed and his charter arguments were accepted

  • Court upheld the crown’s decision, and it was hate speech, the criminal code was not too broad for section1

A.B. v. Bragg

  • A 15 year old girl named A.B had realized that someone had made a fake facebook profile using her pictures and modified details.

  • It was also accompanied by unflattering commentary and explicit references.

  • She also asked for permission to seek this information anonymously and for a publication ban on the fake profile content. The Supreme Court of Nova Scotia granted the request to disclose the identity but denied anonymity and the publication ban, citing insufficient evidence of specific harm. The Court of Appeal upheld this decision, emphasizing the girl's failure to demonstrate harm justifying restrictions. The case reached the Supreme Court of Canada.

  • The Supreme Court of Canada permitted the 15-year-old girl, A.B., to proceed anonymously in her application for an order requiring the Internet provider to disclose the identity of the relevant IP user(s). The court, however, did not impose a publication ban on the non-identifying content of the fake Facebook profile. In essence, A.B. was granted the right to pursue legal action anonymously, but there was no restriction on making public the parts of the fake profile that did not contain identifying information.

  1. Section 7 Life, Liberty and Security of the Person

The Right to Life

  • We normally associate the right to life with the protection against the loss of one’s life as a result of state action

  • However, could section 7 be interpreted to prohibit abortion because it violates a fetus’s right to life? Could “life” be given a qualitative meaning so that a person could choose when to die?

  • The 2 most contentious issues with respect to life deal with abortion and capital punishment

Right to Liberty

  • Liberty has been difficult to define for Canadian courts. The SCC stated in the Big M Drug Mart case that it should be given a broad and generous definition.

  • Liberty means that individuals have a right to privacy from government intrusion and the right to make decisions regarding enjoyment of life.

Security of the Person

  • Involves laws or governmental action directly threatening or affecting an individual’s physical or bodily integrity.

  • Does it mean property or economic rights? The SCC has not ruled that these rights exist in the charter.


Children’s Aid:

  • Facts and legal issues

  • Was not a life or security violation since they take a child’s life into special consideration

  • Substantive justice and procedural justice

  • Child welfare act ensures parents interests are protected

  • Witnesses were called and cross-examined

  • Parents were present in the heating

  • Judge was not biased

Carter v. Canada

  • Prior to this case, aiding or abetting a person to commit suicide was a criminal offence, which meant that a person could not seek a physician-assisted death.

  • Gloria Taylor was diagnosed with a fatal neurodegenerative disease called amyotrophic lateral sclerosis (ALS). Taylor did not want to “live in a bedridden state, stripped of dignity and independence.”

  • As a result, Taylor challenged the constitutionality of Criminal Code provisions ss. 14 and 241(b), which prohibited assistance in dying.

  • Lee Carter and Hollis Johnson, who had previously taken Carter’s mother to an assisted suicide clinic in Switzerland to fulfill her wish to die with dignity, joined the challenge, along with a physician, and the British Columbia Civil Liberties Association.

  • They argued that the Criminal Code provisions violated the rights set out in sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

  • The SCC unanimously struck down the Criminal Code prohibition on assisted suicide, holding that ss. 14 and 241(b) of the Criminal Code were overbroad, and therefore contrary to s. 7 of the Charter, in a way that cannot be justified by s. 1.

  • Since the prohibition violated s. 7 of the Charter, it was unnecessary to consider violations under s. 15.

Chaoulli v. Quebec

  • George Zeilotis needed hip replacement surgery and heart surgery

  • he waited a year in a waitlist line and went to court arguing it violated section 7 of the CCRF

  • ruled ban on private health insurance, public health has failed to deliver medical care timely

A.C. v. Manitoba

  • 15 year old was admitted to the hospital,and refused blood transfusion because she and her family are Jehovah's Witness and it went against their religion

  • even though she understood why she needed that transfusion, she was still a child and the hospitals took her under the child and family services act, allowing them to make a decision because she is under the age of 16

  • they got the transfusion and was healthy after, but her family appealed this case, saying it violated freedom of religion and section 7, 15

  • Hospital won

*Significance of fundamental justice

  • In the early years of Charter litigation, many lawyers and judges believed that the meaning of the fundamental justice should focus on the right to a fair hearing → procedural

  • However in 1985 the SCC ruled in Re: section 94 of the motor vehicle act that courts could review the content of laws to determine whether they were in accordance with fundamental justice

  • The SCC considers the concept of fundamental justice to be flexible. This means determining what is fair in Canadian society at the particular time. The principles of Fj represents belief in the dignity and worth of the person

  • Section 7 analysis: was there an infringement of life, liberty or security of the person? Does the law violate the principle of fundamental justice

  1. Section 15 Equality Rights

Section 15

  • Section 15 state that every individual is equal before and under the law and has the right to the equal protection of the law without discrimination

  • In Law v. Canada, the SCC established the following framework for analyzing challenges under section 15 of the charter

  • The equality rights guarantee didn’t take effect until 1985, 3 year extension because there might be laws that can be contrary → applied to all provincial law

Formal or Substantively Different Treatment

  • Does the law in question draw a formal distinction between the claimant and others on the basis of one or more personal characteristics?

On what grounds?

  • Is the differential treatment based on one or more enumerated grounds?

Is there discrimination?

  • Does the differential treatment discrimination by imposing burden or denying benefits in a way that involves application of stereotype assumptions about s group or personal characteristic

Vriend v. Alberta

  • Delwin Vriend was dismissed from his job as a lab coordinator because of his sexual orientation.

  • Vriend argues that this breached section 15 of the charter of rights and freedoms.

  • The court found in favour of Vriend that the exclusion of sexual orientation as a protected ground of discrimination from ss. ss. 2(1), 3, 4, 7(1) and 8(1) of the Individual's Rights Protection Act (IRPA) violates s. 15(1) of the Charter and could not be saved under section 1.

  • The Supreme Court of Canada held that the exclusion of sexual orientation as a ground of discrimination in the Act created a distinction that resulted in the denial of equal benefit and protection of the law on the basis of sexual orientation.

Law v. Canada

  • Nancy Law was 30 years old and seeking benefits under the Canadian Pension Plan.

  • The benefits of the pension plan are limited to people over age 35, disabled or with dependents at the time of the deceased's death. Otherwise, the survivor claimant is not entitled to benefits until he or she reaches age 65.

  • She appealed to the Pension Plan Review Tribunal that on the basis of age requirement her section 15(1) rights under the charter were violated.

  • The court ruled that Law’s section 15 rights were not violated.

  • Prior to this case, there had been a sharp divide in the Court in the interpretation of the section 15 test established in Andrews v Law Society of British Columbia. The dispute culminated in this case where the test was reformulated to reflect both sides of the dispute.

Unit IV Criminal Law

  1. Introduction to Criminal Law/Definition of Crime/Purpose of Criminal Law

  • Criminal laws force compliance with the norms of behavior that society believes to be crucial for the individual and collective well-being of its citizens

R. v. Cuerrier

Cuerrier tests positive for HIV and has intercourse with one woman without protection. The woman finds out after having intercourse on a regular basis (no condom). She tested negative but continued having intercourse. After that relationship ends, Cuerrier has a sexual relationship with no condom with another woman. In court, both women said they would not have consented if they knew Cuerrier was HIV positive so he was charged with 2 counts of aggravated assault. Cuerrier was acquitted by the trial judge. The crown's appeal refused to set aside the acquittals and then this appeal was allowed by the SCC. All judges agreed on the decision of the first judge.

  1. The Elements of a Crime

mens rea: guilty mind


  • Knowledge of certain facts van from the necessary mens rea requirement for an offense

  • For the offense of fraud, knowing that a credit card has been stolen is sufficient mens rea for the offense


  • Involves taking of an unjustifiable risk where the result of the action committing the crime is foreseeable


  • Crown can show mens rea by proving that the accused failed to take precautions that a reasonable person would take to avoid causing harm

  • This will also involve act of omission

Wilful Blindness:

  • This results when a person has become aware of the need for inquiry but declines to make it because they do not wish to know the truth

Actus rea: guilty act

  • voluntarily act: assaulting someone, stealing property, damaging someone’s belongings. A voluntary act. A conscience decision

  • omission: Failure to act when legally required. For example: legal duty to care,

  • state of affairs: Just being there is enough, example: possessing firearms or illegal drugs, operating a business without a proper license

  1. Types of Offences


  • small offences

Indictable Offences

  • The most serious offences

  • Police have broader powers of arrests and search

  • Accused may choose to be tried by judge or jury

  • More serious penalties including life imprisonment

  • Ex murder, robbery, arson, sexual assault

  • Tried in superior courts

Hybrid Offences

  • May be tried as either summary or indictable offence

  • The crown decides depending on the circ*mstances of the case, this will involve the background of the accused and the nature of the offense committed

  • Ex. theft under 5000, assault, calling a false fire alarm

Quasi criminal:

  • Provincial jurisdiction: the province has the right to pass laws that fall under the jurisdiction, such as traffic laws and liquor regulations

  • These are known as quasi-criminal laws or regulatory offenses

  • these laws cover less serious offenses

Strict liability: culpability based on the commission of an actus reus and inability to prove the defense of due diligence (taken all reasonable care), prosecution does not need to prove the mens rea. You either did it or not.

  • keeping dangerous animals

  • product liability

  • drunk driving

  • illegal parking

Absolute liability: All that the prosecution had to prove was the accused committed the actus reus of the offense, mens rea is enough to prove someone is guilty, defense of mistake of fact is not available

  1. Parties to an Offence

Involvement in a crime

  • It is not just the person who actually commits an offense who is responsible

  • Anyone who has assisted that person, either before or during the offense, can be charged

  • All of the persons who can be charged are called parties to an offense


  • The person who actually committed the criminal offense


  • A criminal offense that involves helping the perpetrator commit a crime

  • They don't need to present when the offense is committed


  • Encouraging the perpetrator of a crime without actually providing physical assistance

Party to common intention

  • The shared responsibility among criminals for any additional offenses that are committed in the course of the crime they intended to commit

R. v. Hamilton

R. v. Vu

  1. Criminal Offences and Defences


Negating defenses

  • Defenses that raise a reasonable doubt about whether the accused committed the offense charged

  • Negates an essential element in the crown's case either the actus or mens rea

  • Mistake of the law, intoxication, mental disorder, mistake of fact, automatism

Affirmative Defenses

  • Provide justification for an accused’s conducts, or that the accused should be excused from punishment because criminal conduct was the only reasonable option

  • Consent, self-defense, necessity, duress/compulsion, provocation, defense of a dwelling, battered women's syndrome


  • The conditions of being overpowered by drugs or alcohol to the point of losing self-control

  • It is not generally a defense to a crime but the exception is a crime of specific intent

  • Example: a person may be too intoxicated for the subjective intent of murder, but would still be guilty of manslaughter, an objective intent offense

  • Another exception might be someone so intoxicated that it amounts to a mental disorder. However, this defense is rarely used and cannot be used in cases of assault or sexual assault

  • R. v. Brown


  • A condition in which a person acts without being aware of what he or she is doing. For example, someone who sleepwalks gets up and goes to washroom, but does not remember getting up and doing

  • Negates the actus rea of a crime because someone is such a s tate does not act voluntarily- they have no conscience control over their actions

  • There are two types: insane and not insane


First degree murder (either one)

  • Planned

  • Contract killing

  • Victim was a police officer or prision employee

  • Murder committed while hijacking, sexual assault, kidnapping

Second degree murder

  • Anything that is not first degree murder


  • Actus reus: the act, directly or indirectly causing death

  • Mens rea: subjectively intends to cause death ot intends to cause bodily harm and has subjectice knowledge that the harm will liley result in death


  • Actus reus: directly or indirectly causing death

  • Mens Rea: objective foreeability of risk of bodily harm and marked departure from what a reasonable person would have done under the circ*mstances

Culpable homicide

  • Causes the death of a human being by: an unlawful act, criminal negligence, doing anything that causes death by threats or fear of violence

R. v. Parks

Unit V The Criminal Trial

  1. Crime Scene Investigation – chart on types of physical evidence

Crime Scene Investigation – CSI effect articles

  • The first officers at the scene must set boundaries of the crime scene

  • they must take steps to protect the area from accidental or intentional contamination

  • under the authority of the criminal code, officers have the authority to cordon off and refuse entry to a crime scene

  • if the incident involves death, the security of the crime falls under the coroner’s authority

  • crime scene investigation is carried out by officers who are trained in the analysis of physical evidence

  • these officers are responsible for preparing a description of what they find, photographing the scene, and prep diagrams, sketches and collecting evidence

  • police departments have also established procedures for the seizure, handling and storing evidence

Forensic science:

  • alc analysis

  • bio

  • chem

  • anthro

  • entomology

  • firearms

  • odontology

  • toxicology

  • trace elements

  • fingerprints

  1. Arrest

An arrest occurs when the arresting person touches the apprehended person, using words that clearly indicate that he or she is not free to leave. Arrests may take place with or without a warrant.

Steps in a Lawful Arrest

  1. Notice on arrest

  2. Advising the accused that they are under arrest and the offence charged with

  3. Caution 1: right to counsel

  4. Caution 2: right to remain silent

Physically touching the accused to signify custody

These warrants are issued after police provide a justice of the peace with the information that establishes reasonable and probable grounds to believe that an offence has been committed.

R. v. Sinclair

  • Sinclair was charged with second degree murder, he continually asked to speak with his lawyer during questioning but would not speak on the matter.

  • The officer continued questioning Sinclair for nearly five more hours and refused his later requests to speak with a lawyer. During an undercover operation, Sinclair implicated himself in the murder.

  • Following a voir dire, the trial judge found that police had not infringed Sinclair’s rights as guaranteed by the Charter’s s. 10(b).

  • The trial judge admitted the interview, the statements to the undercover officer, and the re-enactment, and the jury convicted him of manslaughter.

  • His appeal was dismissed.

  1. Search and Seizure

  • Search - a breach of someone’s reasonable expectation of privacy; can be of an area or of the person, seizure refers to the taking of anything found upon search

  • Police have no inherent right to search. They must conduct searches only in accordance with the law. The common law rule is that police can search anyone under arrest.

  • This is referred to as a search incidental to arrest. The 3 main purposes of this type of arrest are to ensure the safety of the public and the police officer, to protect evidence, and to discover evidence

  • Search warrant – a document issued by a court empowering police to search specific places. The source of the power to search is found in section 487 of the criminal code

Section 8 of the Charter - states that we have the right to be free from unreasonable search and seizure. This means that a search cannot be arbitrary and must be based on reasonable and probable grounds. This protects from unlawful searches and deals with admissibility of evidence

  • The legality of a search is questioned, a court must decide if the individual’s expectation of privacy is more important than the government’s interest in law enforcement in that particular case.

R. v. Fearon

  • Pictures on his cellphone were obtained as evidence -- ruled a legal search

  • They searched his phone incident to his arrest

R. v. Patrick

  • Garbage bags outside the property line, deemed legal search

  • Patrick argued he had a reasonable expectation of privacy on his garbage bags

R. v. AM

  • School search of student found drugs ruled it was an illegal search

R. v. Stairs

  • Stairs was arrested at his home. They searched his basem*nt upon his arrest, arguing it was incidental to his arrest. Argued that this was an illegal search, Search was legal and evidence was admitted

  1. Bail

Preliminary hearing, disclosure,

General presumption that the accused should be released as soon as possible before trial unless there is reason to believe the accused should still be detained. There are procedural options to ensure the accused appearance in court

appearance notice: issued by a police officer when no arrest is made – informs them of the chrge and the date to appear for fingerprinting, and the court date

summons: issued by a judge or justice

promise to appear / recognizance: issued by an officer after being arrested and taken to the station, is a promise to appear in court at a stated time and place – recognizance requires they pay a certain amount of money if they fail to appear

Judicial interim release: release of an accused pending trial or appeal

Bail hearing: must be held asap or within 24hrs of their detention

Preliminary hearing

  • A hearing held to determine whether sufficient evidence exists to commit an accused for trial in a court of superior jurisdiction.


  • The process and rules governing the exchange of information between the parties to prepare for legal proceedings.

  • There is a obligation on the crown to disclose all their information to the defence

Voir dire

  • A separate hearing in which the trier of law determines whether evidence is admissible and can potentially be entered into evidence in the trial

R. v. Stinchcombe (textbook) - disclosure is an obligation of the crown or else it will lead to a stay in proceedings

  • The SCC decided that fairness requires that the Crown disclose all relevant information to the accused before trial. Relevent information includes all incriminating and exonerating evidence.

  • Someone had testified in favour for Stinchcombe at the preliminary inquiry.

  • The Crown informed Stinchcombe of the existence, but not the contents, of the statements.

R. v. Hall (textbook) - denied bail because it would bring the justice system into disrepute

  • Hall was linked to forensic evidence from a brutal murder.

  • There was a great deal of fear in the community and the community looked to the courts for protection. The judge concluded that Hall’s detention was necessary to maintain confidence in the administration of justice.

  • The SCC held that there was no error in the reasoning of the bail judge.

  1. Section 24 and Evidence admissibility of evidence

Section 24(2) of the Charter: “Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circ*mstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

Exclusion of Evidence

  • When the police have breaeched someone’s rights, the Charter allows a judge to exclude evidence that was gathered as a result of the Charter violation → a violation does not always mean the evidence is inadmissible

  • Exclusion of evidence means that the judge or jury in a trial can’t consider that piece of evidence while making their decision. If the trial is by jury, the jury will usually not even hear or see the evidence

  • The judge will decide – often before the trial starts – that it cannot be brought forward by the prosecutor either through a witness’ testimony (for instance, by a police officer talking about what was found during a search) or as an exhibit (in the case of an item that was found during a search)

  • 24(2) - “bring the administration of justice into disrepute”

  • Make the justice system look bad to the public

R. v. Grant (important !)

  • Police were driving, and decided to stop and speak with Grant to determine if there was any cause for concern.

  • Grant told the police that he was in possession of “a small bag of weed” and a firearm. At this point, the officers arrested and searched Grant, seizing a bag of marijuana and a loaded gun.

  • The SCC held that Grant was psychologically detained when he was told to keep his hands in front of him. He was not informed he had the right to receive counsel upon his detention.

  • Established the criteria for deeming whether or not evidence is admissible

  • “Grant” Test

    • How serious was the violation

    • What was the impact of the violation on the accused

    • What would the impact of the exclusion of the evidence have on society’s interests in this case

  • The SCC held that despite the Charter breaches, the gun should not be excluded as evidence against Grant and, consequently, the conviction was upheld. Following this case, this analysis became the new legal test for determining whether or not evidence obtained through a Charter breach should be excluded.

  1. Confessions

  • A confession must be voluntary in order to be admissible so that police interference or abuse does not result in convictions.

R. v. Spencer

  • Spencer was charged and convicted after he offered to confess in exchange for a visit with his girlfriend and that she would not be charged. The trial judge admitted his confessions and she was convicted.

  • Spencer appealed saying that his convictions violated his s. 11 Charter rights. The SCC ruled that the police did not unfairly exploit Spencer’s confession and affirmed the trial judge’s ruling on voluntariness. induced confessions will be excluded.

R. v. Hart

  • R. v. Hart set the common law precedent that confessions obtained during Mr. Big operations must be conducted in a way that ensures the accused’s rights are upheld. all three of Hart’s confessions were excluded due to inadequate legislation that protects accused persons who confess during Mr Big operations

  • Even though they got a confession, they established criteria for the future of Mr. Big operations.

  • Determining whether the confession is reliable and would not unfairly prejudice the accused at trial.

  • Addressing the risk of police misconduct. The trial judge will examine whether the confession was obtained through violence or abuse.

  1. Constitutional Rights of an Accused/Trial principles

R. v. Jordan

R. v. Sheppard

  • judges have to give reasons for their rulings; he convicted him without explaining why

  • Sheppard was charged with theft of two windows from a local supplier.

  • The only evidence against him came from his ex-girlfriend who testified that the accused had confessed to her that he stole the windows to use in his house; however, there was no evidence that a search had been made of his premises and no stolen windows were found.

  • The judge convicted him without giving any reasons.

  • He was found guilty.

  • The SCC upheld the appeal ruling, thereby entitling Sheppard to another trial.

  1. The Court System and Courtroom

The hierarchy of the court system - supreme court at the top (9 justices)

Role of courtroom participants

  • Accused: the person who is alleged to have committed the criminal offence and who has been charged

  • Defence Counsel: The term for the party appealing the judgement

  • Duty Counsel: A lawyer paid by Legal Aid Ontario to help an accused person who cannot afford a defence counsel.

    • They can give advice and basic assistance with the court process, but cannot replace a lawyer on a file by assisting the accused with asking for a delay, doing some simple plea bargaining with the crown, conducting bail hearings, and assisting with guilty pleas and sentencing.

  • Court Clerk: Court official who helps the judge make sure the trial is run smoothly

    • They swear in witnesses, mark exhibits, open/close the court, and call for adjournments

  • Court Reporter: Court official who keeps a written record of everything said in court so it can be used as reference if needed

  • Crown Attorney: They act on behalf of the attorney general to prosecute cases

    • They review police files and are meant to present the court with all the relevant evidence to show guilt beyond a reasonable doubt

  • Judge: Usually has a legal background

    • They decide the outcome of a trial and the sentencing when the case is criminal

  • Witnesses: Witnesses are members of the public who have some knowledge about the accused or the event and are brought into the courtroom to give evidence that helps a judge or jury decide the outcome of the case.

  1. David Milgaard story

  1. Evidence – Types of evidence

Mostly contained in common law some provisions found in statute law

Canada Evidence Act

  • Admissibility of evidence is qurestioned during trial, judge orders a voir dire (trial within a trial to determine if the evidence can be shown to the jury)

Self incrimination

  • CCRF section 13 protects witnesses

  • Behaviours or evidence that indicates one’s guilt

  • Designed to encourage witnesses to answer all the questions

  • Canada evidence act - witnesses can object to any questions on the grounds of self-incrimination

Types of Evidence

Direct evidence

  • Testimony to prove an alleged fact. An eyewitness has seen or heard the alleged events

Circ*mstantial Evidence

  • Evidence that allows a judge or jury to to accept a fact based on a set of known circ*mstances. A fact that can be used to infer another fact.

Privileged communication

  • Not required as evidence (spouse, doctor, clergy)

Similar fact evidence

  • Shows the accused has commited similar offences in the past

Hearsay Evidence

  • Something that someone other than the witness has sasid or written

  • Usually not admitted in court

  • admissible :quoting a dying person if that evidence would have been admitted if the person had lived or proof a statement was made

Opinion Evidence

  • What an expert witness thinks about certain facts of a case

  • Common experts are medical doctors and police officers

  • Must be on topic that is outside the “experience and knowledge of a judge or jury” and relevant to the case

Character Evidence

  • To show negative characteristics and previous convictions

  • Crown: limited in use – jury must decide on facts of the caser not character of the witness or their history

  • Defence - introduced to support accused credibility, once the witness is introduced, the crown is permitted to question

  • Usually raised by the defence, if they use it to prove good character then it's free ball for the crown to use bad character


  • Must be an accurate portrait of the crime scene

  1. The Jury – Jury challenges/Jury vetting

  • Role of the jury in the criminal judicial system

  • Panel of 75-300 people from voters list

  • A typical jury consists of 12 people in canada

  • They listen to the evidence and discuss the case while sequestered (not allowed to go home or read any media that may infleucne their decision) to find a verdict

  • Jury verdict must be unanimous

  • A jury that is not unanimous is a hung jury – they must spend a reasonable amount of time before it is accepted as a hung jury

Jury challenges

  • Challenge for cause: A formal objection to a prospective juror for specific reasons; formed an opinion on the case, may not speak the language

    • Any number of challenges for a cause can be made, as long as he judge rules the causes as valid

    • If one side challenges the other can try to prove the cause is untrue

    • Lawyers can make a motion to ask potential jurors of their racial views

  • Peremptory Challenges: excluding a juror without any reason

    • no longer allowed after a case where the defence used them to exclude any potential jurors who were visibly Indigenous in a trial where the accused killed an Indigenous man.

LAW EXAM REVIEW Notes | Knowt (2024)


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