JUST 1010 Lecture Notes - Lecture 3: Duty Counsel, Fundamental Justice, Frisking

58 views10 pages
14 Jun 2018
School
Department
Course
Lecture:
Charter Rights
-
Arrests vs. Detention
-
Investigative Detention
-
Search during Investigative Detention
-
Video
Investigative detention
-
Group organization
-
-
Detention
What law is paramount regarding Detention?
-
Charter Protection
Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice.
7.
Everyone has the right to be secure against unreasonable search or seizure.
8.
Everyone has the right not to be arbitrarily detained or imprisoned.
9.
Charter Requirements
Everyone has the right on arrest or detention
10.
To be informed promptly of the reasons therefore;
(a)
To retain and instruct counsel without delay and to be informed of that right; and
(b)
To have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
(c)
Right to Counsel
I am arresting you for (briefly describe the reasons). It is my duty to inform you that you
have the right to retain and instruct counsel without delay. You have the right to
telephone any lawyer you wish. You also have the right to free advice from a legal aid
lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan
for assistance. 1-800-265-0451 is a toll free number that will put you in contact with a
legal aid duty counsel lawyer for free legal advice RIGHT NOW.
Do you understand? Do you wish to call a lawyer now?
Charter Remedies
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
24.
(2) Where, in proceedings under subsection (1), 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 circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
24.
Arrest
In law, the seizure and detention of a person, either to bring him before a court
body or official, or to otherwise secure the administration of the law.
-
Arrest and Detention
Neither term is defined in any Canadian federal statute.
-
The terms are defined by case law.
-
Arrest is defined as:
A formal actual restraint on a person's liberty without that person's consent,
or
Formal physical custody of a person with the intent to detain.
Detention is defined as:
Deprivation of liberty by physical constraint.
The assuming of control over the movement of a person by demand or
direction of a police officer.
A psychological compulsion existing within a person in the form of a
perception that his or her freedom has been removed.
Key points regarding detention:
A detention can occur with or without the officer's intention to detain.
-
The key element defining detention is what the detained person believes.
-
One of the elements of detention is whether or not the officer would have
allowed the suspect to leave if he or she decided to walk away.
-
Investigative Detention
A series of case law decisions from 1993 to present have recognized another belief
and another type of custody called investigative detention.
-
Investigative detention derives from a common-law authority.
-
It is defined as the brief removal of an individual's freedom for investigative
purposes. It involves significant psychological restraint without the individual's
consent, but with no arrest made.
-
An investigative detention requires "reasonable grounds to suspect" that a person
has committed any criminal offence.
-
The type of detention authorized as a "limited investigative detention" -an
abstract term that restricts the duration and subsequent investigative procedures.
-
After an investigative detention, the detained person may be searched if
reasonable grounds exist that any person's safety is at risk.
-
A limited investigative detention must be brief.
Only two investigative procedures are permitted:
A protective pat-down” search of the detained person.1.
A brief questioning of the detained person, who is under no obligation to answer
any questions by the police.
2.
Investigative Detention -
History
Understanding investigative detention is simple if you understand four key
concepts:
Legitimacy of Risk1.
Common-Law Police OfficersDuties2.
History of Articulable Cause -Police Authority to Detain3.
The Transformational Case: R. v. Mann (2004)4.
Legitimacy of Risk
R. v. Willis (2003) and R. v. Lerke (1986):
Reality Potential violence toward the police.1.
Priority Officer safety and self-protection take priority over all other
investigative objectives.
2.
Expect the Unexpected expect the worst. It is reasonable to believe that the
worst consequence is a possibility.
3.
Credibility. An officer is justified in detaining and searching a suspect (for
weapons) near a crime scene shortly after a “crime in progress(not for evidence
relating to an offence
4.
Common-Law Police Officers Duties
The scope of a police officer’s duties includes three goals:
The preservation of peace.1.
The prevention of crime.2.
The protection of life and property.3.
Investigative Detention
Two standards are used to determine the validity of an investigative detention
The Crown must first prove that the detention fell within the general scope of
police duties (see previous slide).
1.
The Crown must prove the officer had the reasonable grounds to suspect belief
prior to imposing the investigative detention.
2.
Investigative Detention
The Transformational Case: R. v. Mann (2004)
The two goals of responding to a crime in progress, in order of importance:
Protect yourself and the public from death or injury.1.
Form reasonable grounds to believe a specific person or persons committed the
offence.
2.
Self-protection as a justification for investigative detention needs to be understood
in relation to three levels of belief:
No belief no detention and no search without arrest.1.
Mere Suspicion guidelines established in R. v. Mann (2004).2.
Reasonable Grounds authorizes an arrest and an automatic search for both
weapons and evidence.
3.
Mann Guiding Principles
The term “detention has many definitions and interpretations.1.
Is every person stopped by the police for whatever length detained Yes.
Does it constitute a detention in each case? No.
A detention occurs only when “significant physical or psychological restraint
occurs.
There are no guidelines for what “significantmea
There is a common-law authority allowing police to detain for investigative
purposes.
2.
There is nogeneralinvestigative detention authority. Investigative detention
cannot occur without justification.
3.
Police have a limited” power to detain for investigative purposes. They must have
reasonable grounds to suspect that a person is connected to a specific crime.
4.
Reasonable grounds to suspect is an additional level of belief that falls between
mere suspicion and reasonable grounds to arrest
5.
Reasonable grounds to detain has been expanded to cover “a foreseeable future
offence” in addition to recent or ongoing criminal offences.
6.
A justified investigative detention authorizes a partial search (weapons only).7.
A full search aims to uncover both weapons and evidence of an offence.
-
A justified investigative detention authorizes only a protective pat-down search of
the detained person:
weapons must be the target of the search.(a)
evidence related to a crime cannot be the target of the search.(b)
the method cannot exceed pat-down.(c)
Unlike search incident to arrest, a search incident to investigative detention is
never automatic. Some concrete evidence must prove that a search was needed for
protection.
8.
The duration of an investigative detention must be brief. 9.
Precise notes and testimony are needed to explain:
The duration of the actual detention.
The activity that occurred during it.
There is no obligation on the detained person to answer any questions asked by the
police, including questions about identity.
10.
Investigative detention confers on police the benefit of self-protection.
-
R. v. Mann permits the police to detain and search a suspect when there is a risk
to officer safety, and reasonable grounds exists.
-
Arrest and Detention
are NOT THE SAME
THING.
Limitation &
Accountability
Know the importance
of REASONABLE
GROUNDS.
W3 Investigative Detention
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 10 pages and 3 million more documents.

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Lecture:
Charter Rights
-
Arrests vs. Detention
-
Investigative Detention
-
Search during Investigative Detention
-
Video
Investigative detention
-
Group organization
-
Assignment on Practicum #1
-
Detention
What law is paramount regarding Detention?
-
Charter Protection
Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice.
7.
Everyone has the right to be secure against unreasonable search or seizure. 8.
Everyone has the right not to be arbitrarily detained or imprisoned.9.
Charter Requirements
Everyone has the right on arrest or detention10.
To be informed promptly of the reasons therefore; (a)
To retain and instruct counsel without delay and to be informed of that right; and (b)
To have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
(c)
Right to Counsel
I am arresting you for (briefly describe the reasons). It is my duty to inform you that you
have the right to retain and instruct counsel without delay. You have the right to
telephone any lawyer you wish. You also have the right to free advice from a legal aid
lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan
for assistance. 1-800-265-0451 is a toll free number that will put you in contact with a
legal aid duty counsel lawyer for free legal advice RIGHT NOW.
Do you understand? Do you wish to call a lawyer now?
Charter Remedies
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
24.
(2) Where, in proceedings under subsection (1), 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 circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
24.
Arrest
In law, the seizure and detention of a person, either to bring him before a court
body or official, or to otherwise secure the administration of the law.
-
Arrest and Detention
Neither term is defined in any Canadian federal statute.
-
The terms are defined by case law.
-
Arrest is defined as:
A formal actual restraint on a person's liberty without that person's consent,
or
Formal physical custody of a person with the intent to detain.
Detention is defined as:
Deprivation of liberty by physical constraint.
The assuming of control over the movement of a person by demand or
direction of a police officer.
A psychological compulsion existing within a person in the form of a
perception that his or her freedom has been removed.
Key points regarding detention:
A detention can occur with or without the officer's intention to detain.
-
The key element defining detention is what the detained person believes.
-
One of the elements of detention is whether or not the officer would have
allowed the suspect to leave if he or she decided to walk away.
-
Investigative Detention
A series of case law decisions from 1993 to present have recognized another belief
and another type of custody called investigative detention.
-
Investigative detention derives from a common-law authority.
-
It is defined as the brief removal of an individual's freedom for investigative
purposes. It involves significant psychological restraint without the individual's
consent, but with no arrest made.
-
An investigative detention requires "reasonable grounds to suspect" that a person
has committed any criminal offence.
-
The type of detention authorized as a "limited investigative detention" -an
abstract term that restricts the duration and subsequent investigative procedures.
-
After an investigative detention, the detained person may be searched if
reasonable grounds exist that any person's safety is at risk.
-
A limited investigative detention must be brief.
Only two investigative procedures are permitted:
A protective pat-down” search of the detained person.1.
A brief questioning of the detained person, who is under no obligation to answer
any questions by the police.
2.
Investigative Detention -
History
Understanding investigative detention is simple if you understand four key
concepts:
Legitimacy of Risk1.
Common-Law Police OfficersDuties2.
History of Articulable Cause -Police Authority to Detain3.
The Transformational Case: R. v. Mann (2004)4.
Legitimacy of Risk
R. v. Willis (2003) and R. v. Lerke (1986):
Reality Potential violence toward the police.1.
Priority Officer safety and self-protection take priority over all other
investigative objectives.
2.
Expect the Unexpected expect the worst. It is reasonable to believe that the
worst consequence is a possibility.
3.
Credibility. An officer is justified in detaining and searching a suspect (for
weapons) near a crime scene shortly after a “crime in progress(not for evidence
relating to an offence
4.
Common-Law Police Officers Duties
The scope of a police officer’s duties includes three goals:
The preservation of peace.1.
The prevention of crime.2.
The protection of life and property.3.
Investigative Detention
Two standards are used to determine the validity of an investigative detention
The Crown must first prove that the detention fell within the general scope of
police duties (see previous slide).
1.
The Crown must prove the officer had the reasonable grounds to suspect belief
prior to imposing the investigative detention.
2.
Investigative Detention
The Transformational Case: R. v. Mann (2004)
The two goals of responding to a crime in progress, in order of importance:
Protect yourself and the public from death or injury.1.
Form reasonable grounds to believe a specific person or persons committed the
offence.
2.
Self-protection as a justification for investigative detention needs to be understood
in relation to three levels of belief:
No belief no detention and no search without arrest.1.
Mere Suspicion guidelines established in R. v. Mann (2004).2.
Reasonable Grounds authorizes an arrest and an automatic search for both
weapons and evidence.
3.
Mann Guiding Principles
The term “detention has many definitions and interpretations.1.
Is every person stopped by the police for whatever length detained Yes.
Does it constitute a detention in each case? No.
A detention occurs only when “significant physical or psychological restraint
occurs.
There are no guidelines for what “significantmea
There is a common-law authority allowing police to detain for investigative
purposes.
2.
There is nogeneralinvestigative detention authority. Investigative detention
cannot occur without justification.
3.
Police have a limited” power to detain for investigative purposes. They must have
reasonable grounds to suspect that a person is connected to a specific crime.
4.
Reasonable grounds to suspect is an additional level of belief that falls between
mere suspicion and reasonable grounds to arrest
5.
Reasonable grounds to detain has been expanded to cover “a foreseeable future
offence” in addition to recent or ongoing criminal offences.
6.
A justified investigative detention authorizes a partial search (weapons only).7.
A full search aims to uncover both weapons and evidence of an offence.
-
A justified investigative detention authorizes only a protective pat-down search of
the detained person:
weapons must be the target of the search.(a)
evidence related to a crime cannot be the target of the search.(b)
the method cannot exceed pat-down.(c)
Unlike search incident to arrest, a search incident to investigative detention is
never automatic. Some concrete evidence must prove that a search was needed for
protection.
8.
The duration of an investigative detention must be brief. 9.
Precise notes and testimony are needed to explain:
The duration of the actual detention.
The activity that occurred during it.
There is no obligation on the detained person to answer any questions asked by the
police, including questions about identity.
10.
Investigative detention confers on police the benefit of self-protection.
-
R. v. Mann permits the police to detain and search a suspect when there is a risk
to officer safety, and reasonable grounds exists.
-
Arrest and Detention
are NOT THE SAME
THING.
Limitation &
Accountability
Know the importance
of REASONABLE
GROUNDS.
W3 Investigative Detention
Unlock document

This preview shows pages 1-3 of the document.
Unlock all 10 pages and 3 million more documents.

Already have an account? Log in
Lecture:
Charter Rights
-
Arrests vs. Detention
-
Investigative Detention
-
Search during Investigative Detention
-
Video
Investigative detention
-
Group organization
-
Assignment on Practicum #1
-
Detention
What law is paramount regarding Detention?
-
Charter Protection
Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice.
7.
Everyone has the right to be secure against unreasonable search or seizure. 8.
Everyone has the right not to be arbitrarily detained or imprisoned.9.
Charter Requirements
Everyone has the right on arrest or detention10.
To be informed promptly of the reasons therefore; (a)
To retain and instruct counsel without delay and to be informed of that right; and (b)
To have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
(c)
Right to Counsel
I am arresting you for (briefly describe the reasons). It is my duty to inform you that you
have the right to retain and instruct counsel without delay. You have the right to
telephone any lawyer you wish. You also have the right to free advice from a legal aid
lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan
for assistance. 1-800-265-0451 is a toll free number that will put you in contact with a
legal aid duty counsel lawyer for free legal advice RIGHT NOW.
Do you understand? Do you wish to call a lawyer now?
Charter Remedies
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
24.
(2) Where, in proceedings under subsection (1), 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 circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
24.
Arrest
In law, the seizure and detention of a person, either to bring him before a court
body or official, or to otherwise secure the administration of the law.
-
Arrest and Detention
Neither term is defined in any Canadian federal statute.
-
The terms are defined by case law.
-
Arrest is defined as:
A formal actual restraint on a person's liberty without that person's consent,
or
Formal physical custody of a person with the intent to detain.
Detention is defined as:
Deprivation of liberty by physical constraint.
The assuming of control over the movement of a person by demand or
direction of a police officer.
A psychological compulsion existing within a person in the form of a
perception that his or her freedom has been removed.
Key points regarding detention:
A detention can occur with or without the officer's intention to detain.
-
The key element defining detention is what the detained person believes.
-
One of the elements of detention is whether or not the officer would have
allowed the suspect to leave if he or she decided to walk away.
-
Investigative Detention
A series of case law decisions from 1993 to present have recognized another belief
and another type of custody called investigative detention.
-
Investigative detention derives from a common-law authority.
-
It is defined as the brief removal of an individual's freedom for investigative
purposes. It involves significant psychological restraint without the individual's
consent, but with no arrest made.
-
An investigative detention requires "reasonable grounds to suspect" that a person
has committed any criminal offence.
-
The type of detention authorized as a "limited investigative detention" -an
abstract term that restricts the duration and subsequent investigative procedures.
-
After an investigative detention, the detained person may be searched if
reasonable grounds exist that any person's safety is at risk.
-
A limited investigative detention must be brief.
Only two investigative procedures are permitted:
A protective pat-down” search of the detained person.1.
A brief questioning of the detained person, who is under no obligation to answer
any questions by the police.
2.
Investigative Detention -
History
Understanding investigative detention is simple if you understand four key
concepts:
Legitimacy of Risk1.
Common-Law Police OfficersDuties2.
History of Articulable Cause -Police Authority to Detain3.
The Transformational Case: R. v. Mann (2004)4.
Legitimacy of Risk
R. v. Willis (2003) and R. v. Lerke (1986):
Reality Potential violence toward the police.1.
Priority Officer safety and self-protection take priority over all other
investigative objectives.
2.
Expect the Unexpected expect the worst. It is reasonable to believe that the
worst consequence is a possibility.
3.
Credibility. An officer is justified in detaining and searching a suspect (for
weapons) near a crime scene shortly after a “crime in progress(not for evidence
relating to an offence
4.
Common-Law Police Officers Duties
The scope of a police officer’s duties includes three goals:
The preservation of peace.1.
The prevention of crime.2.
The protection of life and property.3.
Investigative Detention
Two standards are used to determine the validity of an investigative detention
The Crown must first prove that the detention fell within the general scope of
police duties (see previous slide).
1.
The Crown must prove the officer had the reasonable grounds to suspect belief
prior to imposing the investigative detention.
2.
Investigative Detention
The Transformational Case: R. v. Mann (2004)
The two goals of responding to a crime in progress, in order of importance:
Protect yourself and the public from death or injury.1.
Form reasonable grounds to believe a specific person or persons committed the
offence.
2.
Self-protection as a justification for investigative detention needs to be understood
in relation to three levels of belief:
No belief no detention and no search without arrest.1.
Mere Suspicion guidelines established in R. v. Mann (2004).2.
Reasonable Grounds authorizes an arrest and an automatic search for both
weapons and evidence.
3.
Mann Guiding Principles
The term “detention has many definitions and interpretations.1.
Is every person stopped by the police for whatever length detained Yes.
Does it constitute a detention in each case? No.
A detention occurs only when “significant physical or psychological restraint
occurs.
There are no guidelines for what “significantmea
There is a common-law authority allowing police to detain for investigative
purposes.
2.
There is nogeneralinvestigative detention authority. Investigative detention
cannot occur without justification.
3.
Police have a limited” power to detain for investigative purposes. They must have
reasonable grounds to suspect that a person is connected to a specific crime.
4.
Reasonable grounds to suspect is an additional level of belief that falls between
mere suspicion and reasonable grounds to arrest
5.
Reasonable grounds to detain has been expanded to cover “a foreseeable future
offence” in addition to recent or ongoing criminal offences.
6.
A justified investigative detention authorizes a partial search (weapons only).7.
A full search aims to uncover both weapons and evidence of an offence.
-
A justified investigative detention authorizes only a protective pat-down search of
the detained person:
weapons must be the target of the search.(a)
evidence related to a crime cannot be the target of the search.(b)
the method cannot exceed pat-down.(c)
Unlike search incident to arrest, a search incident to investigative detention is
never automatic. Some concrete evidence must prove that a search was needed for
protection.
8.
The duration of an investigative detention must be brief. 9.
Precise notes and testimony are needed to explain:
The duration of the actual detention.
The activity that occurred during it.
There is no obligation on the detained person to answer any questions asked by the
police, including questions about identity.
10.
Investigative detention confers on police the benefit of self-protection.
-
R. v. Mann permits the police to detain and search a suspect when there is a risk
to officer safety, and reasonable grounds exists.
-
Arrest and Detention
are NOT THE SAME
THING.
Limitation &
Accountability
Know the importance
of REASONABLE
GROUNDS.
W3 Investigative Detention
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Document Summary

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Everyone has the right to be secure against unreasonable search or seizure. Everyone has the right not to be arbitrarily detained or imprisoned. Everyone has the right on arrest or detention. To be informed promptly of the reasons therefore; To retain and instruct counsel without delay and to be informed of that right; and. To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. I am arresting you for (briefly describe the reasons). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer.

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