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22 Cards in this Set
- Front
- Back
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What is the Grant test for determining if an accused has been detained?
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1. Whether a reasonable person would conclude that he or she had been deprived of the state of liberty of choice. Factors include:
a. Circumstances giving rise to the encounter as they would reasonably be perceived by the individual. b. The nature of the police conduct. c. The particular characteristics or circumstances of the individual. |
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What is the Mann test for determining grounds for investigative detention?
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1. Police may detain if there are reasonable grounds to suspect in all the circumstances hat the detention is reasonably necessary on an objective view of the circumstances:
a. Extent to which interference with individual liberty is necessary to the performance of the officer's duty b. The liberty interfered with c. The nature and extent of the interference |
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What is the Cloutier test for search incidental to arrest?
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1. Police officers do not need reasonable grounds to conduct a search incidental to arrest.
2. Three general principles: a. No duty to conduct a search, under police discretion b. Search must have a valid objective c. Search cannot be conducted in an abusive fashion; constraint must be proportionate to objectives sought |
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What is the Edwards test for determining if an accused had a reasonable expectation of privacy (s.8)?
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1. Determined on the basis of the totality of the circumstances:
a. Presence at the time of the search b. Possession or control of the property or place searched c. Ownership of the property or place d. Historical use of the property or item e. Ability to regulate access f. Existence of a subjective expectation of privacy g. The objective reasonableness of the expectation |
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What is the Hunter test for determining if a search is reasonable (s.8)?
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1. Was there prior authorization?
2. Was the authorization made by a person capable of acting judicially? 3. Was there sufficient evidence to make a judicial decision? a. Were there reasonable grounds to believe an offence had been committed? b. Were there reasonable grounds to believe evidence relating to the offence would be found at the place of the search? |
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What is the Araujo test for determining if wiretap evidence is admissible?
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1. Investigative necessity - must be no other reasonable method of investigation
2. Affidavit must: a. Be clear and concise b. Set out the facts fully and frankly c. Have facts gained from those with best firsthand knowledge. 3. Is there reliable evidence that might reasonable be believed on the basis of which the authorization could have been issued? |
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What is the Garofali test for affiant cross-examination?
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1. Did the defense show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value?
a. What is the effect of the proposed cross-examination? b. Is there a reasonable likelihood that the cross-examination will undermine the basis of the authorization? |
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What is the S.R.J. test for determining if derivative evidence is admissible?
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1. Could the evidence not have been obtained but for the witnesses testimony?
2. Does the probative value of the evidence outweigh the prejudice caused to the accused? |
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What is the Cooper test for convicting on circumstantial evidence?
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1. Is it made plain to the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts?
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What is the Nikolovski test for determining admissibiliy of a videotape?
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1. Videotape used to determine:
a. Whether a crime has been committed b. Whether the crime was committed by the accused 2. Two considerations: a. Is the video of sufficient clarity and quality? b. Does the video show the accused for a sufficient time to conclude that identification has been proven beyond a reasonable doubt? |
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What is the McClure test for an accused to obtain solicitor-client communication?
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1. Is the accused's innocence at stake?
2. Has the accused demonstrated an evidentiary basis to conclude that the solicitor-client communication exists that could raise a reasonable doubt as to the accused's guilt? 3. Has the judge examined the communication to determine whether it is likely to raise a reasonable doubt as to the accused's guilt? 4. Is the information available from any other source? |
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What is the Smith test for obtaining solicitor-client communication?
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1. Does public safety outweigh the solicitor-client privilege?
a. Is there a clear risk to an identifiable person or group of persons? b. Is there a risk of bodily harm or death? c. Is the danger imminent? 2. Would a reasonable observer, given all the facts for which the privilege is sought, consider the danger posed by the accused to be serious, clear, and imminent? |
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What is the Wigmore test for extending privilege?
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1. Communications must originate in a confidence that they will not be disclosed.
2. Confidentiality must be essential to the full and satisfactory maintenance of the relations between the parties. 3. Relation must be one which in the community ought to be fostered. 4. Injury to the relation due to the disclosure of the communication must be greater than the benefit gained by litigation. |
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What is the Handy test for admitting similar fact evidence?
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1. Has the Crown satisfied the trial judge on a balance of probabilities that the probative value of the evidence is greater than its potential prejudice?
a. Proximity in time of similar acts b. Extent to which other acts are similar in detail to the charge c. Number of occurrences of the similar act d. Circumstances surrounding the similar acts e. Any distinctive feature unifying the incidents f. Intervening events g. Any other fact |
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What is the Mohan test for admitting expert evidence?
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1. Relevant
2. Necessity in assisting the trier of fact 3. No exclusionary rule 4. Properly qualified expert |
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What is the Abbey test for admitting expert evidence based on hearsay?
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1. Relevant
2. Shows information on which opinion is based, does not prove existence of facts 3. Appropriate weight given to opinion 4. Facts upon which opinion is based must be proven |
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What is the Grant test for evidence exclusion under s.24(2)?
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1. What is the effect of admitting the evidence on society's confidence in the justice system regarding:
a. The seriousness of the Charter-infringing state conduct b. The impact of the breach on the Charter-protected interests of the accused c. Society's interest in the adjudication of the case on its merits |
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What is the Oickle test for determining the voluntariness of a statement made to a person in authority?
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1. Do the circumstances surrounding the confession give rise to a reasonable doubt as to the confession's voluntariness?
a. Threats or promises b. Oppression c. Operating Mind Requirement (Whittle Test: Did the accused understand what he was saying and that it could be used against him) d. Police trickery (did the police deception shock the community?) |
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What is the Mannimen test for right to counsel?
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1. Did the police give the detainee a reasonable opportunity to exercise his right?
2. Did the police cease asking questions or attempting to elicit information until the detainee has a reasonable opportunity to retain and instruct counsel? |
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What is Brydges duty counsel?
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1. The duty of the police to provide suspects with information about the availability of legal aid and duty counsel
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What is the Clarkson test for determining waiver of s.10(b)?
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1. Did the accused voluntarily waive his right on a true appreciation of the consequences of giving up the right?
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What is the Broyles test for determining if an accused's right to silence was violated?
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1. Was the statement made voluntarily to a police informant?
a. Was the undercover agent actively eliciting the information? (Includes nature of the exchange and nature of the relationship between the accused and state agent) |
