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Final Legal Exam

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mcsmith's version from 2015-07-19 22:25

Section

Question Answer
• Rule of hearsaycan’t say what someone told you in court
• Objections to hearsay rule:1. Statement not given under oath at the time it was originally made
2. No opportunity to cross-examine the person who originally made the statement
3. Stories change in the re-telling
4. Not the “best evidence”
5. Judge or jury cannot observe the demeanor of the witness (“I killed the clerk?” vs. “He said, ‘I killed the clerk’”)
• Exceptions to the hearsay rule: (7)1. Res gestae or spontaneous statements a. Acts or words which are said immediately before, during or immediately after an incident AND are so closely related to the incident that they explain, add to or form part of the incident
2. Dying declaration a. Victim must know he is going to die b. Statements must relate to the circumstances of his impending death i. i.e. “this is who shot me” not, “I saw Vinnie kill this guy 6 years ago” c. Victim must die d. Had the victims lived - he would have been a competent witness e. Statement must be voluntary
3. Declaration made in the course of duty - When a person is under a duty to record or report his actions or observations and does record or report such actions or observations contemporaneously, and dies (of any cause), the record or report is admissible - Essential Elements: 1. Duty to record or report his actions or observations 2. Records contemporaneously 3. Dies of any cause
4. Implied admissions - “If an accusation is made against a party, in circumstances where it would be reasonable to expect a denial should that party regard the accusation as untrue, the party’s failure to deny or protest will be received into evidence as an implied admission”
5. Voluntary statements a. To a person in authority b. Two types of statements: c. Inculpatory statements: statement that is against the best interest of accused d. Exculpatory statements: statement that is in the best interest of the accused
6. Testimony in previous preceedings a. S. 715
7. The principled approach a. Is the statement necessary? b. Is the statement reliable?
• Voire dire:a trial within a trial held to determine the admissibility of evidence
• Essential elements of dying declaration1. Victim must know he is going to die
2. Statements must relate to the circumstances of his impending death i. i.e. “this is who shot me” not, “I saw Vinnie kill this guy 6 years ago”
3. Victim must die
4. Had the victims lived - he would have been a competent witness
5. Statement must be voluntary
• Spontaneous statement: o Acts or words which are said immediately before, during or immediately after an incident AND are so closely related to the incident that they explain, add to or form part of the incident
• Rule of best evidence:o You have to use the best evidence
• Exception to rule of best evidence:1. Photocopies a. Of records (driving, medical, criminal, other, government) 2. Certificates a. BTA, drug analysis, DNA 3. Photos and drawings
• 3 elements to collect corroborative evidence (RIM):1. Relevant a. Capable of implicating the accused 2. Independent a. From a source other than a main witness 3. Material a. Important - going to the substance of the matter
• Rule of opinion evidence:o A witness may not express his opinion in court regarding a matter about which …
• 2 Exceptions to the rule of opinion evidence1. Lay opinion i.e. distances, lighting; 2. Expert opinion
• Recognize in a scenario when somebody is breaking the rule of evidence of bad charactero NOT admissible if it is presented to show the person’s propensity to commit crime
o Should say “based on my previous dealings with this person” rather than “I’ve arrested him for drug trafficking in the past”
o Then if defense asks you, “well what were those previous dealings?” bonus! Go ahead and talk about the character of the accused
• Know what are the exceptions to rule of bad character 1. Similar facts to prove the accused had knowledge; 2. When defense raises the issue themselves
• Essential elements related to child sex offences: 151 152 153o Definition of child (ages)
o Role of authority
o Age changes (to include 17 year olds so teachers can’t have sex with their 17 year old students)
151 Sexual Interference • Every person who • For a sexual purpose • Touches (directly or indirectly) • With part of the body OR object • Any part of the body • Of a person under 16
152 Invitation to Sexual Touching• Every person who
• For a sexual purpose
• Invites, counsels, or incites
• A person under 16
• To touch (directly or indirectly)
• With part of body or object
• The body of any person (including the body of the person who so invites, counsels, or incites)
• And the body of a person under 16
153 Sexual Exploitation• Every person [that is]
• In a position of trust or authority towards a young person
• When the young person is dependent on them OR is in a relationship that is exploitative of the young person
• AND who, for the sexual purpose:
• Touches (directly or indirectly)
• With a part of the body or an object
• Any part of the body of the young person OR
• Invites, counseld, or incites
• A young person
• To touch (directly or indirectly)
• With part of the body or with an object
• The body of any person (including the body of the person who invites, counsels or incites)
• And the body of the young person
• 2 physical elements to fraud1. Deceit 2. Deprivation (lying with intent to deprive someone)
• Differences between fraud and false pretencesFraud • Deceit can be made in past, present, or future • Actual loss is not required (intent to deprive is sufficient) • Property, money, or service • Broad, all-encompassing offence

....VS....

False Pretence • Deceit can be made in past or present only • Property must be obtained • Value must be capable of being stolen • Narrow offence which is part of fraud
• Sex assaultassault with sexual component… if you can’t prove the sexual part, you can still try for assault (unwanted physical force)
• Infanticide elements:o Committed by a woman
o By willful act or omission
o Causes death of newly born child
o If at time of the act, she is not fully recovered from the effects of giving birth to the child
o And by reason thereof
o Or of the effect of lactation consequent on the birth of the child
o Her mind is then disturbed
• Homicide: • 3 ways of non-culpable: 1. Accident/misadventure, 2. Self-defence, 3. Excusable or justifiable (i.e. war)
• 3 forms of culpable homicide: 1. Murder 2. Manslaughter 3. Infanticide
• Safety of firearms, breaching CC -- UNSAFE STORAGE … look up essential elements; it’s a dual offenceo S. 86(2): Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons
• Regular warrant vs. CDSA warrant487 Warrant
• Must be executed during DAY
• Any person can apply for this
• Can be for anything
• Can search a place, building, or receptacle

....VS....

• Can be executed at any time
• Has to be applied for by a police officer
• Must be for CDSA
• Can search a place

........*Need a 5.2 for both!
• Scenario: confront 3 young people in a bar… o 1st person: gives altered BCDL (DOB changed)  Charge: s. 35 LCLA - minor in a licensed premise   Have they breached the CC in any way? What section?  Yes - s. 368 - Uttering a forged document o 2nd person: got their ID online…  Charge: s. 368 - Uttering a forged document o 3rd person: using their sibling’s ID…  Charge: s. 403 - Identity fraud
• Credit card (s. 321): any card, plate, coupon book or other device issued or otherwise distributed for the purpose of being used • **All illegal things to do with credit card offences in s. 342** • Some things qualify as credit cards that aren’t really credit cards (i.e. COUPON book) … lots of answers -- s. 342!! Stolen, cancelled… etc.
• Someone in possession of a stolen card talk about doctrine of recent possession!
• When you have credit card data s. 342(3)
• A guy is using a wifi signal to do something… can you use somebody else’s wifi? o No. For an illegal purpose? No.  s. 342.1
• Possessing a device to obtain data 342.01(1)
o Knives you can take away: flick knives, butterfly, push button, switch blade, small blades hidden/disguised, hidden in belt buckles, credit card knives, handle is perpendicular to blade
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