How does a detective give careful consideration to

However, there remains a significant amount of subjective interpretation in the code that must be done in the mind of an investigator to effectively use the various stated authorities to enforce the law.

This need to interpret statutory law exists because of case law decisions and the common law precedents that have been established from those case law decisions. Common law is law that is not written down as legislation or a statue and is based on rulings and precedents of past cases to guide judges in making later decisions in similar future cases.

It cannot be found in any statute or body of legislation, but only in past decisions. It is flexible and adapts to changing circumstances. Fulfilling the role of a police investigator requires an understanding of specific statutory authorities, along with the case law and common law definitions for utilizing those authorities.

Statutory authorities provide powers for arrest and use of force, powers for entry to private property, and powers to search for and seize evidence. Case law and common law are procedural in nature. They help define limits within statutory authorities and dictate the way the law is administered by the court.

By extension, case law and rules of evidence define the way police investigations should be conducted, the way suspects should be treated, and the processes for collecting evidence and preserving it for court.

The ability of an investigator to properly interpret and follow these statutory laws, case laws, and rules of evidence, can play a large part in determining if the evidence from an investigation is accepted or rejected by the court. Case law and common law exist because, over the years, the courts have continually found that applying statutory law cannot happen without interpretation and consideration of exceptions.

Critical points of subjective analysis, deciding issues of fairness to the accused, and balancing the need to protect society from criminal conduct have caused the courts to interpret how the law should be applied. These interpretations, when accepted by the judicial system, become precedents and sometimes even doctrines of law.

Many of them directly comment on the matters an investigator should consider when making specific decisions to take action.

With these stated matters of case law in mind, investigators are called upon to subjectively interpret the circumstances, evidence, and information relating to an event, and to determine if the specific facts and circumstances will meet the tests that allow action to be taken. In addition to these case law decisions, common law also provides several doctrines of law that define consistent rulings of the courts when making assessments of the evidence being presented in relation to some specific common issues.

A doctrine is established through repeated application of the same legal precedents, and there is an expectation that the lower courts will respect the application of these legal precedents in stated cases of the higher courts. Knowing these doctrines, and considering how the court might apply them to the evidence being presented, assists investigators on the proper ways to collect evidence that will best inform the court.

Under criminal law, the defence of necessity can be invoked by the defence in cases where the accused seeks to provide a rationale that committing the offence was the unavoidable result of some serious circumstance beyond his or her control.

In considering this defence, the court will apply a very strict standard in order to meet the conditions prescribed in the common law doctrine of necessity Gecker, It is important for an investigator to know the criterion that the court will apply, in-as-much as it will allow the investigator to seek out evidence that either supports or negates the necessity defence.

The leading case in Canada for such a defence is R v Perka where Justice Dickson described the rationale for the defence as a recognition that:. A liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. Three elements are required for a successful defence:.

The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable. At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable. With regard to the second element, if there was a reasonable legal alternative to breaking the law, then there can be no finding of necessity. Regarding the third element requiring proportionality, the harm avoided must be at least comparable to the harm inflicted R v Perka, Clearly, the standard for the defence of necessity sometimes requires the interpretation of complex issues.

This interpretation determines if the circumstances and evidence fall within the ascribed definitions to be considered necessity. This interpretation is the job of the court assessing the evidence to reach their belief beyond a reasonable doubt. If an investigator has discovered sufficient evidence and has reasonable grounds to believe an offence has been committed, there are sufficient grounds to lay the charge.

In serious cases, where harm to persons, or significant property damage has occurred, police investigators do not have the discretion to consider if an accused person should be afforded the defence of necessity due to the complexity of the issues. In lesser cases, for instance where a police officer stops a car for speeding and the driver shows that they are speeding to get a critically injured person to the hospital, a police officer might use discretion and accept the excuse of necessity to forgo the speeding ticket.

Conversely, if an accused person made the decision to cut a lifeline that caused a mountain climber to fall to his death to save himself from being pulled over the edge, that decision of necessity needs to be made by a judge in a court of law. In serious cases, it is important for an investigator to remember that their job does not include making any final interpretation regarding the defence of necessity, even if evidence of necessity may exist.

This would include recognizing and collecting evidence to show:. The doctrine of recent possession refers to the possession of property that has been recently stolen. When considering whether to make the inference of recent possession, the prosecution must consider all the circumstances R v Abernathy , This includes common sense factors, such as the amount of time that passed between possession and the offence R v Gagnon , Factors to consider whether the possession was recent include the nature of the object, the rareness of the object, the readiness with which the object can and is likely to pass to another, and the ease of identification.

To achieve an inference, the Crown must establish that the accused was found in possession of the item and that the item was recently stolen without an explanation R v Gagnon , When the accused is found in recent possession without explanation, the prosecution can draw the inference and make the presumption that the accused had a role in the theft or related offences. The defence can present an argument to counter the presumption by providing evidence of a reasonable explanation R v Graham , Wilful blindness, also called ignorance of the law or contrived ignorance, is something the court will consider when an accused provides a defence claiming that they were not aware of the facts that would make them either criminally or civilly liable for a criminal offence or a civil tort.

In applying the doctrine of wilful blindness, the court will carefully examine the circumstances to determine what the accused should have known or if the accused should have inquired further. The Supreme Court of Canada articulated the thinking behind the assessment of wilful blindness in R v Briscoe:. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea.

The manner in which the court should examine these issues is further expressed in Sansregret v The Queen , [] 1 S. As S opinka J. Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. He would prefer to remain ignorant. For an investigator who anticipates that wilful blindness may become an issue at trial, it is important to recognize the need to gather the additional evidence that might demonstrate the accused knew or should have known the nature of the offence taking place, and deliberately failed to inquire.

For example, for the offence of theft, under the Criminal Code of Canada, the guilty act of theft, and variations of what constitute theft, are described in detail under section Criminal Code, , s 1, 2 of the Criminal Code of Canada:. Theft The definition of the offence of theft provides a broad range of actions that will constitute the guilty act of theft.

It defines items that can be stolen as anything, whether animate or inanimate. It includes conversion of the use of an item as being a theft, and it even defines the time a theft is completed, saying theft occurs when a person merely begins to cause something to be movable. For an investigator to collect evidence to prove the guilty act of theft, these definitions create a range of activities where evidence can be collected to illustrate a theft has occurred; but, just proving one of the actions that define the guilty act of theft occurred is insufficient because theft is one of the criminal offences that requires the act to be intentional.

This is where the concept of m ens rea comes into play. The concept of mens rea seeks to determine if the accused person had the intent to commit the offence. For an investigator, this is an important concept because with this term, there is an added obligation to look for evidence that can assist the court in determining if the accused did in fact have the intent to commit the offence.

In the case of a theft, evidence of intent may be part of the observed actions of the accused, such as where a shoplifter is seen stuffing store merchandise into their pockets and then walking out the nearest exit of the store without paying.

In such a case, it would not be enough for the investigator to show that the accused removed the property from the store. The act of concealing the items in the pockets is critical to demonstrate the intent to commit the offence. It should be noted that intent does not form part of the wording for all offences. There are some offences where intent is not required. There are also more serious strict liability offences, such as criminal negligence causing death or bodily harm, where proof of intent is not required.

In other words, their reckless disregard caused or allowed the harm to occur. Even though intent in not a required element for this kind of charge, careful investigation of the evidence could elevate the offence from criminal negligence causing death or bodily harm to assault or even murder, if evidence of intent can be demonstrated. To demonstrate this point, let us examine a case where three men go hunting together and each is carrying a rifle.

A shot is fired and one of the men is killed. The investigation of this death reveals that the shooter had been drinking heavily and was walking along with his loaded rifle and the safety on the rifle was off. The muzzle of his rifle was pointed in the direction of the victim walking beside him. The shooter confesses that he stepped over a log, tripped, and the gun discharged killing the victim. This evidence of drinking, the safety being off, and pointing a gun at the victim might support a charge for criminal negligence causing death.

Further investigation results in a statement from the third hunter who states that the victim and the shooter were business partners, and they had been arguing all morning over how they should divide the assets of the business they were selling. Hence, Actus Reus and Mens Rea become core concepts of investigative thinking.

As the investigation proceeds, the investigator will undertake an ongoing process of evidence collection, offence recognition, and theory development to determine if an offence occurred, how the offence occurred, and why the offence occurred or is there evidence of intent. These concepts and the thinking to conduct theory development and evidence collection will be discussed in greater detail in the proceeding chapters of this book.

It is the job of the crown prosecutor to present evidence to the court that proves a prima facie case. Prima facie means at first sight and is the minimum amount of evidence required to prove each element of the formal charge against the accused. The elements of the offence include proving the specific acts alleged in the offence, such as assault or robbery; however, the elements of the offence also include other critical facts that a police investigator must consider to collect the correct evidence.

It is the presentation of evidence that, if believed, would establish each of the elements necessary for the prosecution to succeed.

In assessing whether a prima facie case is made, a judge does not decide whether the evidence is likely to be believed; but merely whether, if it were, it would establish the necessary elements for a conviction Legal Information Institute, The information is a document sworn by a police officer alleging that the offence has taken place and accusing a person of that offence.

The standard wording of a criminal information is as follows:. I, Constable name of the informant , do solemnly swear that I have reasonable and probable grounds to believe and do believe that, on or about date of offence , at or near place of offence , in the Province of province name , name of accused , did unlawfully statement of actions of the accused , and did thereby commit the offence of name of the offence contrary to the provision of section number the offence under the criminal code or other statute , sworn before me this date of information swearing.

In the above Information, the elements that need to be proven to establish a prima facie case are:. In court, this information or charge becomes the first document for consideration by the judge.

This information, also known as a criminal charge, is read to the accused on their first appearance in court and after the reading of the charge, the judge will ask the accused person to enter a plea of either guilty or not guilty. If the plea is guilty, the judge will hear circumstances of the offence that will determine the sentence or the penalty for the offence.

If the plea is not guilty, the judge will determine if the offence is one that should be heard by a judge-and-jury or a judge alone; and, if it is one of the serious offences where the option for judge-and-jury is available, the accused will be asked to decide which type trail they would prefer.

Having received a plea of not guilty, the judge will then schedule a trial date. When the trial begins, the prosecutor will present evidence to establish the truth of each element of the information beyond a reasonable doubt.

Because the court system is an adversarial system, the defence lawyer may challenge any piece of the evidence presented with the goal of not allowing the prosecution to prove one or more of the required elements to make out the prime facie case.

The prime facie case is complete when sufficient evidence is presented to prove each element of the charge before the court. If any one element of the information is not proven, the prima facie case is not established beyond a reasonable doubt and the court will make a ruling of not guilty. An appointment as a peace officer and the duties of a police officer in Canada are made under the authority of various provincial police acts and at the federal level under the RCMP Act.

The designation of a peace officer under any one of these acts enables the appointed person to exercise the powers and authorities of a peace officer described in those acts, as well as the powers and authorities to function as a peace officer under the provisions of the Criminal Code of Canada and any other federal and provincial statutes.

In addition to these powers and authorities to act, persons designated as peace officers also have some limited protection from criminal charges and civil liabilities in cases where they unintentionally make an error or cause injury to a person. These protections are not available, or can be withheld, where an officer is found to have acted with criminal intent or is found to have been reckless or criminally negligent in the execution of their duties.

So, police officers are endowed with powers and authorities to act as keepers of the peace. For the police, this responsibility is equated to doing their duty. To fully understand what this entails, one must consider these two most critical questions:.

These questions have a long history of both philosophical and legal arguments, dating all the back to the origins of policing in England Reith, In those early times, the police were predominately considered to be peace-keepers.

Criminal charges were the last resort. This ability of police officers to settle local disputes using their own judgement and discretion became a valued function of policing skills. Careful thought is consideration. Careful consideration of something. Through observation and careful consideration. Nursing consideration is the thought and consideration along with judgment. An example of nursing consideration would be teaching a patient to inject insulin through careful thought and consideration.

Teaching would continue until the nurse is satisfied that the patient is capable of insulin injections on their own. Yes, the noun 'consideration' is an abstract noun as a word for careful thought, often over a period of time; a word for a concept.

A detective is always careful to scrutinize evidence of a case. All award recommendations wil be given to the commanders for careful considertion? Do you mean consideration for contract formation? To have a bargain, you have to be willing to give something up. That's consideration. If the consideration is in the past e. With careful consideration, or deliberation; circumspectly; warily; not hastily or rashly; slowly; as, a purpose deliberately formed.

Decision making. Means - after careful consideration no further contact [ at all] is wanted ever again. I was attacked by my neighbor, she alleged that she was the one attacked.

Tradition is important because it makes careful consideration of your actions and the actions of others less necessary. The act of deliberating, or of weighing and examining the reasons for and against a choice or measure; careful consideration; mature reflection.

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