Paragraph 11(h) – protection against double jeopardy

Provision

11. Any person charged with an offence has the right:

  1. if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

Similar provisions

The following international instrument binding on Canada contains a similar provision: article 14(7) of the International Covenant on Civil and Political Rights.

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article 8(4) of the American Convention on Human Rights and the Fifth Amendment to the United States Constitution.

Jurisprudence under paragraph 11(i) may help define the meaning of being “punished” for the purposes of paragraph 11(h) (R. v. Rodgers, [2006] 1 S.C.R. 554). Section 11 protections in respect of punishment must be contrasted, however, with protections under section 12 of the Charter which extends to “treatment” in addition to punishment (Rodgers, supra, paragraph 63).

Section 7 of the Charter may also provide some form of protection against double jeopardy (R. v. Krug, [1985] 2 S.C.R. 255; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Pan, [2001] 2 S.C.R. 344).

General principles against double jeopardy have long existed in Canadian common and statutory law. They can be expressed in the form of more specific rules which are applied differently despite their common origin (R. v. Van Rassel, [1990] 1 S.C.R. 225):

  • autrefois acquit — A person should not be convicted of an offence for which the person was formerly acquitted. As codified at sections 607-609 of the Criminal Code, an accused must prove that the matter is the same, in whole or in part, and that the new charge is the same as at the first trial, or that it is implicitly included in that of the first in law or on account of the evidence presented if it had been legally possible at the time to make the necessary amendments without altering the nature of the offence.
  • issue estoppel — The Crown is precluded from relitigating an issue that has been determined in the accused’s favour in a prior criminal proceeding, whether on the basis of a positive finding or reasonable doubt. Only issues either necessarily resolved in favour of the accused as part of the acquittal or on which findings were made are estopped (R. v. Mahalingan, [2008] 3 S.C.R. 316).
  • the Kienapple principle — Based on the broader principle of res judicata, a conviction cannot be registered on a charge if there has been a conviction on another charge that was based on the same delict or cause (Kienapple v. The Queen, [1975] 1 S.C.R. 729). The same delict or cause is involved where there is no additional and distinguishing element contained in the offence that goes to guilt (R. v. Prince, [1986] 2 S.C.R. 480). The principle does not apply to offences involving different victims (Kienapple, supra; Prince, supra).

Some references appear to suggest that these rules are encompassed by paragraph 11(h) (see, e.g., R. v. Bremner (2007), 219 C.C.C. (3d) 136 (N.S.C.A.) at paragraph 24). However, caution must be exercised about any suggestion of an identity between these rules and paragraph 11(h). The Ontario Court of Appeal has stated, for example, that the rule in Kienapple continues to be subject to the dictates of Parliament, that a law providing for multiple convictions out of the same delict is not per se a violation of the Charter, and that the constitutionality of such a law depends on the specifics of its provisions and their application to particular facts (R. v. R.K. (2005), 198 C.C.C. (3d) 232 (Ont. C.A.) at paragraph 40). In Van Rassel itself the common law and statutory rules against double jeopardy were analyzed distinctly from paragraph 11(h), with the Court observing that the application of paragraph 11(h) of the Charter must be determined by considering the wording of this Charter provision. Recently, the Supreme Court indicated, without detailed analysis on this point, that 11(h) protections are “distinct” from the above-noted rules (Canada (Attorney General) v. Whaling, [2014] 1 S.C.R. 392 at paragraph 39).

Purpose

Generally, the principle against double jeopardy prevents double punishment for the same acts as well as preventing the unwarranted harassment of an accused by multiple prosecutions. The criminal law power involves a supreme invasion of the rights of an individual and there is a basic repugnance against its repeated exercise. The principle is an aspect of the more general principle against abuse of process (Bremner, supra, at paragraphs 23 and 26, citing Cullen v. The King, [1949] S.C.R. 658 and Rourke v. The Queen, [1978] 1 S.C.R. 1021). The Supreme Court, however, has recently clarified that protection against double jeopardy under paragraph 11(h) can apply if a person charged with the offence is “punished…again” for it even in the absence of a duplication in proceedings (Whaling, supra).

Analysis

1. Threshold for application of paragraph 11(h)

The protection afforded by paragraph 11(h) can apply if a person who has been charged with an offence has been (i) finally acquitted of the offence, or (ii) finally found guilty and punished for the offence.

Three aspects of this threshold for application are discussed below. The subsequent section explains the nature of the protection afforded by paragraph 11(h), once the right is engaged.

(i) “Charged with an offence”

To engage paragraph 11(h), a person must at one time have been "charged with an offence" as required by the opening words of section 11. For guidance on this term, please refer to the discussion under the general section 11 heading.

Paragraph 11(h) protection is related not to the moment the offence was committed or the acquittal entered, but to the moment at which an attempt is made to re-try the accused. Therefore, even though the Charter was not in effect at the time the proceedings began, it applies at the time the court has to decide whether it should order the holding of a trial which will infringe Charter rights (Corp. professionnelle des médecins v. Thibault, [1988] 1 S.C.R. 1033).

(ii) Two offences the same

The two offences with which the accused is charged or punished must be the same. They must contain the same elements and constitute one and the same offence arising out of the same set of circumstances (R. v. Wigglesworth, [1987] 2 S.C.R. 541; Van Rassel, supra). Analogous offences can be different for the purpose of 11(h) if they are based on duties of a different nature, such as duties owed as a member of the public vs. duties owed as a member of the RCMP (Wigglesworth, supra) or duties owed to the Canadian public vs. duties owed as a member of the American public (Van Rassel, supra).

Paragraph 11(h) applies only to proceedings and not to legal enactments, and therefore does not prevent Parliament from creating offences that may overlap (Nova Scotia Pharmaceutical Society, supra).

(iii) Finally acquitted or finally found guilty and punished

"If finally acquitted" and "if finally found guilty and punished" mean that paragraph 11(h) applies after the appellate procedures have been completed (R. v. Morgentaler, [1988] 1 S.C.R. 30).

An accused who is acquitted by a judgment containing no error is "finally acquitted" within the meaning of paragraph 11(h). The fact that a proceeding is called an "appeal" is not sufficient to make it a true appeal. An appeal by trial de novo is actually a new trial disguised as an appeal (Thibault, supra). Paragraph 11(h) protections arise only if a verdict has been rendered. However, broader protections against double jeopardy might arise under section 7 even if there has been no verdict. For example, if a judge were to declare a mistrial in order to give the prosecution time to strengthen its case against the accused or if the Crown were to enter a stay in order to preclude the jury from acquitting the accused, then section 7 protections against double jeopardy might arise even in the absence of a verdict having being rendered (R. v. D. (T.C.) (1987), 38 C.C.C. (3d) 434 (Ont. C.A.); Pan, supra, at paragraphs 113-114).

2. Nature of the protection afforded by paragraph 11(h)

Effectively, paragraph 11(h) can be understood as providing protection against (i) being tried again for the same offence; (ii) being sanctioned again for the same offence, further to the principles and purposes of sentencing; and, (iii) being subject to retrospective changes to the conditions of the original sanction for an offence that have the effect of adding to the punishment received (Whaling, supra, at paragraph 54).

(i) Being tried again for the same offence

This aspect of paragraph 11(h) “is directed at preventing the State from making repeated attempts to convict an individual” (Shubley, supra at 15). In other words, it precludes both (a) trying a person again for an offence that he or she has already been acquitted of, and (b) trying a person again for an offence that he or she has already been found guilty and punished for (Whaling, supra at paragraphs 54, 56).

To be precluded by this aspect of paragraph 11(h), the subsequent proceeding (“tried…again”) must be a “proceeding that is criminal or quasi-criminal in nature” (Whaling, supra at paragraph 54).

(ii) Being punished again for the same offence

In the absence of being charged with an offence, engagement of section 11 rights is dependent on a person being subject to a “true penal consequence”, such as imprisonment or a fine of a sufficient magnitude (Wigglesworth, supra; see also the discussion under the general section 11 heading). However, the concept of “true penal consequence” does not limit the ambit of punishment under paragraph 11(h) where a person has been directly charged with an offence. Thus, in the circumstances of actual offence charges, being “punished…again” can extend beyond imprisonment and large fines, and would apply even, for example, to a small fine. In general, the concept of punishment under paragraph 11(h) includes any consequence of a criminal offence that “forms part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing” (Rodgers, supra, at paragraph 63 and see generally at paragraphs 56-63; see also, however, the discussion of Whaling, below, on retrospective changes to the conditions of the original sanction.

Punishment under paragraph 11(h) does not extend to every potential consequence of being convicted of a criminal offence. It does not extend, for example, to an order for DNA sampling, which is “no more part of the arsenal of sanctions to which an accused may be liable in respect of a particular offence than the taking of a photograph or fingerprints” (Rodgers, supra, paragraph 65). In this regard, the fact that consequences imposed for criminal conduct may have a deterrent effect does not make it a punishment for the purpose of paragraph 11(h). Courts have thus far found that a requirement to register as a sex offender does not amount to being punished again under paragraph 11(h) as it is not punitive in nature, but rather is a protective measure designed to safeguard the public and to provide police with an investigative tool (R. v. Dyck, 2008 ONCA 309; 232 C.C.C. (3d) 450; see similarly under paragraph 11(i) of the Charter, R. v. Cross, 2006 NSCA 30, 205 C.C.C. (3d) 289 leave to appeal refused, [2006] S.C.C.A. No. 161 (QL)).

There is no doubt that a court may, without violating paragraph 11(h), take prior convictions into account when determining the appropriate sentence. However, the fundamental principle of proportionality requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender; a prior conviction cannot, therefore, justify a disproportionate sentence. This principle assures repeat offenders the right not to be "punished ... again", as guaranteed in paragraph 11(h) (R. v. Angelillo, [2006] 2 S.C.R. 728 at paragraph 24).

Similarly, facts underlying one offence can be considered as an aggravating factor in sentencing for another separate offence, albeit an offence arising from the same incident, without engaging paragraph 11(h) (R. v. L.W.T., [2008] S.J. No. 75 (Sask. C.A.)(QL)).

Measures imposed by a court in response to a breach of a conditional sentencing order do not lengthen the existing sentence, nor do they impose a different sentence; in neither their purpose nor their effect are they double punishment, contrary to paragraph 11(h), for the original offence (R. v. Casey (2000), 141 C.C.C. (3d) 506 (Ont. C.A), leave to appeal to SCC refused, [2000] S.C.C.A. No. 382).

(iii) Being subject to retrospective changes to the conditions of the original sanction

Being “punished… again” under paragraph 11(h) is not limited to the concept, discussed in Rodgers, supra, of an additional sanction imposed in furtherance of the purposes and principles of sentencing. Paragraph 11(h) protections also can apply as the result of retrospective changes to existing sanctions. While paragraph 11(h) is not expressly concerned with the temporal application of the law, post-sentencing modifications of original sanctions may have the effect of increasing offenders’ punishment, thereby engaging paragraph 11(h). In this regard, paragraph 11(h) can protect against changes in parole eligibility under the Corrections and Conditional Release Act that are imposed on offenders already serving sentences. The dominant consideration will be whether the change frustrates “a settled expectation of liberty” on the part of the offender. Paragraph 11(h) is clearly violated, for example, by retrospective changes to parole eligibility rules that automatically lengthen an offender’s period of incarceration. Paragraph 11(h) is less likely to be violated, however, if retrospective parole eligibility changes are not automatically applicable, but allow for an individualized assessment focused on the offender’s circumstances, with procedural rights in the parole process being guaranteed (Whaling, supra).

Lower courts have not been persuaded that changes to the judicial screening test for the Criminal Code ‘faint hope’ provisions (allowing early parole eligibility for persons convicted of murder) interfere with a settled expectation of liberty. These amendments have been characterize as procedural in nature (R. v. Rowe, 2015 ONSC 2576; R. v. Dell, 2015 ONSC 1570; R. v. Jenkins, 2014 ONSC 3223).

3. Relationship of paragraph 11(h) protection with foreign proceedings

Paragraph 11(h) does not apply to an extradition hearing since it was not intended to be given extraterritorial application so as to govern criminal processes in another country. An extradition hearing does not involve charges or a trial by the governments referred to in section 32 of the Charter (R. v. Schmidt, [1987] 1 S.C.R. 500).

Even if paragraph 11(h) could apply to an offence charged in Canada in respect of conduct for which a finding of guilt was made abroad, paragraph 11(h) will not necessarily apply if the offences are based on duties of a different nature, such as duties owed to the Canadian public vs. duties owed within the foreign jurisdiction (Van Rassel, supra).

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