However, caution must be exercised about any suggestion of an identity between these rules and section 11(h). The principle does not apply to offences involving different victims ( Kienapple, supra Prince, supra).Īt least some common law or statutory rules against double jeopardy also would be enshrined under section 11(h) (see the example briefly indicated in the recent decision of R. The same delict or cause is involved where there is no additional and distinguishing element contained in the offence that goes to guilt ( R. 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.Only issues either necessarily resolved in favour of the accused as part of the acquittal or on which findings were made are estopped ( R. 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.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.
autrefois acquit - A person should not be convicted of an offence for which the person was formerly acquitted.They can be expressed in the form of more specific rules which are applied differently despite their common origin ( R. General principles against double jeopardy have long existed in Canadian common and statutory law. Nova Scotia Pharmaceutical Society, 2 S.C.R. Section 7 of the Charter may also provide some form of protection against double jeopardy ( R. Note that the protection of section 12 extends to “treatment” in addition to punishment ( Rodgers, supra, paragraph 63). 11(h) and (i) also applies when interpreting that term under section 12 ( R. The definition of “punishment” that has been developed in the context of ss. 11 (i) and (h) is desirable as fairness in punishment underlies both provisions” ( R. 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 of the Constitution of the United States of America.Ī similar understanding of the term “punishment” should apply to both paragraphs 11(h) and 11(i): “harmony between s. The following instrument binding on Canada contains a similar provision: article 14(7) of the International Covenant on Civil and Political Rights. 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.Any person charged with an offence has the right:
Section 11(h) – protection against double jeopardyġ1.
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