Autrefois Acquit and Autrefois Convict

From Criminal Law Notebook
Jump to navigation Jump to search

General Principles

See also: Res Judicata and Issue Estoppel
Special Pleas

607 (1) An accused may plead the special pleas of

(a) autrefois acquit;
(b) autrefois convict;
(c) pardon; and
(d) an expungement order under the Expungement of Historically Unjust Convictions Act.

...

Disposal

(3) The pleas of autrefois acquit, autrefois convict, pardon and an expungement order under the Expungement of Historically Unjust Convictions Act shall be disposed of by the judge without a jury before the accused is called on to plead further.

Pleading over

(4) When the pleas referred to in subsection (3) [special pleas taken without jury] are disposed of against the accused, he may plead guilty or not guilty.

Statement sufficient

(5) Where an accused pleads autrefois acquit or autrefois convict, it is sufficient if he

(a) states that he has been lawfully acquitted, convicted or discharged under subsection 730(1) [order of discharge], as the case may be, of the offence charged in the count to which the plea relates; and
(b) indicates the time and place of the acquittal, conviction or discharge under subsection 730(1) [order of discharge].

...
R.S., 1985, c. C-46, s. 607; R.S., 1985, c. 27 (1st Supp.), s. 126, c. 30 (3rd Supp.), s. 2, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 2000, c. 24, s. 45; 2013, c. 13, s. 9; 2018, c. 11, s. 29.
[annotation(s) added]

CCC


Note up: 607(1), (2), (3), (4), and (5)

Evidence of identity of charges

608 Where an issue on a plea of autrefois acquit or autrefois convict is tried, the evidence and adjudication and the notes of the judge and official stenographer on the former trial and the record transmitted to the court pursuant to section 551 on the charge that is pending before that court are admissible in evidence to prove or to disprove the identity of the charges.
R.S., c. C-34, s. 536.

CCC


Note up: 608

What determines identity

609(1) Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears

(a) that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and
(b) that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted of all the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded,

the judge shall give judgment discharging the accused in respect of that count.

Allowance of special plea in part

(2) The following provisions apply where an issue on a plea of autrefois acquit or autrefois convict is tried:

(a) where it appears that the accused might on the former trial have been convicted of an offence of which he may be convicted on the count in issue, the judge shall direct that the accused shall not be found guilty of any offence of which he might have been convicted on the former trial; and
(b) where it appears that the accused may be convicted on the count in issue of an offence of which he could not have been convicted on the former trial, the accused shall plead guilty or not guilty with respect to that offence.


R.S., c. C-34, s. 537.

CCC


Note up: 609(1) and (2)

Circumstances of aggravation

610(1) Where an indictment charges substantially the same offence as that charged in an indictment on which an accused was previously convicted or acquitted, but adds a statement of intention or circumstances of aggravation tending, if proved, to increase the punishment, the previous conviction or acquittal bars the subsequent indictment.
...
R.S., 1985, c. C-46, s. 607; R.S., 1985, c. 27 (1st Supp.), s. 126, c. 30 (3rd Supp.), s. 2, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 2000, c. 24, s. 45.

CCC


Note up: 607(1)

An accused is not acquitted until all available appeals have been exhausted.[1]

An accused cannot plead to autrefois acquit where the victim in the first trial is different from the victim in the second trial.[2]

Where the facts and offence are substantially the same, the accused can rely on autrefois acquit or autrefois convict.[3]

Where the crown abandons a prosecution after an adverse evidentiary decision, the defence cannot plead autrefois acquit at a later new trial on the same offence.[4]

Evidence
Evidence of identity of charges

608 Where an issue on a plea of autrefois acquit or autrefois convict is tried, the evidence and adjudication and the notes of the judge and official stenographer on the former trial and the record transmitted to the court pursuant to section 551 on the charge that is pending before that court are admissible in evidence to prove or to disprove the identity of the charges.
R.S., c. C-34, s. 536.

CCC


Note up: 608

  1. Corp. professionelle des médecins v Thibault, 1988 CanLII 32 (SCC), [1988] 1 SCR 1033, per Lamer J, at para 21
  2. Rex v Sweetman, 1939 CanLII 107 (ON CA), [1939] 2 DLR 70, [1939] OJ No 455, per curiam
  3. R v Tyhy, 2008 MBQB 126 (CanLII), per Sinclair J -- autrefois acquit accepted
  4. R v Button, 2010 NLCA 66 (CanLII), per Barry JA (3:0)