Res Judicata

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General Principles

See also: Plea of Not Guilty and Other Pleas

The defence of res judicata (when relating to accused will be called "double jeopardy") prevent any convictions being entered for the same factual transactions as a previous conviction.[1]

Res Judiciata is an umbrella term that covers concepts including autrefois acquit, autrefois convict and he rights under s. 11(h) of the Charter.[2]

Res Judicata is "an act which underlies an offence or an act which forms part of a series of connected acts which make up the factual basis of an offence resulting in a conviction cannot be used to constitute the factual basis of a conviction for a conviction for another offence."[3]

The principle was codified under s. 12 of the Code:

Offence punishable under more than one Act
12. Where an act or omission is an offence under more than one Act of Parliament, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.
R.S., c. C-34, s. 11.


CCC

  1. R v Van Rassel, 1990 CanLII 124 (SCC), [1990] 1 SCR 225 at para 15, citing Black's Law Dictinoary, Fifth Ed. ("No man ought to be twice troubled or harassed for one and the same cause")
  2. Van Rassel, ibid. at para 16 ("The double jeopardy concept expressed in the Latin maxim cited is a principle of general application which is expressed in the form of more specific rules, such as the plea of autrefois acquit, issue estoppel and the rule stated in Kienapple.")
    R v Noftall and Noseworthy, 2017 CanLII 21456 (NL SCTD)
  3. R v Allison and Direl (1983) 38 C.R. (3d) 333 per Martin J.

Section 11(h) of the Charter

Section 11(h) of the Charter states that:

Proceedings in criminal and penal matters
11. Any person charged with an offence has the right...

(h) 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;...


CCRF

The rule against double jeopardy means that a person cannot be convicted of a single criminal offence twice.[1]

"Charged with an Offence"
The phrase "charged with an offence" refers only to "criminal or quasi-criminal proceedings and proceedings giving rise to penal consequences".[2] For the right under s.11(h) to apply the court must determine 1) whether the matter is, by its "public nature, intended to promote public order and welfare within a public sphere of activity" and 2) whether the matter involves "the imposition of true penal consequences"[3]

"public nature"
A matter is by "its nature" criminal relates to the proceedings not the act that makes up the offence.[4] A proceeding is of "public nature" where it "promote[s] public order and welfare within a public sphere of activity ".[5]

Section 11(h) will not generally apply to offences that relate to "domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity".[6]

Factors to consider for the proceedings nature include:[7]

  1. the objectives of the relevant statute and specific provisions thereof,
  2. the purpose of the sanction, [8] and
  3. the process leading to the imposition of the sanction

"true penal consequence"
Where the results of the "public nature" test and the "true penal consequences" test conflict, the result of the latter test will usually govern.[9]

Those offences where proceedings could lead to imprisonment, they will usually constitute "true penal consequences".[10]

Factors to consider include:[11]

  1. Magnitude of penalty - if the amount is out of proportion to the amount required to achieve regulatory purposes, then the oversized fine is a strong indication that the sanction constitutes a true penal consequence. For example, if the AMP is significantly less than the maximum criminal penalty, then it is more likely that the consequence is non-penal;
  2. Recipient of any penalty payments - if the recipient of the monetary sanction is not a consolidated revenue fund, then the fine is more likely to be an internal or private matter of discipline;
  3. Applicability of sentencing principles - if the monetary sanction is determined by regulatory considerations and not sentencing principles, the sanction is likely to have a regulatory purpose. It should be noted that an administrative body can impose monetary sanctions for a deterrence effect so long as the penalty does not aim to punish or denounce; and
  4. Stigma of the penalty - if the stigma associated with the regulatory penalty is comparable to that attached to a criminal penalty, then it is more likely that the penalty has a true penal consequence.

The ability of an administrative body to impose large fines will not necessarily violate s. 11(h) so long as the amount is "fully consonant with the maintenance of discipline and order within a limited private sphere of activity".[12] However, where the "purpose" or "effect" is punitive it will be a true penal consequence.[13]

Examples
Major service offences under the RCMP Act are not offences of public nature and are not criminal law.[14]

Prosecutions under the provincial Securities Act and the Criminal Code concurrently has been found to not violate s. 11(h).[15]

  1. comes from latin “nemo debet bis vexaris pro una et eadem causa”
    R v Cullen, 1949 CanLII 7 (SCC), [1949] SCR 658 R v Riddle, 1979 CanLII 1601 (SCC), [1980] 1 SCR 380
  2. R v Wigglesworth [1987] 1987 CanLII 41 (SCC), [1987] 2 SCR 541 at para 28
  3. Wigglesworth at para 30
    See also:
    Martineau c Ministre du Revenu National, 2004 SCC 81 (CanLII)
    Guindon v R, 2015 SCC 41 (CanLII)
    Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 (CanLII)
  4. R v Shubley, 1990 CanLII 149 (SCC), [1990] 1 SCR 3
  5. Wigglesworth, supra at para 23
  6. Wigglesworth, supra at para 32
  7. Martineau, supra at para 24
    R v Samji, 2016 BCPC 145 (CanLII) at para 15
  8. Guindon, supra at para 75 - suggests that purpose of sanction is part of true penal consequence test
  9. Wigglesworth, supra at para 26
  10. Wigglesworth, supra
  11. Guidon at para 76
    Samji at para 17
  12. Wigglesworth at para 76
    Samji at paras 18 to 21
  13. Guindon at para 76
    Samjo at para 19
  14. Wigglesworth, supra at para 36
  15. Samji, supra at para 158 - re imposition of an administrative monetary penalty under the securities act

Autrefois Acquit and Autrefois Covict

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

(a) autrefois acquit;
(b) autrefois convict; and
(c) pardon.

...
Disposal
(3) The pleas of autrefois acquit, autrefois convict and pardon 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) 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), 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).

...
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.


CCC

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

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

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

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

  1. Corp. professionelle des médecins v Thibault, 1988 CanLII 32 (SCC), [1988] 1 SCR 1033, at para 21
  2. Rex v Sweetman, 1939 CanLII 107 (ON CA), [1939] 2 D.L.R. 70, [1939] O.J. No. 455
  3. R v Tyhy, 2008 MBQB 126 (CanLII) -- autrefois acquit accepted
  4. R v Button 2010 NLCA 66 (CanLII)

Kienapple Principle

See also: Kienapple Principle

Issue Estoppel

The Crown may not lead evidence on the basis of "issue estoppel" for any issues that "were decided in the accused's favour, whether the basis of a positive factual finding or a resonable doubt" in a previous trial.[1]

The requirements of issue estoppel are adopted from the civil context with some modification. It requires:[2]

  1. that the same question has been decided;
  2. that the judicial decision which is said to create the estoppel was final;
  3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies; and
  4. that the application of the rule does not contravene "general criminal law principles".

Establishing issue estoppel is difficult in a jury trial as it is not usually easy to identify what issues were decided in the accused's favour at the first trial.[3] The facts inferred by the sentencing judge in a jury trial may be sufficient to establish issue estoppel for future judges.[4]

In a trial on with multiple counts, "Where the judge rejects the evidence lead on one count, it cannot be used to find guilt on another account”.[5]

However, this does not rule out the ability for the Court to take evidence of alcohol consumption as evidenced wars dangerous driving despite an acquittal for impaired driving.[6]

Advancing new arguments or making new claims does not avoid issue estoppel.[7]

Issue estoppel does not apply to voir dire rulings pertaining to the admissibility of evidence in criminal proceedings.[8]

A decision on a conditional sentence is not a "final decision" that engages issue estoppel.[9]

  1. R v Mahalingan, 2008 SCC 63 (CanLII), [2008] 3 SCR 316 at para 22
    Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 S.C.R. 460
  2. Mahalingan, supra
  3. Mahalingan, ibid. at para 54
  4. R v Punko, 2010 BCSC 70 (CanLII) – Crown prevented from relitigating the issue of whether Hells Angels was a criminal organization
  5. R v Settle, 2010 BCCA 426 (CanLII) – context of evidence of alcohol consumption used on impaired driving and dangerous operation
  6. Settle, ibid.
  7. Currie v. Ontario (Attorney General), 2017 ONCA 266 (CanLII), at para 16
  8. R v Duhamel, 1984 CanLII 126 (SCC), [1984] 2 S.C.R. 555 ("There is no doubt in my mind that if there is a bar to an extension of the doctrine of res judicata to rulings on confession voir dires, it does not stem from principle or logic. It is desirable that we avoid relitigation of the issue and, as in this case, the risk of conflicting decisions.")
    R v Price, 2017 BCSC 330 (CanLII) at para 10 to 12
  9. R v Thompson, 2014 ONCA 43 (CanLII)