Res Judicata

From Criminal Law Notebook

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.


Note up: 12

  1. R v Van Rassel, 1990 CanLII 124 (SCC), [1990] 1 SCR 225, per McLachlin J, 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 (NLSCTD), per Faour J
  3. R v Allison and Dinel, 1983 CanLII 3567 (ON CA), 33 CR (3d) 333, 5 CCC (3d) 30, 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;...


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]


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, per Locke J
    R v Riddle, 1979 CanLII 1601 (SCC)[1980 1 SCR 380], per Dickson J (7:0)
  2. R v Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 SCR 541, per Wilson J (6:1), at para 28
  3. Wigglesworth, ibid., at para 30
    See also:
    Martineau c Ministre du Revenu National, 2004 SCC 81 (CanLII), [2004] 3 SCR 737, per Fish J
    Guindon v R, 2015 SCC 41 (CanLII), [2015] 3 SCR 3, per Rothstein and Cromwell JJ
    Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 (CanLII), [2015] 3 SCR 250, per Karakatsanis J
  4. R v Shubley, 1990 CanLII 149 (SCC), [1990] 1 SCR 3, per McLachlin J
  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), per Rideout J, 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, supra, at para 76
    Samji, supra, at para 17
  12. Wigglesworth, supra, at para 76
    Samji, supra, at paras 18 to 21
  13. Guindon, supra, at para 76
    Samji, supra, 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