Section 11(h) – protection against double jeopardy
11. Any person charged with an offence has the right:
- 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 following 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 of the Constitution of the United States of America.
A similar understanding of the term “punishment” should apply to both paragraphs 11(h) and 11(i): “harmony between s. 11 (i) and (h) is desirable as fairness in punishment underlies both provisions” (R. v. K.R.J.,  1 S.C.R. 906 at paragraph 39; R. v. Rodgers,  1 S.C.R. 554). The definition of “punishment” that has been developed in the context of ss. 11(h) and (i) also applies when interpreting that term under section 12 (R. v. Boudreault,  3 S.C.R. 599 at paragraph 38). Note that the protection of section 12 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,  2 S.C.R. 255; R. v. Nova Scotia Pharmaceutical Society,  2 S.C.R. 606; R. v. Pan,  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,  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,  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,  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,  2 S.C.R. 480). The principle does not apply to offences involving different victims (Kienapple, supra; Prince, supra).
At 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. v. Barton, 2019 SCC 33 at paras. 47 and 178, discussed infra). However, caution must be exercised about any suggestion of an identity between these rules and section 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 section 11(h), with the Court observing that the application of section 11(h) of the Charter must be determined by considering the wording of this Charter provision. The Supreme Court has indicated, without detailed analysis on this point, that 11(h) protections are “distinct” from the above-noted rules (Canada (Attorney General) v. Whaling,  1 S.C.R. 392 at paragraph 39).
The purpose of section 11(h) is to protect against double jeopardy (Whaling, supra at paragraph 33). Generally, the principle against double jeopardy prevents double punishment for the same acts, as well as 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,  S.C.R. 658 and Rourke v. The Queen,  1 S.C.R. 1021). The Supreme Court, however, has recently clarified that protection against double jeopardy under section 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).
1. Threshold for application of section 11(h)
The protection afforded by section 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 section 11(h), once the right is engaged.
(i) “Charged with an offence”
To engage section 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.
Section 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, impose an additional punishment, or retrospectively increase the severity of the initial punishment. 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,  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,  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).
Section 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 section 11(h) applies after the appellate procedures have been completed (R. v. Morgentaler,  1 S.C.R. 30).
In a criminal prosecution where the accused had already been subject to regulatory proceedings in relation to the same matter, it was found that the substantial monetary penalty imposed in the regulatory proceedings was not a “true penal consequence”, and so the earlier proceedings had not engaged section 11 of the Charter. Therefore, the protection afforded by section 11(h) of the Charter did not apply to preclude the criminal prosecution, because the accused had never before been charged with the offence for the purpose of section 11, let alone “finally found guilty and punished” for it (R. v. Samji, 2017 BCCA 415, leave to appeal refused,  S.C.C.A. No. 27).
An accused who is acquitted by a judgment containing no error is "finally acquitted" within the meaning of section 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). Section 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 (Pan, supra, at paragraphs 113-114 citing R. v. D. (T.C.) (1987), 38 C.C.C. (3d) 434 (Ont. C.A.)).
2. Nature of the protection afforded by section 11(h)
Effectively, section 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 section 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 section 11(h), the subsequent proceeding (“tried…again”) must be a “proceeding that is criminal or quasi-criminal in nature” (Whaling, supra at paragraph 54).
The common law double jeopardy rule preventing the Crown from obtaining an additional trial by advancing a new theory of criminal liability for the first time on appeal is also protected under section 11(h) (Barton, supra, at paras. 47 and 178).
(ii) Being punished again for the same offence
See the Charterpedia entry on section 11(i) for a discussion of the definition of “punishment” that has been developed under that right. As mentioned above, a similar understanding of the term “punishment” should apply to both sections 11(h) and 11(i) (K.R.J., supra at paragraph 39; Boudreault, supra at para. 38; Rodgers, supra).
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 section 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 (Rodgers, supra, at paragraph 63 and generally at paragraphs 56-63; see also the discussion of Whaling, below, on retrospective changes to the conditions of the original sanction).
That said, punishment under section 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 post-conviction 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), and does not have a significant impact on liberty or security of the person (K.R.J., supra at paragraphs 53, 55).
In this regard, the mere fact that consequences imposed for criminal conduct may have a deterrent effect does not make it a punishment for the purpose of section 11(h). Courts have thus far found that a requirement to register as a sex offender does not amount to being punished again under section 11(h), including because it is meant to provide police with an investigative tool rather than achieve sentencing objectives (R. v. Dyck, 2008 ONCA 309; 232 C.C.C. (3d) 450; see similarly under section 11(i) of the Charter, R. v. Cross, 2006 NSCA 30, 205 C.C.C. (3d) 289 leave to appeal refused,  S.C.C.A. No. 161).
There is no doubt that a court may, without violating section 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 section 11(h) (R. v. Angelillo,  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 section 11(h) (R. v. L.W.T.,  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 section 11(h), for the original offence (R. v. Casey (2000), 141 C.C.C. (3d) 506 (Ont. C.A), leave to appeal refused,  S.C.C.A. No. 382).
Provisions in mental health legislation allowing for involuntary admission – in other words, detention in a psychiatric hospital due to a risk to others or to oneself – do not involve the imposition of a “punishment”, for the purpose of section 11(h). Although “[p]rotection of society is recognized as one of the legitimate aims of mental health legislation”, such detention “can hardly be considered punitive or penal in nature” because it pursues dual and integrated purposes of promoting health and public safety (Nelson v. Livermore, 2017 ONCA 712 at paragraphs 127-129).
(iii) Being subject to retrospective changes to the conditions of the original sanction
Being “punished… again” under section 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. Section 11(h) protections also can apply as the result of retrospective changes to existing sanctions. While section 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 section 11(h).
In this regard, section 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. Section 11(h) is clearly violated, for example, by retrospective changes to parole eligibility rules that automatically lengthen an offender’s period of incarceration. Section 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).
The provisions of the Corrections and Conditional Release Act that allow officials to place an inmate in administrative segregation in defined circumstances do not infringe section 11(h). The placement of an inmate in segregation pursuant to these provisions involves “no change to the system of administrative segregation under the Act that results in changes to the length of an inmate's incarceration” and does not retrospectively frustrate the inmate’s reasonable expectation of liberty at the time of sentencing. (Canadian Civil Liberties Association v. Canada, 2019 ONCA 243 at paragraphs 142-143).
3. Relationship of section 11(h) protection with foreign proceedings
Section 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,  1 S.C.R. 500).
Even if section 11(h) could apply to an offence charged in Canada in respect of conduct for which a finding of guilt was made abroad, section 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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