Canadian Criminal Procedure and Practice/Pleas

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Plea of Guilty[edit]

Plea of Not Guilty[edit]

Where an accused refuses to make a plea or otherwise does not answer the question of plea, the presumption is that a plea of not guilty will be entered into the record (s. 606(2)).

Special Pleas[edit]

Autrefois Acquit and Autrefois Convict[edit]

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

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


...
607(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).


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.

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.
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.

CCC

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

An accused cannot plead to autrefoit 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] </ref>

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

Res Judicata[edit]

The defence of res judicata prevent any convictions being entered for the same factual transactions as a previous conviction.

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."[1]

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

Double Jeopardy[edit]

Section 11(h) of the Charter states that "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 rule against double jeopardy means that a person cannot be convicted of a single criminal offence twice.[2]

For the right under s.11(h) to apply the court must determine 1) whether the matter is of a "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]

  1. R v. Allison and Direl (1983) 38 C.R. (3d) 333 per Martin J.
  2. comes from latin “nemo debet bis vexaris pro una et eadem causa”
    Cullen 1949 SCR 658 Riddle 1980 1 SCR 380
  3. R v Wigglesworth [1987] _ SCR _

Kienapple principle[edit]

See Also[edit]