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Charter - Section 11(h) - Double Jeopardy. R. v. Hodgson
In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal, here considering the history and meaning of the limited Crown appeal under CCC 676(1)(a).
Here, the court points to the role of 'double jeopardy' as a key factor in maintaining this appellate limitation:[29] The most important justification behind the limited nature of the Crown’s right of appeal, however, lies in the principle against double jeopardy. In the United States, it is for this reason that the Supreme Court has concluded that an appeal against an acquittal would violate the Fifth Amendment (see, e.g., McElrath v. Georgia, 601 U.S. 87 (2024), at p. 94). The protection against double jeopardy is also part of the framework that governs the Crown’s ability to obtain a retrial after an acquittal in the United Kingdom (Criminal Justice Act 2003, s. 76(4)(c)).
[30] This rationale is also crucial in Canadian law. Our Court has held that the Crown’s ability to appeal an acquittal does not violate s. 11(h) of the Canadian Charter of Rights and Freedoms (R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at pp. 155-56, per McIntyre J., dissenting, but not on this point). Nevertheless, as Kasirer J.A. noted in LSJPA – 151, the Crown’s [translation] “limited right of appeal seeks to prevent an appeal on the facts to protect acquitted persons from the double jeopardy associated with a new trial” (para. 57 (footnote omitted)). As explained in Cullen, “[a]t the foundation of criminal law lies the cardinal principle that no [individual] shall be placed in jeopardy twice for the same matter . . . . It is the supreme invasion of the rights of an individual to subject [that individual] by the physical power of the community to a test which may mean the loss of [their] liberty or [their] life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy” (p. 668).[3]
[31] Thus, expanding the Crown’s right of appeal beyond its proper scope would have a profound impact on the interests of accused persons, especially due to the considerable anxiety created by the prospect of a new trial after a person has been acquitted (see Budai, at para. 125, quoting R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 890, per McLachlin J., concurring in the result). Allowing the Crown’s restricted right of appeal to expand beyond its scope would undermine the provision’s protection against wrongful convictions and double jeopardy.
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