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Criminal - 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. . R. v. Francis
In R. v. Francis (Ont CA, 2023) the Court of Appeal considered the 'other offences' provisions of CCC 725 (which are designed to prevent double jeopardy), here in the context of dangerous offender application:[26] In addition, the appellant maintains that it was improper to use some of the facts from the Superior Court trial in the dangerous offender proceeding because, for all intents and purposes, doing so amounted to double punishment. The double punishment is said to arise because the appellant was sentenced to three years for his conviction in the Superior Court, but then he was also sentenced based upon some of the information underlying the Superior Court trial in the Ontario Court of Justice. He says that this breached s. 725 of the Criminal Code. He contends that, had he known this was going to take place, he would have never pled guilty in the Ontario Court of Justice. Instead, he would have simply waived his preliminary inquiry and had everything dealt with together in the Superior Court.
....
(4) The appellant’s s. 725 argument fails
[53] The appellant also argued in oral submissions that it was improper to use evidence from the Superior Court trial in the dangerous offender proceeding because it amounted to double punishment. He maintains that he was sentenced to three years for his conviction for attempting to possess a firearm in the Superior Court, where the aggravating factors to that crime were informed by the facts supporting the crimes to which he pled guilty in the Ontario Court of Justice. He maintains that these facts could not be used in determining whether he is a dangerous offender because s. 725 of the Code prohibits this from occurring.
[54] Section 725(1)(c) of the Code allows sentencing judges to consider “any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.” Section 725(2) then directs that where these facts are considered in sentencing for one offence, “no further proceedings” can be taken with respect to any offence disclosed by those facts.
[55] I reject the appellant’s argument on this point. A dangerous offender hearing is not a “further proceeding” for the purpose of s. 725(2). The interpretation suggested by the appellant is at odds with the entire statutory scheme for determining if a person is a dangerous offender. This scheme is predicated upon not only the accused’s recent offending history, but also his past offending history, all of which is entirely relevant to the application. By way of only one example, consider the statutory requirement pursuant to s. 753(1)(a)(i) for determining if an accused is a dangerous offender based upon, among other things, a “pattern of repetitive behaviour”. This repetitive behaviour is often drawn from not only prior convictions, but also the factual circumstances surrounding those convictions.
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