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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-006-01

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-006-01
Last-Modified: 1997/01/23
Source: Department of Justice Canada

6.2 Possible Implications for Canada

To what extent does double jeopardy protection arise as an
issue in Canadian law in the foregoing context? First,
unlike American states, provinces have no constitutional
authority to legislate on criminal law matters, since the
making of criminal law lies within the exclusive
jurisdiction of the federal government. Therefore, there is
no possibility of a Canadian province legislating a crime
of, say, assault, and the federal government legislating
another crime of, say, violation of one's rights protected
by the Charter, that would give rise to a similar "dual
sovereignty" doctrine regarding criminal offences in
Canadian law.

However, given that criminal law authority lies exclusively
within the jurisdiction of the federal government, double
jeopardy issues may arise in the context of prosecutions of
hate-motivated crime. First, suppose that a crime or crimes
of hate-motivated violence were to be created. If a person
were to be prosecuted for such a crime (e.g., committing an
assault by reason of hatred of a person's actual or
perceived race, colour, religion, ethnic origin, et cetera),
then upon an acquittal or conviction for that crime, a
subsequent prosecution for the basic crime (e.g., assault)
would be barred because the assault would be an included
crime of the hate-motivated crime.

Canada's constitutional guarantees of rights and freedoms,
it should be noted, differ from those of the United States,
in that they are restricted to protect against abusive
government action only. Section 32 of the Charter ensures
that the Charter applies to the Parliament and government of
Canada or to the legislature or government of a province. By
section 24, a person whose rights are denied could apply to
a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the
circumstances. In those proceedings, the court may exclude
evidence if established that its admission would bring the
administration of justice into disrepute.

In a Rodney King situation of police brutality that was
covered up, if the government was prosecuting the accused
who was beaten and the evidence of brutality came out at
trial, the prosecution's case would collapse as being an
abuse of process. But what if there were no prosecution
brought? Government agents have acted brutally. They are
tried on assault charges and aquitted. The victim's
constitutional rights have been infringed. Could the
officers be tried a second time? What if Parliament passed a
law, aimed at peace officers, making it a crime to infringe
a person's constitutional rights?

In light of the American experience, it may be useful,
albeit speculative, to consider what the double jeopardy
consequences would be if a new crime of violating one's
constitutional rights were to be created. In this context,
two issues arise. The first would be, assuming that the
peace officer has been prosecuted previously (e.g., for
assault) and acquitted, whether the officer could be
subsequently prosecuted for the crime of violating a
person's constitutional rights. The constitutional right
being violated in such a case would arguably be that of
section 7 of the Charter, that "[e]veryone has the right to
life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the
principles of fundamental justice."

In this regard, two questions arise. First, could the plea
of _autrefois acquit_ be raised in relation to the later
prosecution for the crime of violating one's constitutional
rights? To succeed on this claim, it appears that the courts
would have to conclude that this is the same or
substantially the same crime as the crime prosecuted
earlier.<190> This seems reasonably certain given that the
violation of the right consists of the assault itself.
Secondly, in the unlikely event that the court concluded the
plea of _autrefois acquit did not apply, would proceeding
with the subsequent prosecution constitute an abuse of
process by unreasonably splitting the case? In R. v.
B.,<191> it was held that splitting a case can become an
abuse of process in certain circumstances: when the second
trial will force the accused to answer for the same
delinquency twice, when the second trial will relitigate
matters already decided on the merits, and when the second
trial is brought because of malice or spite so as to harass
the accused. It is most likely that the second trial would,
in these circumstances, be seen to constitute an abuse of

The second issue is, assuming that the courts held that the
crimes of assault and of violating a person's constitutional
rights were different crimes and the crimes were to be tried
together, whether the rule against multiple convictions
would apply to prevent the accused from being convicted on
both charges. The rule against multiple convictions was
first enunciated by the Supreme Court of Canada in Kienapple
v. The Queen.<192> Subsequent cases have attempted to
clarify the scope of this rule, the most notable being that
of R. v. Prince.<193> In that case, the Supreme Court of
Canada held that the rule against multiple convictions
applies only where there is both a factual and legal nexus
existing between the offences. A legal nexus between the
offences exists if there is no additional and distinguishing
element that goes to guilt contained in the offence for
which a conviction is sought to be precluded by the
Kienapple principle.<194>

In light of these decisions on the rule of multiple
convictions, what would happen if, for example, a criminal
prosecution was brought both for a crime of assault and for
the crime of violating a person's constitutional rights
arising out of the assault? Would convictions on both
charges ensue? The issue would be whether or not the crime
of violating a person's constitutional rights, as was stated
in Prince, had additional and distinguishing elements that
go to guilt. Again, it seems most likely that the rule
against multiple convictions would apply in the
circumstances of the case, because the violation of the
fundamental right to life, liberty, and security of the
person was the assault by the police. In short, the
protections against double jeopardy in Canadian law would
restrict the operation of such a crime.

This leaves the fundamental issue to be addressed: Should a
crime of violation of a person's constitutional rights be
created? The obvious advantage of creating such a crime is
that it would strongly and specifically denounce violations
by government agents of the rights and freedoms guaranteed
by the Charter. In the context of violent police behaviour,
the crime could be used without the necessity of proving
that the peace officer was motivated by hatred of a person's
actual or perceived race, colour, religion, ethnic origin,
et cetera. However, it also has disadvantages. It is not
defined as a hate crime although it could be used in cases
of hate-motivated conduct. If other measures were enacted to
address specifically the issue of hate crimes, would not a
prosecution pursuant to those more specific provisions be
more advantageous? As well, why not just prosecute the
officers for assault? Also, a crime of violating a person's
constitutional rights could be very broad. For example, such
a definition would mean the possibility of a crime arising
where a police officer fails to allow an accused to obtain
the right to counsel. Arguably, the broad scope of such a
crime would run contrary to the fundamental principle of
restraint in the use of the criminal law,<195> unless, of
course it were to be narrowly defined_for example, by
restricting its application to violent police actions that
infringe on a person's rights. Finally, the advantage of
having such a crime in the United States_the ability to
later prosecute an accused after a previous acquittal in
relation to the same conduct under state penal law_does not
apply in Canada. The rules governing protection against
double jeopardy would apply in relation to this crime just
as to all other crimes.

6.3 Summary

This chapter examined the Rodney King beating and the
resulting trials to show that, under American federal law, a
police officer who uses excessive force against a member of
a visible minority may be prosecuted for violation of the
victim's constitutional rights, even though the officer may
have been acquitted of charges in relation to the same
conduct brought pursuant to state penal law. Because of the
doctrine of "dual sovereignty", the protection against
double jeopardy does not apply to bar the subsequent
prosecution under federal law. The advantage of American
federal law, therefore, is to afford to a person whose civil
rights have been violated another forum for a criminal
prosecution where a state prosecution has failed. However,
the criticism made of this approach is that it denies the
accused adequate double jeopardy protection.

The chapter pointed out that this "dual sovereignty"
doctrine would not apply to prevent the application of
double jeopardy protection under Canadian law, in the
hypothetical event that a crime of violating one's
constitutional rights were to be created in Canada. This is
because the creation of criminal law in Canada falls
exclusively within the federal domain. It also pointed out
aspects of protection against  double jeopardy that the
courts would have to consider. These protections against
double jeopardy, such as the special plea of _autrefois
acquit, the rule against unreasonably splitting a case and
the rule against multiple convictions, could well limit the
usefulness of such a crime in a Rodney King scenario. The
chapter concluded by revealing problems in defining such a
crime, that make the utility of creating such a crime

But if the focus for reform is to be on measures directed
specifically at bias-motivated conduct, what direction
should this reform take? The next chapter sets out a series
of options that our criminal law could take in addressing
the issue of hate-motivated violence.

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