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 process.
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.
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 questionable.
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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