 |
| Patrick Ducharme |
Section 607 of the Code provides for the following special pleas:
(a) autrefois acquit;
(b) autrefois convict; and
(c) pardon.
Autrefois Acquit is a plea made by the accused that he has formally been tried and acquitted of the same charge that he is presently facing. An acquittal on the same charge amounts to a bar to further proceedings. The plea is based on the concept that no person should be subjected to defending himself on the same offence more than once, thereby causing him to be in jeopardy of conviction again when he has been previously acquitted.
It also embraces the idea that once tried and acquitted the matter should, for all time, be at an end. It ensures finality of decision-making. Even an incorrect decision in law, if not appealed, may serve as the basis for this plea. For example, in R. v. Petersen1 the Supreme Court of Canada decided unanimously that a trial Judge deciding a summary conviction charge did not have a legitimate legal basis for dismissing the charge. It was demonstrated that several previous adjournments of the case exceeded eight days in contravention of the section of the Code in place at that time, but the accused had consented to each adjournment.
Consequently, the trial Judge, in deciding he lacked jurisdiction to continue, committed an error in law. The Supreme Court, however, concluded that as long as that disposition stood unchallenged on appeal it was a bar to subsequent proceedings. Even the prosecution proceeding by way of indictment on the re-laid charge could not cure the unchallenged disposition. Despite the earlier error in law the acquittal of the accused stood unchallenged and the court accepted the plea of autrefois acquit on the trial of the new charge.
Similarly, in R. v. Moore2 an error in law by the trial Judge quashing charges thought to be defective, although curable by amendment under section 601 of the Code, was still found by the Supreme Court of Canada to give rise to a valid plea of autrefois acquit because the trial Judge’s decision was not appealed.
Autrefois Acquit is not available when a charge is quashed prior to plea for failure to comply with the statutory requirements of subsection 581(3).3 The plea is also not available if the proceedings are stayed by the prosecution prior to the completion of the first trial of the accused.4 Nor is the plea available when the earlier charge or charges are withdrawn.
Autrefois convict is a plea by an accused that he has formally been tried and convicted of the same offence and ought not to be tried or placed at risk of penalty again. The plea embraces the idea that no person should be punished twice for the same crime. Just like plea of autrefois acquit the successful applicant must set out the former record demonstrating that the court has dealt with the identical offence on a previous occasion and the accused was both convicted and sentenced for that offence.
The plea of “pardon” in section 607 refers to a pardon granted by the Governor in Council pursuant to section 748 of the Criminal Code. The section provides as follows:
748(1) Her Majesty may extend the royal mercy to a person who is sentenced to imprisonment under the authority of an Act of Parliament, even if the person is imprisoned for failure to pay money to another person.
Free or conditional pardon –
748(2) The Governor in Council may grant a free pardon or a conditional pardon to any person who has been convicted of an offence.
748(3) Where the Governor in Council grants a free pardon to a person, that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted.
Punishment for subsequent offence not affected –
748(4) No free pardon or conditional pardon prevents or mitigates the punishment to which the person might otherwise be lawfully sentenced on a subsequent conviction for an offence other than that for which the pardon was granted.
These pardons historically are rarely granted. As can be seen from the wording of section 748, however, if granted, they operate as an absolute bar to a further proceeding in relation to the same offence.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel