Double Jeopardy - Canada

Canada

The Canadian Charter of Rights and Freedoms includes provisions such as section 11(h) prohibiting double jeopardy. However, often, this prohibition applies only after the trial is finally concluded. Canadian law allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new trial is not considered to be double jeopardy because the first trial and its judgment would have been annulled. In rare circumstances, a court of appeal might also substitute a conviction for an acquittal. This is not considered to be double jeopardy, either – in this case, the appeal and subsequent conviction are deemed to be a continuation of the original trial.

For an appeal from an acquittal to be successful, the Supreme Court of Canada requires that the Crown show that an error in law was made during the trial and that the error contributed to the verdict. It has been suggested that this test is unfairly beneficial to the prosecution. For instance, Martin L Friedland, in his book My Life in Crime and Other Academic Adventures, contends that the rule should be changed so that a retrial is granted only when the error is shown to be responsible for the verdict, not just one of many factors.

Notable examples of this are David Ahenakew, who was tried a second time after being acquitted and Guy Paul Morin who was wrongfully convicted in his second trial after the acquittal in his first trial was vacated by the Supreme Court of Canada.