Thursday, November 11, 2010

Autrefois acquit

R. v. Button, 2010 NLCA 66 stands for the proposition that the special plea of autrefois acquit does not apply where there has been an acquittal at trial followed by a Crown appeal where a new trial is ordered. Some common law jurisdictions provide that where there is a jury acquittal there can be no further retrial – but that is not the law of Canada.

The Court held:

[11] Autrefois acquit is one of the special pleas preserved by Section 607(5) of the Criminal Code, which states:

Where an accused pleads autrefois acquit or autrefois convict, it is sufficient if he

(a) states that he has been lawfully acquitted, convicted or discharged under subsection 730(1), as the case may be, of the offence charged in the count to which the plea relates; and

(b) indicates the time and place of the acquittal, conviction or discharge under subsection 730(1).

[12] The concept has also been enshrined in the Charter, at s. 11(h):

Any person charged with an offence has the right

. . .

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

[13] An accused is not finally acquitted until all the appeals provided for by law have been exhausted: Corp. professionelle des m├ędecins v. Thibault, 1988 CanLII 32 (S.C.C.), [1988] 1 S.C.R. 1033, at 1044.