Criminal Code of Canada - section 609(2) - Allowance of special plea in part

section 609(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section relates to the retrial of an accused person and defines the circumstances under which they cannot be found guilty of an offense, or must plead guilty or not guilty to a new count.

SECTION WORDING

609(2) The following provisions apply where an issue on a plea of autrefois acquit or autrefois convict is tried: (a) where it appears that the accused might on the former trial have been convicted of an offence of which he may be convicted on the count in issue, the judge shall direct that the accused shall not be found guilty of any offence of which he might have been convicted on the former trial; and (b) where it appears that the accused may be convicted on the count in issue of an offence of which he could not have been convicted on the former trial, the accused shall plead guilty or not guilty with respect to that offence.

EXPLANATION

Section 609(2) of the Criminal Code of Canada deals with the principle of "double jeopardy," which prevents someone from being tried or punished twice for the same offence. Specifically, it applies to situations where a previously acquitted or convicted person is being tried again for the same or similar offence. Subsection (a) of the section directs the judge to prevent an accused from being found guilty of any offence that they could have been convicted of in the previous trial. This means that if the evidence presented in the current trial shows that the accused could have been convicted of a particular offence in the previous trial, the judge must ensure that they are not found guilty of that offence in the current trial. Essentially, this provision prevents double jeopardy and ensures that an accused is not punished twice for the same offence. Subsection (b) deals with situations where the accused is being tried for an offence that they could not have been convicted of in the previous trial. In this case, the accused must enter a plea of guilty or not guilty with respect to the new offence. This provision ensures that the accused is held accountable for any new criminal conduct they may have engaged in, while still respecting the principle of double jeopardy. Overall, Section 609(2) of the Criminal Code of Canada helps to uphold the principle of double jeopardy and ensures that accused persons are not unfairly punished for the same offence.

COMMENTARY

Section 609(2) of the Criminal Code of Canada deals with the legal principle of "double jeopardy", which is a fundamental concept in criminal law. This principle holds that an accused person cannot be tried twice for the same offence, and it is enshrined in section 11(h) of the Canadian Charter of Rights and Freedoms. The provisions of section 609(2) apply when an issue arises on a plea of "autrefois acquit" or "autrefois convict", which means that the accused has already been acquitted or convicted of the same offence in a previous trial. In such cases, the judge must determine whether the accused could have been convicted of the same offence in the previous trial or whether they are facing a different offence in the current trial. If it appears that the accused could have been convicted of the same offence in the previous trial, then the judge must direct that the accused cannot be found guilty of any offence of which they might have been convicted in the previous trial. This means that the prosecution cannot simply try the case again and hope for a different outcome. This provision is important to prevent "double jeopardy" and ensure that the accused is not subject to multiple punishments for the same offence. On the other hand, if it appears that the accused is facing a different offence in the current trial, which they could not have been convicted of in the previous trial, then the accused must plead guilty or not guilty with respect to that offence. This provision ensures that the accused is not unfairly protected by their previous acquittal or conviction in relation to a different offence. Section 609(2) is an essential component of the criminal justice system as it balances the need for justice for victims and society with the rights of the accused to be protected from multiple trials and punishments for the same offence. However, this provision is not absolute, and there are exceptions to the "double jeopardy" principle, such as where new evidence comes to light after the previous trial, or where there was a mistrial due to a fundamental error in the trial process. It is the responsibility of the judge to balance these competing interests and ensure that justice is served in each individual case. In conclusion, section 609(2) of the Criminal Code of Canada plays a crucial role in protecting the rights of the accused while also ensuring that justice is served. This provision is an essential safeguard against "double jeopardy" and ensures that the criminal justice system remains fair and impartial.

STRATEGY

Section 609(2) of the Criminal Code of Canada reflects one of the core principles of criminal law; that an individual cannot be punished twice for the same offence. This principle stems from the basic understanding that no individual should be subjected to double jeopardy, which means being tried twice for the same offence. However, there are certain strategic considerations that need to be kept in mind when dealing with this section of the Criminal Code, particularly when it comes to the possible defences that could be raised, the applicable evidentiary standards, and the available strategies that can be employed. One of the first strategic considerations that need to be factored in when dealing with Section 609(2) of the Criminal Code is the need to identify whether the accused has previously been acquitted or convicted of the same offence. This information is critical in assessing the strength of the defence case, as it helps highlight any potential weaknesses or gaps in the evidence presented. If the accused has previously been acquitted of the offence, then the prosecution will need to produce new or additional evidence to secure a conviction. Conversely, if the accused has previously been convicted of the same offence, then the defence will need to present compelling evidence to rebut the prosecution's case and secure an acquittal. Another important strategic consideration when dealing with this section of the Criminal Code is the evidence that can be admissible in proving whether the accused was previously acquitted or convicted. Under Canadian law, the standard of proof required to establish a prior acquittal or conviction is on a balance of probabilities, which means that the evidence must show that it is more likely than not that the accused was acquitted or convicted of the same offence. This standard of proof is considerably lower than the standard required for criminal convictions, which is beyond a reasonable doubt. As such, it is important to carefully assess the admissibility and weight of the evidence presented, particularly if the prior acquittal or conviction is being contested by the defence. In terms of strategies that can be employed, one possible approach is to argue that the prior acquittal or conviction does not meet the criteria set out in Section 609(2) of the Criminal Code. This argument may be mounted on the basis that the prior offence was not the same, that the same elements were not present in both offences, or that the prior offence was not a criminal offence. Such an argument essentially challenges the applicability of Section 609(2) and may allow for a new trial on the same offence, even if the accused was previously acquitted or convicted. Another strategy is to negotiate a plea bargain with the prosecution. In some cases, the prosecution may be willing to drop the charges or reduce the severity of the offence if the accused agrees to plead guilty to a lesser charge or to accept a reduced sentence. This approach may be especially beneficial in cases where the evidence against the accused is strong, and a conviction is likely. In conclusion, Section 609(2) of the Criminal Code of Canada plays a critical role in ensuring that no individual is punished twice for the same offence. When dealing with this section, it is important to factor in strategic considerations such as the nature of the offence, the admissibility of evidence, and available defences. Employing effective strategies such as challenging the applicability of the section, negotiating a plea bargain, or presenting compelling evidence can significantly impact the outcome of a criminal trial. Overall, dealing with Section 609(2) of the Criminal Code requires a careful analysis of the facts, the law, and the strategic options available to the accused, with the goal of securing the best possible outcome.