R. v. Van Rassel, [1990] 1 SCR 225

R. v. Van Rassel, [1990] 1 S.C.R. 225

 

Michael Adrian Van Rassel                                                                                            Appellant

 

v.

 

Her Majesty The Queen           Respondent

 

indexed as:  r. v. van rassel

 

File No.:  20719.

 

1989:  November 1; 1990:  February 15.

 

Present:  Lamer, La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

 

on appeal from the court of appeal for quebec

 

    Criminal law -- Autrefois acquit -- Issue estoppel -- Kienapple principle -- Accused charged in Canada of breach of trust after being acquitted in the U.S. of three charges based on the same facts and circumstances  -- Application of the principles of double jeopardy -- Criminal Code, R.S.C. 1970, c. C-34, ss. 111, 534, 535, 537.

 

    Constitutional law -- Charter of Rights  -- Double jeopardy  --  Accused charged in Canada of breach of trust after being acquitted in the U.S. of three charges based on the same facts and circumstances -- Whether accused can benefit from the protection of s. 11(h)  of the Canadian Charter of Rights and Freedoms ?

 

    The appellant, an R.C.M.P. officer and a member of an international drug enforcement team, was arrested in Florida and charged in the U.S. with soliciting and accepting bribes in exchange for information given to him by the American authorities.  The appellant was acquitted at trial.  He was subsequently charged in Canada with breach of trust under s. 111  of the Criminal Code .  The trial judge held that the appellant had already been acquitted of the same offences in the U.S. and ordered a stay of proceedings.  The Court of Appeal allowed the Crown's appeal, rejected the plea of autrefois acquit and ordered that the trial proceed.

 

    Held:  The appeal should be dismissed.

 

    The double jeopardy concept is a principle of general application which is expressed in the form of more specific rules, such as the plea of autrefois acquit, issue estoppel and the Kienapple principle.  Despite their common origin, these principles differ in the way they are applied.  The application of s. 11( h )  of the Canadian Charter of Rights and Freedoms  must be determined by considering the wording of this provision.  The Court of Appeal thus erred in considering only the defence of autrefois acquit without dealing with the other defences raised by the appellant.

 

    The defences put forward by the appellant are rejected.  To make out the defence of autrefois acquit, an accused must show that the two charges laid against him are the same.  In particular, he must prove that the following two conditions have been met:  (1) the matter is the same, in whole or in part; and (2) the new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible at that time to make the necessary amendments.  In the present case, the appellant could not have been convicted on the American charges of the offences with which he is charged in Canada even if the necessary amendments (not altering the nature of the offence) had been made.  The Canadian charges deal with Canadian events, require no proof of payment in exchange for information or illegal influence and are based on a breach of trust by a Canadian official in relation to the people of Canada.  They are thus clearly different from the American charges.

 

    The Kienapple principle does not apply to offences involving different victims.  Since in the present case the appellant had a general duty of loyalty to the Canadian people and a temporary duty of loyalty to the United States, the Kienapple principle is not applicable.

 

    A court should not rule on an issue that has already been decided by another court.  Issue estoppel, however, applies only in circumstances where it is clear from the facts that the question has already been decided.  In the present case, in view of the differences between the American and the Canadian charges, there is nothing to indicate that the American jury found in the appellant's favour on the particular issues raised in the Canadian charges.

 

    Finally, s. 11( h )  of the Charter  applies only in circumstances where the two offences with which an accused is charged are the same.  In the present case the American and Canadian offences are different because they are based on duties of a different nature.  Even though the American and Canadian offences are purely criminal in nature, the alleged conduct of the appellant has a double aspect:  wrongdoing as a Canadian official with a special duty to the Canadian public under s. 111 of the Code and wrongdoing as an American official or member of the American public temporarily subject to American law.  Since the offences relate to different duties, the appellant must account for his conduct to the Canadian public as well as to the American public.

 

Cases Cited

 

    Applied:  R. v. Prince, [1986] 2 S.C.R. 480; R. v. Wigglesworth, [1987] 2 S.C.R. 541; referred to:  Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Thomas, [1985] Q.B. 604; R. v. Stratton (1978), 3 C.R. (3d) 289; Libman v. The Queen, [1985] 2 S.C.R. 178; Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959); R. v. Aughet (1918), 118 L.T. 658; Gushue v. The Queen, [1980] 1 S.C.R. 798; Wright v. The Queen, [1963] S.C.R. 539; Connelly v. Director of Public Prosecutions, [1964] A.C. 1254.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , s. 11 ( h ) .

 

Criminal Code, R.S.C. 1970, c. C-34, ss. 111, 534(1) [rep. & sub. 1974-75-76, c. 105, s. 7], 535(1), (5) [rep. & sub. 1985, c. 19, s. 126], 537(1).

 

18 U.S.C. {SS} 201(c), 641.

 

Authors Cited

 

Halsbury's Laws of England, vol. 2, 4th ed. London:  Butterworths, 1976.

 

    APPEAL from a judgment of the Quebec Court of Appeal, [1988] R.J.Q. 112, 11 Q.A.C. 151, allowing the Crown's appeal from a judgment of the Superior Court[1] ordering a stay of proceedings on the four charges laid against the accused.  Appeal dismissed.

 

    Lawrence Corriveau, Q.C., for the appellant.

 

    Daniel Brunet, for the respondent.

 

//McLachlin J.//

 

    English version of the judgment of the Court delivered by

 

    McLachlin J. -- The point at issue in this case is as follows:  can a person, specifically an R.C.M.P. officer, be prosecuted for offences under the Criminal Code, R.S.C. 1970, c. C‑34, after being acquitted in the United States of three charges based on the same facts and circumstances as those submitted to the Canadian court?

 

    The facts may be summarized as follows:  officer Van Rassel worked for the R.C.M.P. in Roberval.  The latter was conducting an investigation in Montréal together with the United States Department of Justice, Drug Enforcement Administration, in the Southern District of Florida.  In his official capacity as a member of the international team, Van Rassel received official reports from the United States Drug Enforcement Administration.  The reports implicated Mr. Réal Gaudreau, a former resident of the Lac St‑Jean area living in Hollywood, Florida at the time.  Van Rassel applied for and obtained vacation leave and went to Florida.  It was alleged that Van Rassel met with Gaudreau and disclosed to him confidential information contained in some of the reports in question.

 

    The American authorities filed a complaint against Van Rassel.  The charges mentioned that Van Rassel had solicited and accepted bribes in exchange for information given to him by the American authorities, thereby contravening 18 U.S.C. {SS} 201(c).  Van Rassel was acquitted after a jury trial.

 

    The U.S. charges read as follows:

 

    The Grand Jury charges that:

 

    1.  At all times relevant to this Indictment, defendant MICHAEL ADRIAN VAN RASSEL was a constable in the Royal Canadian Mounted Police in Roberval, Quebec, Canada.

 

    2.  At all times relevant to this Indictment, the Royal Canadian Mounted Police were assisting the United States Department of Justice, Drug Enforcement Administration, in an investigation being conducted in the Southern District of Florida by following investigative leads in Canada.

 

    3.  At all times relevant to this Indictment, defendant MICHAEL ADRIAN VAN RASSEL received confidential Drug Enforcement Administration investigative reports in Roberval, Canada in his official capacity in connection with said investigation.

 

    1.  On or about May 1, 1985, at Dade County, in the Southern District of Florida, and elsewhere, the defendant, MICHAEL ADRIAN VAN RASSEL, knowingly and willfully did travel in interstate and foreign commerce, from Montréal, Canada, to Miami, Florida with intent to promote and carry on and facilitate the promotion and carrying on of an unlawful activity, that is, the solicitation and acceptance of a bribe, in violation of Title 18, United States Code, Section 201(c), and thereafter performed and attempted to perform acts to promote and carry on and facilitate the promotion and carrying on of said unlawful activity, by seeking and obtaining payment for the unauthorized disclosure of confidential investigative information of the United States Department of Justice, Drug Enforcement Administration; in violation of Title 18, United States Code, Section 1952(a)(3).

 

    2.  On or about May 5, 1985, at Dade County, in the Southern District of Florida, the defendant, MICHAEL ADRIAN VAN RASSEL, knowingly, willfully and without authority did convey a record and thing of value of the United States, which value exceeded $100, that is, confidential law enforcement information in an investigative report of the United States Department of Justice, Drug Enforcement Administration; in violation of Title 18, United States Code, Section 641.

 

    3.  Between on or about May 3, 1985 and on or about May 9, 1985, at Dade County in the Southern District of Florida, the defendant, MICHAEL ADRIAN VAN RASSEL, being a public official, acting for and on behalf of the . . . Drug Enforcement Administration, in an official function, that is, as a constable in the Royal Canadian Mounted Police assisting the Drug Enforcement Administration in an investigation being conducted under and by the authority of the Drug Enforcement Administration knowingly, willfully and corruptly, directly and indirectly, did ask, demand, exact, solicit, seek, accept, receive and agree to receive a thing of value, that is, money, for himself, in return for being influenced in the performance of official acts and being induced to do acts in violation of his official duty, in that the defendant, MICHAEL ADRIAN VAN RASSEL, accepted a $2,000 cash payment and did agree to receive an additional $20,000 cash payment for the unauthorized disclosure of confidential investigative reports and information of the United States Department of Justice, Drug Enforcement Administration; in violation of Title 18, United States Code, Section 201(c).  [Emphasis added.]

 

    Van Rassel was subsequently charged in Canada with breach of trust. The charges read as follows:

 

[TRANSLATION]

 

1.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22, 1985 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit:  by unlawfully converting to his personal use confidential information contained in two reports and a telex from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO with the intent to derive a profit therefrom, thereby committing an indictable offence under section 111  of the Criminal Code .

 

2.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22, 1985 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit:  by unlawfully converting to his personal use copies, photocopies or reproductions of two reports and a telex containing confidential information from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO with the intent to derive a profit therefrom, thereby committing an indictable offence under section 111  of the Criminal Code .

 

3.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit:  by unlawfully converting to his personal use confidential information contained in two reports and a telex from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO, thereby committing an indictable offence under section 111  of the Criminal Code .

 

4.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22, 1985 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit:  by unlawfully converting to his personal use copies, photocopies or reproductions of two reports and a telex containing confidential information from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO, thereby committing an indictable offence under section 111  of the Criminal Code .  [Emphasis added.]

 

    The trial judge accepted the accused's arguments that he could not be prosecuted in Canada because he had already been acquitted in the U.S. of the same offences.  The judge accordingly ordered a stay of proceedings on the Canadian charges.  The trial judge relied on the rules and principles of the plea of autrefois acquit, res judicata, the rule in Kienapple v. The Queen, [1975] 1 S.C.R. 729, the maxim nemo debet bis vexari pro una et eadem causa and s. 11( h )  of the Canadian Charter of Rights and Freedoms .

 

    The Quebec Court of Appeal unanimously allowed the Crown's appeal, rejecting the plea of autrefois acquit, but it did not rule on the other principles argued by the accused: [l988] R.J.Q 112, 11 Q.A.C. 151.  In the Court of Appeal's view, the Canadian charges differed from the U.S. charges, especially in that the Canadian charges were based on a breach of trust toward Canada:  hence the appeal to the Supreme Court of Canada.

 

    The accused argued that the Court of Appeal erred in considering only the question of autrefois acquit and in holding that the American and Canadian charges were different in composition.

 

Points in Issue

 

1.Do the principles relating to the concept of double jeopardy apply between two nations?

 

2.If the answer to the first question is yes, does applying the principles of double jeopardy lead to the conclusion that the trial judge was right in ordering a stay of proceedings against the accused?

 

Discussion

 

1.Do the Principles Relating to the Concept of Double Jeopardy Apply Between Two Nations?

 

    The common law authorities have accepted the proposition that the concept of double jeopardy may apply between two nations:  Halsbury's Laws of England (4th ed. 1976), vol. 2, para. 88; R. v. Thomas, [1985] Q.B. 604 (C.A.)  In this regard, Martin J.A. of the Ontario Court of Appeal wrote in R. v. Stratton (1978), 3 C.R. (3d) 289, at p. 298 (obiter), that the plea of autrefois acquit applies to foreign convictions.  In his view, s. 535(5) (a) of the Criminal Code  refers to an acquittal or to a conviction, including a conviction or acquittal in another country.  In Libman v. The Queen, [1985] 2 S.C.R. 178, at p. 212, La Forest J., after ruling that each of the countries had a concomitant jurisdiction to try the offenders, said the following:

 

    I am also aware that the view I have taken leaves open the possibility that a person could be prosecuted for the same offence in more than one country, but any injustice that might result from this eventuality could be avoided by resort to the pleas of autrefois acquit and autrefois convict, which have been applied to persons tried in other countries; [Emphasis added.]

 

    Additionally, the American courts have held that the double jeopardy rule does not preclude two prosecutions for the same offence, one for a breach of federal law and the other for a breach of State law, noting that applying the double jeopardy principle in such circumstances could adversely affect the sovereignty of each government:  Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959).  The problem does not arise in this form in Canada, in view of the federal Parliament's supreme powers.  Still, it can be argued by analogy that a rule which prohibits the Canadian government from prosecuting someone because of an earlier conviction or acquittal in another country adversely affects Canadian sovereignty.

 

    In view of the conclusion I have arrived at on the second question, it is not necessary to decide in this case which of these two positions should prevail.

 

2.If the Answer to the First Question is Yes, Does Applying the Principles of Double Jeopardy Lead to the Conclusion That the Trial Judge Was Right in Ordering a Stay of Proceedings Against the Accused?

 

    Before answering this question, an answer must first be given to the following question:  did the Court of Appeal err in considering only the defence of autrefois acquit, without dealing with the other principles relied on by the accused, namely res judicata, the rule in Kienapple, the Latin maxim nemo debet bis vexari pro una et eadem causa and s. 11( h )  of the Charter ?

 

    I would answer this question in the affirmative.  The double jeopardy concept expressed in the Latin maxim cited is a principle of general application which is expressed in the form of more specific rules, such as the plea of autrefois acquit, issue estoppel and the rule stated in Kienapple.  The term res judicata, likewise, has sometimes been used in a broad sense to comprise all of these various principles, though since Laskin J. (as he then was) expressed his preference for the term in Kienapple, at p. 748, to describe the principle in that case it has often been used as a term of art.  The case law shows that these principles differ in the way they are applied, despite their common origin.  The application of s. 11( h )  of the Charter  must be determined by considering the wording of this provision.  For these reasons, each of the defences put forward by the accused must be considered separately.

 

    (a)  Autrefois acquit

 

    The defence of autrefois acquit is codified in the Criminal Code .  The relevant sections read as follows:

 

    534. (1)  An accused who is called upon to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

 

    535. (1)  An accused may plead the special pleas of

 

(a)  autrefois acquit,

 

(b)  autrefois convict, and

 

(c)  pardon.

 

                                                                          . . .

 

    (5) 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 662.1(1), as the case may be, of the offence charged in the count to which the plea relates;

 

    537. (1)  Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears

 

(a)  that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and

 

(b)  that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted of all the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded,

 

the judge shall give judgment discharging the accused in respect of that count.  [Emphasis added.]

 

    To make out the defence of autrefois acquit, the accused must show that the two charges laid against him are the same.  In particular, he must prove that the following two conditions have been met:

 

(1)  the matter is the same, in whole or in part; and

 

(2)  the new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible at that time to make the necessary amendments.

 

    It is sometimes difficult to apply the principle of autrefois acquit to charges arising in criminal law systems completely different from our own.  While the laws of different countries are rarely the same, it must be recognized that the plea of autrefois acquit is based on the principle of justice and fairness and that the Criminal Code  does not require that the charges be absolutely identical.  Despite the technical form of the relevant sections of the Criminal Code , the substantive point is a simple one:  could the accused have been convicted at the first trial of the offence with which he is now charged?  If the differences between the charges at the first and second trials are such that it must be concluded that the charges are different in nature, the plea of autrefois acquit is not appropriate.  On the other hand, the plea will apply if, despite the differences between the earlier and the present charges, the offences are the same.  For example, the presence under foreign law of a defence which does not exist under domestic law will not prevent the principle of autrefois acquit from applying:  R. v. Aughet (1918), 118 L.T. 658 (C.A.)

 

    The elements of the Canadian charges are as follows:

 

1.  At Roberval (in the province of Quebec), between February 22 and May 3, the accused (counts 1, 2, 3 and 4),

 

2.  Being a Canadian official (counts 1, 2, 3 and 4),

 

3.  Committed a breach of trust in connection with his duties as a Canadian official (counts 1, 2, 3 and 4),

 

4.  That is to say, converted to his personal use (confidential information contained in two reports and a telex (counts 1 and 3), copies, photocopies or reproductions of two reports and a telex containing confidential information (counts 2 and 4)) from the Drug Enforcement Administration,

 

5.  With the intent to derive a profit therefrom (counts 1 and 2).

 

    Applying the principle of autrefois acquit, the question which arises in this case is the following:  could the accused have been convicted on the American charges of the offences with which he is charged in Canada if the necessary amendments (not altering the nature of the offence) had been made?

 

    In my opinion the answer to this question must be no.  First, the Canadian charges are limited to events which occurred in Canada.  None of the American charges would have been laid if, for example, the accused had copied the telex in Canada without taking the copies to the United States.  Only the first American charge mentions Montréal, and it does so only with reference to the question of "interstate travel", which does not arise in the Canadian charges.

 

    Second, the conduct referred to in the American and Canadian charges is different.  American counts 1 and 3 require that the accused be an American official (according to a very broad definition) and that there should have been a transaction, that is an exchange of money for information or to exert illegal influence.  The Canadian charges, for their part, require that the accused be a Canadian official and make no reference to any exchange of money.

 

    The second American count requires only that a transaction have taken place.  The count mentions that the accused "did convey a record and thing of value of the United States".  The provision under which the charge was laid (18 U.S.C. {SS} 641) states that it is a crime for anyone to "knowingly convert [. . .] to his use . . . [a] record . . . or thing of value of the United States".

 

    Viewing this case in the light most favorable to the appellant, it could be assumed that the second count could have been amended to read as follows:  "Michael Adrian Van Rassel did knowingly convert to his use a record or thing of value of the United States"; this aspect of the charge would then have been the same as the Canadian charges.

 

    I am of the view, however, that the identity test in s. 537(1)(b) has not been met.  Even as amended, the second American charge would not include one essential element of the Canadian charge, that of being a Canadian official, because this latter element is not part of the offence defined in 18 U.S.C. {SS} 641.  (The American provision in question does not require that the accused be an official.)

 

    This analysis leads me to conclude that the accused could not have been convicted in the United States for offences of the same nature as those in the Canadian charges.  Since the Canadian charges deal with Canadian events, require no proof of payment in exchange for information or illegal influence and are based on a breach of trust by a Canadian official in relation to the people of Canada, they are clearly different from the American charges.

 

    For these reasons, I conclude that the plea of autrefois acquit does not apply in the circumstances.

 

    (b)  Rule in Kienapple

 

    This rule, which is said to be based on the broader principle of res judicata, applies when two separate charges are based on the same delict or cause.  It prescribes that a conviction cannot be registered on the second charge if there has been a conviction on the first charge.  The same delict or cause is involved where there is no additional and distinguishing element contained in the offence that goes to guilt:  R. v. Prince, [1986] 2 S.C.R. 480.

 

    The rule stated in Kienapple does not assist the accused's case as the rule does not apply to offences involving different victims (assuming without deciding the point that the rule in Kienapple applies to charges laid after an acquittal).  In Prince, Dickson C.J. wrote, at pp. 506-7:

 

It would appear from this passage that, at least in so far as crimes of personal violence are concerned, the rule against multiple convictions is inapplicable when the convictions relate to different victims.  Indeed, I believe it was never within the contemplation of the majority in Kienapple that the rule enunciated therein would preclude two convictions for offences respectively containing as elements the injury or death of two different persons.

 

    Society, through the criminal law, requires Prince to answer for both the injury to Bernice Daniels and the death of the child, just as it would require a person who threw a bomb into a crowded space to answer for the multiple injuries and deaths that might result, and just as it compels a criminally negligent driver to answer for each person injured or killed as a result of his or her driving:  see R. v. Birmingham and Taylor (1976), 34 C.C.C. (2d) 386 (Ont. C.A.)

 

    There is no question in this case of bodily injuries to different victims.  Multiple victims are nonetheless involved.  Van Rassel had a general duty of loyalty to the Canadian people and a temporary duty of loyalty to the United States, based on the trust placed in him.

 

    For this reason, I am of the view that the rule in Kienapple does not apply in the circumstances.

 

    (c) Issue Estoppel

 

    The rule that a court should not rule on an issue that has already been decided by another court is a fundamental principle of our system of justice.  The fact that a matter has already been the subject of a judicial decision may raise an estoppel against the party seeking to relitigate the matter.  This is the principle of issue estoppel, and it too is related to the principle of res judicata.  Issue estoppel is recognized in Canadian criminal law:  Gushue v. The Queen, [1980] 1 S.C.R. 798.

 

    The respondent suggests that issue estoppel could not apply with respect to a foreign criminal judgment since the parties involved are not the same.  It will not be necessary to decide this point since it is well established that the principle applies only in circumstances where it is clear from the facts that the question has already been decided.  Laskin C.J. wrote in Gushue, at p. 807:

 

    I am of opinion that the question of issue estoppel in respect of the robbery conviction is put to rest by the following statement, which I adopt, in Friedland, Double Jeopardy (1969), at p. 134:

 

    . . . The possibility or even the probability that the jury found in the accused's favour on a particular issue is not enough.  A finding on the relevant issue must be the only rational explanation of the verdict of the jury.

 

See also Wright v. The Queen, [1963] S.C.R. 539; Connelly v. Director of Public Prosecutions, [1964] A.C. 1254.

 

    In the present case there is nothing to indicate that the American jury found in the accused's favour on the particular issues raised in the Canadian charges.  The jury might have acquitted the accused for reasons entirely distinct from those underlying the Canadian jury's decision.  This becomes apparent when we consider the differences between the American and Canadian charges.  The result might perhaps have been different if the appellant had adduced in evidence the opinion of an expert in American law establishing that an issue in the Canadian proceedings had been decided in his favour in the United States, but he did nothing in this regard.  This defence thus does not assist the accused's case.

 

    (d) Section 11( h )  of the Charter 

 

    Section 11(h) reads as follows:

 

11.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;

 

    Section 11( h )  of the Charter  applies only in circumstances where the two offences with which the accused is charged are the same.  In R. v. Wigglesworth, [1987] 2 S.C.R. 541, this Court held that the same act can give rise to different offences, each offence being based on a separate duty.  Wilson J. said, at p. 566:

 

    I would hold that the appellant in this case is not being tried and punished for the same offence.  The "offences" are quite different.  One is an internal disciplinary matter.  The accused has been found guilty of a major service offence and has, therefore, accounted to his profession.  The other offence is the criminal offence of assault.  The accused must now account to society at large for his conduct.  He cannot complain, as a member of a special group of individuals subject to private internal discipline, that he ought not to account to society for his wrongdoing.  His conduct has a double aspect as a member of the R.C.M.P. and as a member of the public at large.  To borrow from the words of the Chief Justice quoted above, I am of the view that the two offences were "two different `matters', totally separate one from the other and not alternative one to the other".  While there was only one act of assault there were two distinct delicts, causes or matters which would sustain separate convictions.

 

In the present case the American and Canadian offences are different because they are based on duties of a different nature.  Even though the American and Canadian offences are purely criminal in nature, the alleged conduct of the accused has a double aspect:  first, wrongdoing as a Canadian official with a special duty to the Canadian public under s. 111  of the Criminal Code , and second, wrongdoing as an American official or member of the American public, temporarily subject to American law.  The accused must now account for his conduct to the Canadian public as well as to the American public, as the offences relate to different duties.  For this reason, I am of the opinion that s. 11( h )  of the Charter  is of no assistance to the accused.

 

Conclusion

 

    For all these reasons, I would dismiss the appeal and refer the matter back to the trial judge for the trial to proceed.

 

    Appeal dismissed.

 

    Solicitor for the appellant:  Lawrence Corriveau, Québec.

 

    Solicitor for the respondent:  Daniel Brunet, Montréal.