Criminal Code of Canada - section 607(6) - Exception: foreign trials in absentia

section 607(6)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines exceptions to the principle of autrefois convict for Canadian offenses committed outside of Canada.

SECTION WORDING

607(6) A person who is alleged to have committed an act or omission outside Canada that is an offence in Canada by virtue of any of subsections 7(2) to (3.4) or (3.7), or an offence under the Crimes Against Humanity and War Crimes Act, and in respect of which the person has been tried and convicted outside Canada, may not plead autrefois convict with respect to a count that charges that offence if (a) at the trial outside Canada the person was not present and was not represented by counsel acting under the person’s instructions, and (b) the person was not punished in accordance with the sentence imposed on conviction in respect of the act or omission, notwithstanding that the person is deemed by virtue of subsection 7(6), or subsection 12(1) of the Crimes Against Humanity and War Crimes Act, as the case may be, to have been tried and convicted in Canada in respect of the act or omission.

EXPLANATION

Section 607(6) of the Criminal Code of Canada limits the use of the plea of autrefois convict (double jeopardy) in cases where a person is alleged to have committed an offence outside of Canada, but that offence is also considered a crime in Canada based on subsections 7(2) to (3.4) or (3.7) or under the Crimes Against Humanity and War Crimes Act. This section specifies that a person cannot use the defence of double jeopardy if they have been tried and convicted for the same offence outside of Canada, but only if certain conditions are met. Firstly, the person must not have been present at the trial outside of Canada and must not have been represented by a lawyer. Furthermore, the person must not have been punished in accordance with the sentence imposed on conviction in respect of the act or omission. Finally, the section specifies that even if the person is deemed to have been tried and convicted in Canada for the act or omission, they are still not entitled to use the defence of double jeopardy. In essence, this section ensures that individuals cannot avoid prosecution for an offence by arguing that they have already been punished for the same offence under different legal jurisdictions. It also ensures that a person cannot claim the right to be tried in Canada for an offence that they have already been tried and convicted for outside of the country.

COMMENTARY

Section 607(6) of the Criminal Code of Canada stipulates that a person who is alleged to have committed an act or omission outside Canada, which is an offence in Canada under any of subsections 7(2) to (3.4) or (3.7), or under the Crimes Against Humanity and War Crimes Act, may not plead autrefois convict if they have been tried and convicted outside Canada. To understand this provision fully, it is necessary to examine each part of the section in detail. Firstly, subsections 7(2) to (3.4) or (3.7) of the Criminal Code of Canada outlines the types of offences that are deemed criminal if committed outside the country. These include terrorism offences, sexual offences, and various other offences with Canadian jurisdiction under specific circumstances. This subsection is significant because it means that an individual could be charged with a crime in Canada for conduct that occurred outside the country. Secondly, the Crimes Against Humanity and War Crimes Act specifically deals with offences related to crimes against humanity and war crimes. This legislation is important because it allows Canada to prosecute individuals alleged to have committed such crimes, regardless of where they occurred. Section 607(6) assumes that a person has been tried and convicted outside Canada for an act or omission that is an offence in Canada by virtue of the above-mentioned subsections or the Crimes Against Humanity and War Crimes Act. It then establishes two conditions under which the person cannot plead autrefois convict. The first condition is that the person was not present and was not represented by counsel acting under their instructions at the trial outside Canada. This provision is crucial because it ensures that the person had no ability to influence the outcome or defend themselves before the foreign court. Furthermore, it also acts as a safeguard against unfair trials that may have violated the principles of natural justice. The second condition is that the person was not punished in accordance with the sentence imposed on conviction in respect of the act or omission. This provision is noteworthy because it means that the person must have received a sentence that reflects the gravity of the offence in Canada. Essentially, the sentence must be equivalent to what the person would have received if tried and convicted in Canada. Despite satisfying these two conditions, the provision of section 607(6) seems to be quite restrictive. It is unclear why a person who has been convicted in a foreign jurisdiction cannot plead autrefois convict in Canada if they meet the other conditions. This becomes even more complicated when one considers that a foreign jurisdiction may have different laws or penalties for the same offence. It is possible that this provision may cause issues when determining appropriate sentences for crimes committed abroad and convicted in a Canadian court. Overall, section 607(6) of the Criminal Code of Canada is an essential provision because it allows Canada to prosecute individuals who have committed crimes abroad. However, it is imperative to ensure that the accused person has had a fair trial and received an appropriate sentence before denying them the right to plead autrefois convict. Furthermore, this provision must be carefully considered in cases where a foreign jurisdiction's laws and penalties differ from those in Canada.

STRATEGY

Section 607(6) of the Criminal Code of Canada essentially prohibits a person from pleading autrefois convict" (double jeopardy) if they committed an offence outside Canada that is also an offence in Canada, for which they were tried and convicted outside Canada. The section is particularly relevant in cases that involve crimes against humanity and war crimes. In such cases, a person cannot escape prosecution in Canada by virtue of being tried and convicted of the same offence in another country. When dealing with this section of the Criminal Code, there are several strategic considerations that need to be taken into account. For instance: 1. Choice of jurisdiction: If an accused is facing charges for an offence that is regulated under Section 607(6), the location of their trial is an important consideration. It is often strategically better to have the trial in the country where the offence was committed, as opposed to Canada. This not only limits the risk of prosecution in Canada, but also allows the accused to mount a stronger defense based on factors such as access to evidence and witnesses. 2. Presence and representation: According to Section 607(6), if an accused was not present during their trial in another country and was not represented by counsel acting under their instructions, they cannot plead autrefois convict" in Canada. As such, it is important to ensure that the accused is present at their trial and fully represented by counsel. 3. Sentence imposed: Another factor that can help to limit the risk of prosecution in Canada is ensuring that the accused is punished in accordance with the sentence imposed on conviction in the other country. This can be done by negotiating with the foreign jurisdiction to ensure that the sentence imposed is appropriate and aligns with Canadian sentencing standards. 4. Defense strategy: It is also important to develop a strong defense strategy that can be used both in the foreign jurisdiction and in any potential prosecution in Canada. This can include gathering favorable evidence, challenging the credibility of prosecution witnesses, and developing a coherent narrative that supports the accused's innocence. In conclusion, Section 607(6) of the Criminal Code of Canada is a complex regulation that requires careful strategic consideration when dealing with cases involving crimes against humanity and war crimes. By considering factors such as jurisdiction, presence, sentence, and defense strategy, lawyers can effectively navigate this regulation and ensure the best possible outcome for their clients.