INTRODUCTION AND BRIEF DESCRIPTION
If a person has been tried and dealt with for an offence outside Canada in a manner that would allow them to plead autrefois acquit, autrefois convict, or pardon in Canada, they shall be deemed to have been so tried and dealt with in Canada.
SECTION WORDING
7(6) Where a person is alleged to have committed an act or omission that is an offence by virtue of this section and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if that person had been tried and dealt with in Canada, he would be able to plead autrefois acquit, autrefois convict or pardon, that person shall be deemed to have been so tried and dealt with in Canada.
EXPLANATION
Section 7(6) of the Criminal Code of Canada is an important provision that deals with the issue of double jeopardy. It provides that where a person has been tried outside Canada for an act or omission that is an offence in Canada under section 7 of the Criminal Code and the manner of the trial was such that they would have been able to plead certain defences had they been tried in Canada, then they cannot be tried again for the same offence in Canada. The defences that are referred to in this provision are autrefois acquit, autrefois convict, or pardon. Autrefois acquit means that the person has already been acquitted of the offence in question, while autrefois convict means that they have already been convicted of the offence. A pardon is a formal forgiveness of the offence by the government. The purpose of this provision is to prevent the possibility of a person being tried twice for the same offence. This is an important protection against injustice and abuse of power by the state. It is based on the principle of double jeopardy, which is a fundamental principle of criminal law that prohibits a person from being tried or punished twice for the same offence. In summary, section 7(6) of the Criminal Code of Canada ensures that a person who has already been tried and dealt with outside Canada for an offence under section 7 of the Criminal Code in a manner that would have allowed them to plead certain defences, cannot be tried again for the same offence in Canada. This provision helps to protect the fundamental rights of individuals and ensure that justice is served fairly and consistently.
COMMENTARY
Section 7(6) of the Criminal Code of Canada deals with the concept of double jeopardy, which prevents a person from being prosecuted twice for the same offence. The provision states that if a person has been tried and dealt with outside Canada for an offence that is also an offence under Canadian law, and the outcome of the trial would have resulted in a plea of autrefois acquit (previously acquitted), autrefois convict (previously convicted), or pardon if tried in Canada, then that person will be deemed to have been tried and dealt with in Canada. This provision is significant in that it ensures that a person is not subjected to multiple prosecutions for the same offence, even if the first trial took place in a foreign jurisdiction. It also recognizes the principle of comity, which is the customary practice of recognizing and respecting the legal systems and judgments of other countries. The provision applies to offences that fall under section 7 of the Criminal Code, which includes offences that are committed outside of Canada but are punishable under Canadian law. This section covers offences such as terrorism, war crimes, and certain sexual offences, which can have significant international ramifications and require international cooperation in their prosecution. In practical terms, this provision means that if a person is charged with an offence that they have already been tried and dealt with outside of Canada, they can raise the plea of autrefois acquit, autrefois convict, or pardon, and the court will accept that plea as if the trial had taken place in Canada. This prevents the person from being subjected to multiple prosecutions for the same offence and protects their right to a fair trial. Overall, section 7(6) is an important provision that ensures that the principles of double jeopardy and comity are upheld in cases where a person has already been tried and dealt with outside of Canada for an offence that is also an offence under Canadian law. It recognizes the international aspect of certain offences and ensures that a person's rights are protected, regardless of where the offence was committed or the first trial took place.
STRATEGY
Section 7(6) of the Criminal Code of Canada is a crucial provision that can have considerable implications for the accused, prosecutors, and defence attorneys in cases involving offences committed outside Canada. This section addresses the issue of double jeopardy and provides legal protection to individuals who have already been tried for an offence outside Canada, ensuring that they are not re-tried in Canada for the same offence. In this essay, we will explore some strategic considerations that both sides ought to keep in mind when dealing with this section, including strategies that could be employed to maximize the benefit of this provision. For the accused, there are several strategic considerations to bear in mind when invoking this section. The first consideration is the need to prove that the foreign prosecution is equivalent to the Canadian offence. If the foreign offence is substantially different from the Canadian offence, the accused may not be protected under this section. Therefore, the accused must gather sufficient evidence to demonstrate that the foreign offence is essentially the same as the Canadian offence. The second consideration is the need to prove that the foreign trial was conducted fairly and in compliance with due process requirements. In other words, the accused must show that they received a fair trial abroad, equivalent to a Canadian trial, including any of the constitutional protections provided by the Canadian Charter of Rights and Freedoms. Failure to prove that the foreign trial met such standards may result in facing charges in Canada. From the prosecution's standpoint, the strategic consideration is the need to conduct a thorough investigation of the foreign trial to determine if it meets Canadian standards. If the foreign trial was tainted with any irregularities or if it failed to provide the defendant with a fair hearing, the prosecution can argue that the accused should not be exempt from prosecution in Canada. For example, if the prosecution suspects that the foreign trial was conducted in circumstances where the defendant's Charter rights were violated, they could argue that the accused should not be protected under section 7(6). Such a situation could arise if the state abused its power in obtaining evidence, or if the accused was prevented from accessing legal representation to defend themselves thoroughly. In terms of strategies that could be employed when dealing with section 7(6), there are several avenues that the accused and the prosecution can pursue respectively. Suppose the accused is seeking to rely on this section to avoid prosecution in Canada following foreign proceedings. In that case, the accused could marshal evidence to show that the foreign prosecution was conducted under comparable due process standards as those specified under the Canadian Constitution. The accused could also consider obtaining a transnational legal opinion from a recognized defense lawyer or law firm to make it easier for Canadian authorities to cross-check and further verify their evidence. From the prosecution's standpoint, the most prudent approach would be to investigate the foreign proceedings thoroughly, including identifying any potential challenges to the jurisdiction, evidentiary issues, and other irregularities that may have tainted the foreign proceedings. This examination should not just focus on the procedure of the trial itself, but also any procedural aspects of the foreign legal system, including proof of the defendant's mental capacity, and whether the evidence presented outside Canada would be admissible, were a Canadian court to adjudicate the same case. The prosecution could also consider seeking the assistance of foreign authorities to secure evidence and records that would render their case stronger when arguing against the accused's interpretation of section 7(6). In conclusion, Section 7(6) of the Criminal Code of Canada provides an essential safeguard for accused individuals who are being tried both inside and outside Canada, to prevent them from facing the risk of double jeopardy. However, the interpretation of section 7(6) is not always straightforward, and careful consideration and planning are necessary to ensure success. By utilizing the strategies suggested in this essay, counsel for both parties can make the most effective use of this section and stand the best possible chance of a positive outcome for their clients.
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