Prohibition of Double Jeopardy in Canada. Is It Just?

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Prohibitionof Double Jeopardy in Canada. Is It Just?

Generally,Double Jeopardy is a second trial for the same crime after convictionor acquittal. In some countries such as US and UK, Double Jeopardy isa rule, principle or legal procedure that ensures that the defendantdoes not stand trial twice or multiple times for the same or similarcrime where he or she was previously convicted, acquitted orpardoned. The main aim of this paper is to justify and support theprohibition of double jeopardy in Canada as well as show theattainment of justice in the process of protecting the society. Itensures dispensation of justice irrespective of time taken and costincurred.

InCanada, an acquitted defendant can stand trial multiple times butcannot serve multiple punishments for the same crime (Baykara 2). Itshows that prohibition of double jeopardy is not fully upheld inCanada. Four key points thoughtfully selected will ensure that thereis an exemplary attainment of the paper`s primary objective. Thepoints include evidence, respect for law and societal morality, arisk of wrongful conviction and distress of trial period (Baykara 1).

Thecriminal law protects the citizens from dishonesty, violence andother evil with legal standards. The law is a two-way process itcontrols the liberty of the citizen by condemning various kinds ofacts while protecting the person. The law has limitations built toavoid abuses from the society. According to Baykara (1), the rule ofDouble Jeopardy is one of the most important rules of criminalprocedure. In the past, the law against double jeopardy prohibitedmultiple trials and punishments imposed on a convict. In the recentyears, the rule prohibiting multiple trials for the same offenseallows an exception similar to the law exceptions put in place by theUK parliament (Baykara 1).


Theissue of evidence when it comes to discussion on the prohibition ofdouble jeopardy is very controversial. Although some may argueotherwise, I think the point of evidence strongly supports theprohibition of double jeopardy especially with the currentadvancements in technology. The rise of modern age forensics sciencestrongly supports the ideology of single trials since evidence isanalyzed conclusively. Technology aids in bridging gaps formerlyexperienced during investigations (Baykara 63).

It`scredible to argue that, according to criminal justice practice, inthe event of lack of incriminating evidence during the original trialthen under those particular circumstances the trial was fair (Baykara61). With the progress advancements in technology, investigationscontinue to be more accurate and strengthened, but this doesn`t makeprevious acquittals necessarily incorrect. As much as we want toretry cases based on technological evidence, it may also lead to theconviction of entirely innocent people (Baykara 61).

Whendiscussing the evidence factor and its influence in double jeopardy,the issue of corruption comes into play. Allowing a case back intotrial primarily depending on eyewitness evidence brings the questionon the reliability of the information especially if it’s after avery long time (Baykara 63). The credibility of the witnessinformation may be put into question since witness tampering may haveoccurred. Witness tampering can occur via various ways especiallysince confidential witnesses are exposed during trial period hence inthe event of a retrial they could be compromised. Bribing, extortion,blackmail and intimidations are some of the ways through whichwitnesses are compromised. Corruption can be executed by theplaintiffs and in some occasions by state prosecutors to getconvictions especially in cases of high public profile. Byeliminating high chances of a second trial contamination or‘doctoring` of evidence materials is minimal. Investigators may becompelled to incriminate innocent defendants especially if the publicoutcry pertaining that case is pronounced (Mashile 34).

Prohibitionof double jeopardy ensures that investigations are initially carriedout satisfactorily since the chances of a retrial are limited. Thefact that the prosecution only has a single shot at carrying out ajust trial acts as an incentive for proper and exhaustiveinvestigations. According to Stratford (200), little or absence ofincriminating evidence may let a guilty individual walk. A singleshot motivates the investigators to carry out a thorough andconclusive investigation to hold a water tight case. Prohibitingdouble jeopardy acts as a motivating factor towards an efficientdispensation of justice.

Justicedelayed is justice denied hence a timely closure allows the victimsto start healing. With the current technological advancements andtechniques in forensics and DNA testing, evidence examination is withutmost accuracy. The accuracy of the evidence provided is paramountin any case and ultimately ensures that the guilty party isconvicted. An efficient and thorough investigation helps us achieveactual dispensation of justice.

Properscrutiny of the evidence provided is vital especially in thedetermination of crimes that a defendant is liable of. Prohibitingdouble jeopardy ensures saving of resources and time since arespondent has to respond to all offenses pertaining a particularcrime. This scrutiny applies by the use of the extended rule wherepolice or investigators are compelled to investigate all aspects ofan incident which may have constituted the commission of a crime(Mashile 34). This aspect ensures that both crimes are triedconcurrently, therefore, saving on costs and time. This examinationalso ensures that in the scenario of multiple offenses, convictsdon`t get a free pass on some crimes committed.

Forinstance, the Guy Paul Morin trial is one of the landmark cases thatexhibit why double jeopardy should be prohibited in Canada. Chargedwith the murder of Christine Jessop, whose body was found in woodsnorthern of Toronto, Morin faced the full force of the Canadiancriminal justice system. The state presumed the guiltiness of Morinhence they threw every arsenal possible at his defense. In 1985,Morin was initially acquitted by a grand jury because the evidencewasn`t compelling enough. Since double jeopardy laws are not upheldin Canada compared to the US, in 1992 Morin underwent a second trialand convicted. When Morin`s lawyers appealed, they institutedadvanced DNA tests. In a turn of events, Morin was found innocent andexonerated. It turns out the first jury was right. During the secondtrial, serious questions arose mainly due to the evidence broughtforward. The integrity of the witnesses and physical exhibitspresented were highly questionable. Witness tampering ensured whenthe fellow inmates testified in a bid to have the state prosecutiongo easy on them in their cases. The credibility of the forensics laband the investigations carried by the police department came underpublic scrutiny.

Respectof law and societal morality

Thechief principle why we all live in a friendly atmosphere within thesociety is because of our respect for legislation that governs us.Rules constitute the fabric of our societal guidelines in the entirescope of life social, economic and political aspects of life.Maintaining the rule of double jeopardy restores our faith in ourlaws and the justice system in its entirety. Imagine molding asociety around a system that administers punishment thenre-administers the same sentence again. Having faith in our justicesystem is vital especially to the public. The justice system isdesigned to protect the rights of both the plaintiff and thedefendant, but double jeopardy may align more to getting convictionsand not the dispensation of justice itself. The public needs somefinality especially in circumstances where the cases are of asubstantial public interest. The retrial of these cases may lead to abias of the jury due to the shaping of opinions by the court ofpublic opinion (Mashile 26).

Bymaintaining the prohibition of double jeopardy, we set the limits forthe state especially prosecution. In cases of significant publicinterest, the prosecution may go to great lengths to attain closureat the expense of the facts (Baykara 5). The state has incrediblepower and resources at its disposal. Therefore it is the work of lawsto limit it to a legal framework that ensures the upholding ofconstitutional structures, and it doesn`t overstep. Double jeopardyconfines the prosecution`s power and prevents it from molesting theaccused. This limitation ensures that the law and bill of rights arerespected, further giving some moral sanity to the justice system.The double jeopardy rule provides that the judiciary doesn`t turninto a bullying beast especially in cases that involve public opinionand the pressure that amounts from the public (Simon 45).

Doublejeopardy prohibition seeks to bring fairness in the Canadian justicesystem particularly as it is incorporated as a right and not ajudicial procedure or law. It levels the ground between the state andthe accused especially since the defendant may not have resources athis/her disposal to fight multiple prosecutions. It seeks to balancethe maxims of the sanctity of the justice system and the autonomy ofthe defendant (Baykara 6). The credibility and finality of thejudiciary should be in full dispensation and by capping thesituations that trigger retrials goes a long way to attaining this.

Allowingdouble jeopardy amounts to the erosion of presumption of innocence.Per the law, each and every one is innocent until proved guilty.Since the basis for reopening a case is the assumption that theevidence found is compelling enough, there is a presumption that theaccused is guilty. The public, including the jury, has a bias thatthe defendant is guilty even before the commencement of thesubsequent trial. In order to instill credibility and confidence inour justice system, double jeopardy needs to be prohibited. What`sthe essence of standing a trial if the jurists already havepresumptions that you’re guilty? (Mashile 34).

Distressof Trial Period

Itis distressing to expose the defendant to expense, embarrassment andordeal and ensuring that he or she lives in a continued state ofinsecurity and anxiety during several and prolonged prosecutionproceedings. The Law Commission of UK in its ConsultationPaper No. 156, reviewedin 2015, stated:

Itis hard on the defendant if, after he has at a great cost in moneyand anxiety secured a favorable verdict from a jury on a particularissue, he must fight the battle over again when he is charged with atechnically different offense arising out of the same facts (31).

Theordeal of undergoing a second trial for the same offense is unjust tothe defendant. Therefore, prohibition of double jeopardy in Canada isjust and protects its citizens against dishonesty and violation oftheir Human Rights. The cost of a trial is high, for a second hearingto take place justly it becomes unbearable for the defendant. Incountries such as Canada and UK where there is a legal aid to thedisadvantaged, the cost of a trial regarding money is not a big deal,but the cost in anxiety is a burden to the defendant and his/herfamily. Putting a man on trial multiple times for the same crime isan approach confined to torture. It doesn’t matter whether theaccused is convicted or acquitted for the justice system to prosecutehim or her for the second time (Simon 41).

Itis no doubt that it is extremely distressing to face a trial for aserious offense. Leave alone a retrial just a single trial can be apainful ordeal. Besides the defendant, the witnesses on all sidesincluding the alleged victim (plaintiff) and the family members ofall involved parties suffer the same distress of the trial. Thisconsideration is compelling and justifies the laws that prohibitdouble jeopardy (Simon 42).

Thetrauma and distress of a trial process are enough to argue that anindividual should not at any circumstances undergo a second trial ofthe same offense. However, the trauma and distress are the samewhether the retrial is for a different crime or the same offense. Theargument is adequate to show that double jeopardy is unjust andshould be completely prohibited in Canada and all over the world(Stratford 202).

Riskof Wrongful Conviction

Accordingto Neiderman (89),repeated trials increase the likelihood of the accused to receivewrong convictions. The argument lies on the basis of inadequateresources and lack of stamina to effectively fight a second trial. Asdiscussed earlier, in Canada, the lack of resources financially itdoes not affect defendants during trials because of the legal aidavailable to help the disadvantaged. On the other hand, the risk ofwrongful conviction increases by any retrial. In most cases thejuries are different and they may return with varying verdicts ondifferent occasions. A defendant found not guilty in the first trialdue to lack of evidence may receive wrong conviction as a result ofthe prosecution`s need for finality. The prosecution may coachwitnesses and manipulate the evidence available to prosecute theaccused finally. The argument shows that double jeopardy is unjustand supports the complete prohibition of the practice in Canada(Neiderman 92).

Besides,the prosecution enjoys a tactical advantage in a second trial sincethe defense has laid all their arguments. It increases theprobability of conviction whether the accused is innocent or guilty.The arguments are valid, and they apply whether the second trial isfor a different or the same crime based on similar facts. Stratford(207), supports the prohibition of double jeopardy and justifies therule protecting the citizens from the dishonest and violate practiceof multiple trials (Stratford 207).


Thepaper shows that prohibition of double jeopardy is not fully upheldin Canada. Acquitted defendants can stand multiple trials in Canadaand even people accused and tried in a different country can beretried in a court of law in Canada for the same crime. Prohibitionof double jeopardy in Canada is just and should be fully upheld inall occasions regarding the law to protect and serve the citizens.Double jeopardy terrorizes the people bound to follow the law. Itdistresses the accused and everybody involved, wrongly convictssuspects and disrespects the law and societal morality. Continueduphold of double jeopardy in the justice systems will force thepeople it is designed to guide and protect to lose trust in thesystem.


Baykara,Yuce. Acquittedwith an Asterisk: Implementing the&quot New Double Jeopardy&quotException into Canadian Law.University of Toronto, 2012. Web. 25 March. 2017.

Keating,Patrick J. &quotFifth Amendment, Double Jeopardy in CapitalSentencing, Bullington v. Missouri.&quot&nbspAkronLaw Review&nbsp15.2(2015): 7. Print.

Neiderman,Andrew. InDouble Jeopardy. NewYork: Simon and Schuster, 2012. Print.Stratford,Martin.Double Jeopardy.New York: Robert Hale, 2012. Print.

Tsega,Mashile. Prohibitionof Double Jeopardy: A Case Study.Addis Ababa University, 2015. Web. 25 March. 2017.

Verdun-Jones,Simon. CriminalLaw in Canada. Ontario:Nelson Education, 2014. Print.

LawCommission Consultation Paper No. 156, 2015. Retrieved from