The Senate and Double Jeopardy

October 29, 2013

I have the utmost respect for the Honourable Senator George Baker.  I have often appeared before the Senate Committee on Legal and Constitutional Affairs of which Senator Baker is an active and engaging member (perhaps even my favourite).  

If there is any argument in favour of the Senate and the sober second thought it provides it can be found in Senators like Mr. Baker. 

It is no surprise that Senator Baker urges restraint and caution in relation to the Senate process to suspend Senators Wallin, Duffy, and Brazeau.  The rush to judgement, lack of due process and lack of transparency is appalling.  Certainly, standards in the Senate fall well short of what can be seen in Canadian Courts.  

Quite frankly, the only way the Senate could be any less democratic is if a precedent is set where the majority could suspend and silence the minority without procedural safeguards.

Senator Baker is correct that actions in the Senate regarding Duffy, Wallin, and Brazeau could interfere with and impact any criminal investigation.  

However, Senator Baker goes further to suggest that the Senate proceedings could trigger double jeopardy.  With the greatest respect to Senator Baker his application of the defence of autrefois convict  or autrefois acquit (aka double jeopardy) and its potential impact on future criminal prosecution is problematic.  

In this respect I echo the comments of Ottawa defence lawyer Michael Edelson to The Hill Times.  

During the October 24 Senate debate Senator Baker addressed the issue of double jeopardy.  Senator Baker begins his analysis by correctly pointed out that section 118 of the Criminal Code defines ‘judicial proceeding’ as a proceeding:

(   b) before the Senate or House of Commons or a committee of the Senate or House of Commons, or before a legislative council, legislative assembly or house of assembly or a committee thereof that is authorized by law to administer an oath

The Placement of section 118 in the Criminal Code is important.  Section 118 is contained in the definition section for Part IV of the Code relating to offences against the administration of law and justice.  The placement of this definition in Part IV as opposed to the definitions section at the beginning of the Criminal Code (s. 2) may suggest a narrower application of the term ‘judicial proceeding’.  

The above is important given Senator Baker’s next point.  He suggest that double jeopardy would apply under section 609 of the Criminal Code.  The Criminal Code directs:

609 (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.

The first issue with the argument that a proceeding in the Senate could trigger a defence of autrefois convict is that section 609 is contained in Part XX of the Criminal Code.  The robust definition of ‘judicial proceeding’ suggested by Senator Baker may not apply in Part XX of the Criminal Code as it would in Part IV of the code.

Support for this proposition is drawn from section 609 itself.  Section 609 does not use the language of ‘judicial proceeding’ but the term ‘former trial’.  The proceedings in the Senate can hardly be called a trial given that none of the typical procedural safeguards are present.  In fact, the lack of these procedural safeguards seems to be the very reason some Senators are not in support of the motion.

Senator Baker also cites section 610 of the Criminal Code as a double jeopardy worry.  He says:

Section 610 of the Criminal Code is even more on point. It says this, which I believe will apply in this case.Where an indictment charges substantially the same offence as that charged in an indictment on which an accused was previously convicted or acquitted, but adds a statement of intention or circumstances of aggravation tending, if proved, to increase the punishment, the previous conviction or acquittal bars the subsequent indictment.

Section 610 uses the language of ‘indictment’, ‘charge’, ‘convicted’ and ‘acquitted’.  This does not capture the nature and quality of the ongoing Senate proceedings.  

Certainly there has not been an indictment as contemplated by the code – one that charges an offence.  There will not be a conviction or acquittal.  Reference to section 610 of the Criminal Code does not support the proposition that double jeopardy would apply.

Senator Baker does reference some cases where the language in section 118 has been interpreted by the courts.  He specifically mentions the the case R. v. Wijesinhawas.  In this case a lawyer was charged with professional misconduct under the Law Society Act.  The police learned that the Law Society believed that some statutory declarations the lawyer had submitted to it were false.  The police charged the lawyer with four counts of attempting to obstruct justice (s. 139 of the Criminal Code).  The Supreme Court of Canada ruled that the Law Society disciplinary proceeding was a ‘judicial proceeding’ under section 118(d) (the person presiding can administer oaths and compel evidence) and (e) (a legal right or a legal liability may be established by the tribunal).  Thus the Court found a charge under section 139 for obstructing a judicial proceeding to be valid.

It should be noted that section 139 (obstruction) falls within Part IV of the Criminal Code – the same part as section 118.  More importantly the Wijesinhawas case is distinguishable from the Senate matter and does little to address the issue of the words ‘trial’, ‘indictment’, ‘convicted’ and ‘acquitted’ found in sections 609 and 610 of the Criminal Code.

Most tellingly, a broad application of double jeopardy as suggested by Senator Baker would lead to absurd results.  

For Example, a lawyer disciplined and expelled by the Law Society for committing murder could then employ the defence of autrefois convict to escape criminal prosecution.  I don’t think the the Criminal Code would be interpreted in a way to give lawyers or Senators a license to kill.

Although I disagree with Senator Baker on the issue of double jeopardy, I do agree with the principles that underpin his argument.  Caution is required.  Due process is important.  A rush to judgement has the potential to undermine any criminal investigation, dispenses with any notion of due process, and may very well set an undemocratic precedent for future cases. 

Senator Baker’s caution is commendable and warranted as it seems that the rush to judgment in the Senate is motivated more by politics than by principled.