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Transcript of Double Jeopardy
• The defence has admitted on these facts that Wigglesworth committed a common assault as defined in the Criminal Code.
• Two charges were laid following this incident.
• Wigglesworth was charged with common assault contrary to s. 245(1) of the Criminal Code, R.S.C. 1970, c. C-34.
• Wiggleswroth was also charged under the RCMP Act. R.v. Wigglesworth Facts Thoughts What is Double Jeopardy? Double jeopardy means to be tried twice for the same offence. Under section 11 of the Charter, it is prohibited: "Any person charged with an offence has the right... 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." R.v. Wigglesworth Roger Wigglesworth was an RCMP officer who committed an assault and was charged with assault under the Royal Canadian Mounted Police Act. He was initially convicted of a "major service offence" under the Act by a disciplinary board and ordered to pay a find of $300.
Subsequently he was also charged with common assault under the Criminal Code. He argued that he couldn't be charged on the grounds that it would constitute double jeopardy in violation of Section 11 of the Charter. R.v. Wigglesworth Facts • Wigglesworth was a full time constable of the RCMP. On August 21st 1981, Donald Kerr was brought to the RCMP detachment in Yorkton, Saskatchewan for a breathalyzer test.
• Wigglesworth questionsed Kerr concerning the incident of his arrest.
• Wigglesworth suspected Kerr was lying after repeating his question multiple times and receiving the same response.
• Wiggleswroth grabbed Kerr by the throat and shoved him against a wall - which caused a choking sensation to Kerr. Later, Wigglesworth slapped Kerr three or four times across the face with his open hand.
• At no time did Kerr respond physically to Wigglesworth's slaps. Location and the Court's Decision, and Judicial Decision • The case was heard in the Supreme Court of Canada.
• The trial happened in 1987.
• The Supreme Court found the appellant guilty as charged and was fined $250 to be paid within one month, or to be in prison for 15 days.
• Justice Wilson, writing for the Court majority, found that Section 11(h) had not been violated by the second charge, as the first charge under the Royal Canadian Mounted Police Act was disciplinary in nature and related to the private sphere of RCMP conduct. Wigglesworth could be charged with common assault.
• She noted that 11(h) only applies to criminal matters and so both charges must be criminal in nature to invoke the double-jeopardy defence. She proposed a two-part test to determine whether a proceeding is in relation to a criminal matter and therefore invoking Section 11(h). First, it must be determined whether the matter is of a "public nature, intended to promote public order and welfare within a public sphere of activity". Second, it must be determined whether the matter involves "the imposition of true penal consequences". We all thought that he should be sentenced with both charges.
We also think that the charges didn't overlap each other.
We think that this defense should not have been used in this case.