Section 11(h) of the Charter of Rights and Freedoms guarantees everyone 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. This section protects individuals from facing double jeopardy.
What is the Right not to be Tried for the Same Offence if Acquitted or Convicted?
Section 11(h) of the Charter guarantees everyone the right, if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished, not to be tried or punished for the offence again. This is often known as protection against double jeopardy. The right not to be placed in jeopardy for the same offence twice is a fundamental principle of our justice system. It is not only codified in the Charter but can also be found in the Criminal Code and in common law.
For an individual to benefit from the protection of section 11(h), they must be charged with two offences that are the same. To be considered the same, the two offences must have the same elements and must arise out of the same incident. This does not mean an individual cannot be convicted of two offences that have some of the same elements.
Person A is arrested and charged with impaired driving under section 320.14(1) of the Criminal Code as well as over .80 under section 320.14(1)(b). Person A may be convicted of both offences because they are not considered the same for the purposes of section 11(h). While the offences contain many of the same elements and were born out of the same incident, they have at least one element that is different enough not to garner the protection of section 11(h).
The offence of impaired driving requires that the accused’s ability to operate their vehicle was impaired by drugs and/or alcohol. Over .80 on the other hand, requires that the accused’s blood alcohol level be higher than 80 mg of alcohol in 100 mL of blood. These two elements are separate and distinct from one another.
When is this Right Triggered?
The right not to be tried for the same offence twice is triggered when an attempt is made to try an accused a second time for an offence that they have already been tried for. The right is not in effect until it comes time for the court to direct the accused to stand trial.
R. v. Whaling,  1 SCR 392
In the case of R. v. Whaling, the Supreme Court of Canada discussed the scope of the 11(h) Charter protection. The Court indicated that the plain reading of the section indicates that people have the right not to be tried or punished for the same offence twice. These rights are separate and distinct; the right not to be tried twice and the right not to be punished again. This means that where there is an attempt to retroactively increase the punishment after the matter has been finally resolved, section 11(h) will be triggered.
R. v. Morgentaler,  1 SCR 30
In the case of R. v. Morgentaler, the Supreme Court addressed the issue of the meaning behind “finally acquitted” and “finally found guilty and punished”. The Court indicated that the plain reading of the word “finally” must logically be interpreted to mean after all appeals have been exhausted.