4. Statutes of Limitations and Double Jeopardy

The two principles covered in this session feature once again as fundamental limitations to the jurisdiction exercised by criminal justice systems over the accused. Whereas the two previous sessions emphasized exceptions based on the accused person’s incapacity to will harm based on one’s young age or mental disorder, this session focuses on a different set of questions of principle precluding criminal condemnation whether or not the defendant committed the offense. Statutes of limitations and double jeopardy limit the sovereign exercise of punishment where the mere exercise of prosecuting in and of itself amounts to a form of injustice: the crimes occurred so long ago that the evidence most likely will be unreliable for example, or the crimes for which the defendant is accused have already been the object of an earlier prosecution.

STATUTES OF LIMITATIONS

Statutes of limitations target the first of these two situations, providing that certain crimes may not be prosecuted after a given period of time (between five to thirty years between different jurisdictions) has lapsed. Canada is an international exception in that it does not have statutes of limitations for criminal offenses, except for summary offenses in which case the limitation is 6 months. Because most criminal justice systems do have statutes of limitation it is nonetheless worth briefly prodding the sort of obstacles these raise and why it might be a good thing for Canada not to have them. The rationale behind the rule is timeliness in action so as to preserve a certain level of quality in the evidence presented before the court. Many years after the events documents may have been lost and, importantly, the memory of the witnesses called to bar increasingly risks proving inexact. This proves to be especially important where the rights judged upon transfer from the civil domain into the criminal one – potentially leading to the deprivation of liberty and therefore requiring the demonstration of a proof beyond reasonable doubt. Offenses prosecuted a very long time after their commission pose the additional difficulty of finding reliable evidence required to launch the proceedings, a challenge requiring additional resources as a result of the victim’s putatively negligent silence. Finally, one might think that uncertainty about one's fate may weigh heavily on individuals, and that society, with the passage of time, has an interest in simply moving on and not spending resources on crimes long forgotten. Contra that argument, one may emphasize that the consequences of crime are sometimes felt by victims for decades, that there is something arbitrary about a cut-off date, and that statutes of limitations create a perverse incentive for crime.

For this reason, the graver the crime the longer the statute of limitations. In fact, when it comes to international crimes statutes of limitations are typically supposed to be off the table. Also, certain exceptions are available when the passage of time cannot be attributed to the state's negligence. In the criminal context the Nuon et al Case before the Extraordinary Chambers in the Courts of Cambodia illustrates various instances where structural shortcomings suspend the count of time. In instances of war or chaos the judicial system may be concretely unable to render justice due to the complete shutting down of the judicial branch, or due to other milder impediments preventing the rendering of justice in substance. In this respect essential functions of the trial must be ensured, such as the selection of defense attorneys, the hearing of witnesses without fear of reprisals, and the independence from external influence impeding the fair administration of justice. The Nuon et al case highlights that an exception to this principle exists where the defendant himself or herself is responsible for the impediments incurred – the image of the war lord such as Pablo Escobar comes to mind, waging war against governmental infrastructure to such an extent that the state is itself unable to function adequately in its judicial branch.

DOUBLE JEOPARDY

The idea defended by the principle of double jeopardy is that every accused person has the right not to be troubled by accusations for matters already judged upon by the court. Here the proceedings recurrently initiated against the same defendant for the same crime recall certain forms of persecution typical of a period where the criminal law could be employed by the sovereign at his own will to jail particular individuals at all costs. Beyond the tiresome consequences engendered by the multiplication of proceedings, allowing for this practice to take place may also increase chances of conviction: the crown may develop over the time a form of expertise over the case, and the accused may wear down and tire of fighting to prove innocence. A consequence of the principle of legality, the principle of double jeopardy demands that the sovereign limit his or her powers to punish to one set of proceedings leading to a finding of guilt or innocence for the same infraction. The sovereign, in other words, only has “one chance” to punish the crime in question.

The paradigmatic case is that of a defendant prosecuted for a given crime (for example armed robbery) and being prosecuted once over for the same crime (again armed robbery) some years later. Here injustice clearly comes to mind as the repetition connotes a form of harassment for matters already judged upon. In practice this principle applies in instances more subtle than this, where parts of the crime alleged have already been the object of judicial conclusions. A person acquitted or condemned for robbery cannot be subsequently charged for armed robbery as a consequence – the robbery component having already been determined. This principle is divided into many different legal concepts available as defenses under common law, many of which remain unclear in certain respects.

The first principle is “autrefois acquit, autrefois convict,” and constitutes the broader form of defence alluded to in the previous paragraph (Section 607(1)-(5) Cr. Code; R v. Van Rassel). The focus here is about the sheer overlap between the offense alleged and any other crime judged upon previously. If the crime already judged upon forms part of the new proceedings then the accused will be entitled to raise this defence. As a result the court will affirm its lack of jurisdiction, its prior judgment having consumed it. This principle is illustrated with the example provided previously on armed robbery. The metaphor that comes to mind is a recipe one of the ingredients of which has been consumed through this prior determination: the court cannot convict the accused of armed robbery if he or she was already convicted of illegally possessing a weapon – the weapon component of the “recipe” that is armed robbery having already been consumed.

The second principle is the protection against unreasonably splitting the case, and derives from common law (the leading case is R. v. B. by the Ontario Court of Appeals). Here instead of looking at the overlap (in the substance of the infraction alleged and the infraction already judged upon) the court will focus on the division or multiplication of proceedings regarding the incident at hand. The distinction is subtle. Where the crimes committed during the same incident may materially be wholly apart one from the other (for example a car theft followed by a sexual aggression in the stolen vehicle), the general hurdle of undergoing criminal proceedings commands that a single incident be generally treated as a single case. The underlying premise behind this principle is not so much the inexistence of jurisdiction over a given offense (the absence of an ingredient) as the abuse of process and its judicial manifestation (the wilful cutting and splitting of ingredients into distinct recipes). This principle bars any incentive the crown may have to multiply proceedings whenever possible so as to protect the defendant’s right to a single, unified trial when that would be justified.

The third principle is the rule against multiple convictions, and also derives from common law (the leading case is R. V. Kienapple by the Supreme Court). Here the rule closely resembles the “autrefois acquit, autrefois convict” principle in that the court will not have jurisdiction to judge over a crime the elements of which overlap with another conviction. The distinction, again, is subtle. Where the “autrefois acquit, autrefois convict” rule prevents the reoccurrence of proceedings for matters already judged upon in the past (potentially many years ago), the rule against multiple convictions applies to a single proceeding taking place in the very moment of its invocation. This rule applies where the proceedings taking place themselves lead to more than one conviction based on (substantially) the same elements. The example in R. V. Kienapple is that of a conviction for rape and for sexual intercourse with an individual under 14 years of age resulting from the same judgement. Here the court did not have jurisdiction over this second count (either rape or pedophilia) not so much because a previous conviction had already been issued for the crime in the past, but because of the close connection between both qualifications to the facts in question. The metaphor that comes to mind is the synonym, where a court cannot convict a defendant for crimes amounting to synonymous qualifications of the same facts. In this case the facts themselves are extinguished by their legal qualification.

The fourth principle is the protection against inconsistent judgements, and also derives from common law (the leading case is Gushue v. The Queen by the Supreme Court). Again this principle confusingly resembles the rule against multiple convictions by focusing on the extinction of legal qualifications to a given fact. Where the rule against multiple convictions prevents one single fact from engendering multiple convictions synonymous one to the other, the protection against inconsistent judgements extends this principle to broader applications. The rule commands that facts – all and any of them as qualified in a judgement – remain so crystallised in any further determination. The prohibition against multiple qualifications for the specific case of the condemnation itself is thus extended to all factual qualifications found in the judgement.

Further Readings:

• Law Reform Commission of Canada, Double Jeopardy, Pleas and Verdicts, Working paper 63, 1991.

  • Ochoa, Tyler T & Andrew J Wistrich. “Puzzling Purposes of Statutes of Limitation, The” (1996) 28 Pac LJ 453

  • Bernard, Diane & Damien Vandermeersch. Juger et juger encore les crimes internationaux: Étude du principe ne bis in idem (Primento, 2014).

  • Olusanya, Olaoluwa. Double jeopardy without parameters: re-characterisation in international criminal law (Intersentia nv, 2004).

  • Alogna, Forrest G. “Double Jeopardy, Acquittal Appeals, and the Law-Fact Distinction” (2000) 86 Cornell L Rev 1131.

  • Bibas, Steven A. “The Case Against Statutes of Limitations for Stolen Art” (1994) 103:8 The Yale Law Journal 2437.

  • Conway, Gerard. “Ne bis in idem in international law” (2003) 3:3 International Criminal Law Review 217.

  • Cranman, Erin M. “The dual sovereignty exception to double jeopardy: A champion of justice or a violation of a fundamental right” (2000) 14 Emory Int’l L Rev 1641.

  • DiFonzo, James Herbie. “In Praise of Statutes of Limitations in Sex Offense Cases” (2004) 41 Hous L Rev 1205.

  • Fisher, Walter T. “Double Jeopardy, Two Sovereignties and the Intruding Constitution” (1961) 28:4 The University of Chicago Law Review 591.

  • ———. “Double Jeopardy and Federalism” (1965) 50 Minn L Rev 607.

  • Garoupa, Nuno & Fernando Gomez-Pomar. “Punish once or punish twice: A theory of the use of criminal sanctions in addition to regulatory penalties” (2004) 6:2 American Law and Economics Review 410.

  • Grant, J A C. “Penal Ordinances and the Guarantee Against Double Jeopardy” (1936) 25 Geo LJ 293.

  • Harrison, Harlan R. “Federalism and Double Jeopardy: A Study in the Frustration of Human Rights” (1962) 17 U Miami L Rev 306.

  • Lederman, William R. “The concurrent operation of federal and provincial laws in Canada” (1963) 9 McGill LJ 185.

  • Listokin, Yair. “Efficient Time Bars: A New Rationale for the Existence of Statutes of Limitations in Criminal Law” (2002) 31:1 The Journal of Legal Studies 99.

  • Merkl, Taryn A. “The Federalization of Criminal Law and Double Jeopardy” (1999) 31 Colum Hum Rts L Rev 175.

  • Powell, Lindsey. “Unraveling Criminal Statutes of Limitations” (2008) 45 Am Crim L Rev 115.

  • Simon, Jonathan. “Managing the monstrous: Sex offenders and the new penology.” (1998) 4:1–2 Psychology, Public Policy, and Law 452.