This section of the Charter is most often relied on in prison matters where the issue of double jeopardy arises. Section 11(h) of the Charter states that:

11. Any person charged with an offence has the right...

(h) 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.

    The Supreme Court of Canada has been cautious in interpreting the scope of this section. In prison related matters the leading case on double jeopardy is R v Shubley (1990) 52 CCC (3d) 481 (SCC). There the Supreme Court of Canada in a three-to-two decision (Cory J and Wilson J dissenting), ruled that s11(h) of the Charter does not bar Criminal Code proceedings against an inmate who has already been convicted in disciplinary proceedings in an Ontario provincial prison.

    Applying the test set out by Wilson J in R v Wigglesworth (1987) 37 CCC (3d) 385 (SCC), Mclachlin J said that a prosecution is barred by s11(h) if the proceedings are by their very nature, criminal proceedings, or if the punishment invoked involves the imposition of true penal consequences.

    It was held that a prison disciplinary proceeding is not by its very nature criminal because:

The appellant was not being called to account to society for a crime violating the public interest in the preliminary proceedings. Rather, he was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules.

    McLachlin J also said that prison disciplinary proceedings do not involve true penal consequences. The proceedings involved neither fines nor imprisonment and the:

...forfeiture of remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependent on good behaviour…

I conclude that the sanctions conferred on the superintendent for prison misconduct do not constitute "true penal consequences" within the Wigglesworth test. Confined as they are to the manner in which the inmate serves his time, and involving neither punitive fines nor a sentence of imprisonment, they appear to be entirely commensurate with the goal of fostering internal prison discipline and are not of a magnitude or consequence that would be expected for redressing wrongs done to society at large.

     The majority did not refer to the significance of "prisons within prisons" following the Martineau v Matsqui Institution (No.2) (1979) 50 CCC (2d) 353 (SCC), line of cases, nor to the Court's earlier decision in Solosky v The Queen (1979) 50 CCC (2d) 495 (SCC), which recognized that inmates retain those residual rights not expressly, or by necessary implication, taken away by legislation. However, Cory J writing for the minority started out by recognizing these earlier decisions of the Court. Mr. Justice Cory took the view that prison disciplinary proceedings do involve the imposition of true penal consequences. Referring to "prisons within prisons" Mr. Justice Cory held that solitary confinement is an additional violation of the residual liberties an inmate retains while in prison, and:

...because of the tremendous psychological impact of long periods of solitary confinement, it would be unacceptable in our society to condemn a person to close or solitary confinement for the entire period of a significant term of imprisonment I would conclude, therefore, that solitary confinement must be treated as a distinct form of punishment and that its imposition within a prison constitutes a true penal consequence.

    The dissenting members of the court also said that the loss of earned remission, or the ability to earn remission, is a true penal consequence. Viewed from the inmate's perspective, any shortening of his confinement through earned remission, has the same effect as a reduction in his sentence. Cory J said that if disciplinary measures: "...are to include a loss of earned remission or the ability to earn it, then the disciplinary punishment has penal consequences as that term is defined in Wigglesworth."

    One month after the Supreme Court of Canada handed down Shubley the Court pronounced judgment in another double jeopardy case. In Van Rassel v The Queen (1990) 53 CCC (3d) 353 (SCC) an RCMP officer was charged in the United States with a number of offences arising out of the disclosure of confidential information, and was ultimately acquitted. The accused was then charged in Canada with breach of trust based on the same transaction that led to the U.S. charges. To the Canadian charge he entered a plea of autrefois acquit.

    McLachlin J, this time writing for a seven member court, accepted that there is common law authority for the proposition that double jeopardy may apply to charges arising out of two nations. However, to make out the defence of autrefois acquit two conditions must be met:

(1) the matter is the same, in whole or in part, and

(2) the new count must be the same as at the first trial, or be implicitly included in that of the first trial, either in law or on account of the evidence presented if it had been legally possible at that time to make the necessary amendments.

     The court concluded that the plea of autrefois acquit did not apply because the Canadian charges dealt with Canadian events, and were based on a breach of trust by a Canadian official in relation to the people of Canada.

     Similarly, following R v Wigglesworth the court said that s11(h) of the Charter could be of no assistance to the accused as the two offences he was charged with were not the same. Though both charges were criminal in nature and arose out of the same incident, the Canadian charge alleged wrongdoing by a Canadian official with a special duty to the Canadian public, whereas the American charge alleged wrongdoing by a person temporarily subject to American law.

    At issue in Wigglesworth was whether an RCMP officer tried and convicted in RCMP service court, could later be tried on the same facts for common assault. Persons convicted under the RCMP Act were subject to imprisonment for one year and a fine.

    Wilson J said that the central issue to be determined by the court was whether a "major service offence" constitutes an "offence" within the meaning of s11 of the Charter, and if so whether criminal charges would violate the appellant's right under s11(h). After recalling that a purposive approach should be taken when interpreting the Charter (R v Big M Drug Mart Ltd), the court reviewed earlier cases involving s11(h) and noted the presence of a so-called "disciplinary exception" to the application of s11. Thus, in R v Mingo (1982) 2 CCC (3d) 23 (BCSC), Toy J ruled that s11(h) does not apply to a criminal prosecution for conduct which had been the subject of earlier disciplinary proceedings against an inmate.

    Similar results were reached in Yeomans v Gaw (1985) 22 CCC (3d) 311 (FCA) and Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution (1983) 8 CCC (3d) 557 (FCTD); subsequently reversed but in reliance on s7 of the Charter at 19 CCC (3d) 195 (FCA); contra Re Russell and Radley (1984) 11 CCC (3d) 289 (FCTD); Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984) 15 CCC (3d) 223 (BCSC); and Knockaert v Commissioner of Corrections (1986) 25 CCC (3d) 373 (FCTD); subsequently upheld 32 CCC (3d) 288 (FCA). The conclusion that s11 does not apply to disciplinary proceedings has also been arrived at in cases involving professional disciplinary statutes: ie, Re James and Law Society of BC (1982) 143 DLR (3d) 379 (BCSC); Re Rosenbaum v Law Society of Manitoba (1983) 6 CCC (3d) 472 (Man QB); Belhumeur v Discipline Committee of Quebec Bar Ass'n (1983) 34 CR (3d) 279 (Que SC); Re Law Society of Manitoba and Savino (1983) 1 DLR (4th) 285 (Man CA); Re Fang and College of Physicians & Surgeons of Alberta (1985) 25 DLR (4th) 632 (Alta CA).

    The above authorities adopted a narrower interpretation of s11 from that developed in Re Nash and The Queen (1982) 70 CCC (2d) 490 (Nfld Prov Ct); Re Lazarenko and Law Society of Alberta (1983) 4 DLR (4th) 389 (Alta QB); and R v B & W Agricultural Services Ltd (1982) 3 CRR 354 (BC Prov Ct).

    Wilson J preferred the narrower interpretation of s11 favoured by the majority of the authorities. She held that:

The rights guaranteed by s11 of the Charter are available to personsprosecuted by the state for public offences involving punitive sanction, ie, criminal, quasi-criminal and regulatory offences, either federally or provincially enacted.

    Though some authorities have held that the reference in s11 to an "offence" as opposed to a "criminal offence", as contained in s2(f) of the Canadian Bill of Rights, was intended to give s11 a broader application than to mere "criminal offences", Wilson J rejected this view in Wigglesworth.

    The court adopted the conclusion of Toy J in R v Mingo

In my respectful view, the authors of the new Charter, when they employed the unqualified word "offence" as opposed to "criminal offence", were doing nothing more than providing for the equal protection of Canadian citizens from breaches of their rights under provincial as well as federal laws in so far as public as opposed to private or domestic prohibitions were concerned.

    Thus the Wigglesworth court preferred to restrict s11 to the most serious offences, i.e., criminal and penal matters, and to leave other "offences" subject to the more flexible criteria of fundamental justice in s7.

    Wilson J said that:

    In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is a kind of matter which falls within s11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited sphere of activity….

    However, persons charged with private, domestic, or disciplinary matters may be able to rely on s11 if they involve the imposition of true penal consequences. Wilson J defined this as: "...imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity" (p402).

    The court held that s11 applied to the proceedings Wigglesworth had faced in RCMP Service Court. But, he was not entitled to have the criminal charges stayed as there were two distinct delicts, or matters, which would sustain separate convictions. Madame Justice Wilson said:

The "offences" are quite different. One is an internal disciplinary matter. The accused has been found guilty of a major service offence and has, therefore, accounted to his profession. The other offence is the criminal offence of assault. The accused must now account to society at large for his conduct. He cannot complain, as a member of a special group of individuals subject to private internal discipline, that he ought not to account to society for this wrongdoing.

    Wilson J was aware that Wigglesworth was subject to one year's imprisonment under the Royal Canadian Mounted Police Act, nonetheless she categorized the service court charge as an "internal disciplinary matter".

    It is clear that the Supreme Court of Canada has limited the application of s11(h) of the Charter to a narrow range of offences. In Shubley Cory J cited with approval Professor Stuart's comments on the Saskatchewan Court of Appeal's decision in Wigglesworth, that s11(h) should be given a broader application:

Section 11(h) provides protection only against double punishment. It might well be that some job-related disciplinary measures such as loss of work privileges, and even loss of qualification or job, should escape the net of s11(h). It would be strange if the imposition of such disciplinary measures could in effect exempt the accused from standing trial in a criminal court. Equally, a criminal prosecution should not insulate an accused from professional discipline. However, other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s11(h).

    Such an interpretation was implemented in Peltari v The Director of the Lower Mainland Regional Correctional Centre et al, where Gibbs, J held that the word "offence" in s11(h) means "conduct prohibited by law on pain or punishment". In Peltari an inmate was acquitted of being unlawfully at large under the Criminal Code, but later was convicted of being unlawfully at large under the B.C. Correctional Centre Rules and Regulations. The court said that the test for whether a person has been subjected to double jeopardy contrary to s11(h) is: "are the offences identical in that they contain the same elements and constitute one and the same offence arising out of the same set of circumstances?" Gibbs J concluded that the offences were identical and quashed the subsequent disciplinary court conviction.

    In light of Shubley and Van Rassef it would appear that Peltari is no longer good law. An issue that was left unresolved by Shubley is whether s7 of the Charter can be relied on by prisoners facing charges in criminal court and in disciplinary court. Madame Justice Wilson in Wigglesworth expressed the view that s11 should apply to only the most serious offences, and other "offences" should be considered under the more flexible criteria of s7. However, Shubley makes no reference to s7.

    Section 11 (h) arguments have been rejected in several other contexts. In a 15-year review under s745 of the Code the court said that s11 applies only to persons "charged with an offence". A s745 review is commenced only after the inmate has served 15 years in prison, therefore s11 does not apply. The court also held that s11(d) of the Charter applies only to proceedings where the guilt or innocence of a person is to be determined.

    In Belliveau v The Queen, the New Brunswick Court of Appeal said that charging a person criminally after having revoked his mandatory supervision because of the new offences, does not violate s11(h). Nor is there a violation of s11(h) when an inmate is punished in disciplinary court and then is subjected to a loss of earned remission, private family visits, or temporary absence passes.

    Legislation permitting appeals by way of trial de novo is, however, inconsistent with s11(h). The Supreme Court of Canada in Corporation Professionnelle des Medecins du Quebec v Thibault (1988) 42 CCC (3d) 1, held that a provision which gives a prosecutor a second opportunity to try a case, even if the trial judgment was rendered according to law, is precisely the type of abuse that s11 (h) seeks to prevent.

    Several of the subsections in s11 of the Charter, other than ss11(h), were considered in Re Russell and Radley. The Federal Court held that prisoners retain the rights expressed in subsections (a), (b), (c), (g), (h) and (i) of s11, but ss(e) and (f) are of no application to inmates. Subsection (d) does have application, however, infringements of that subsection may be saved by s1 of the Charter as reasonable limits on prisoners' rights so long as they are prescribed by law and demonstrably justifiable. So that, for example, a prisoner appearing in disciplinary court does not have a right to a "public hearing" because the opening of such proceedings to the general public would jeopardize the security of institutions, and the treatment and discipline of prisoners.

    Subsection 11(b) was argued in R v Cardinal [1985] 6 WWR 62 (Alta CA), ,where the police had delayed executing warrants against the accused for 14 months until he was released on parole. The court found this process to be contrary to the purposes of parole and imprisonment, and ruled that there had been unreasonable delay contrary to s11(b). The charges were quashed.

    Judicial consideration was given to s11(i) in Re Mitchell and R, where a habitual criminal sought his release on habeas corpus with certiorari in aid, and pursuant to s24(1) of the Charter. The court held that s11(i) only applied to benefit the offender if the lesser penalty came into force before sentencing.

    For a further discussion of the Supreme Court of Canada in Shubley see "Solitary Confinement, Remission and Prison Discipline" by Allan Manson in 75 CR (3d) 356.