R. v. Wigglesworth, [1987] 2 SCR 541

In R. v. Wigglesworth, the Appellant was a police officer who had been charged with Royal Canadian Mounted Police Act for choking and slapping a detained person, and later charted under the Criminal Code for common assault towards the same detained individual. He challenged this charge as being double jeopardy, contrary to Section 11(h) of the Charter of Rights and Freedoms.

The Supreme Court of Canada ultimately found that the criminal charge did not constitute double jeopardy in the circumstances, as follows:

“I would hold that the appellant in this case is not being tried and punished for the same offence. 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 his wrongdoing. His conduct has a double aspect as a member of the R.C.M.P. and as a member of the public at large. To borrow from the words of the Chief Justice quoted above, I am of the view that the two offences were “two different `matters’, totally separate one from the other and not alternative one to the other”. While there was only one act of assault there were two distinct delicts, causes or matters which would sustain separate convictions.”

What makes the Wigglesworth case significant is that the Supreme Court of Canada did articulate the circumstances in which Charter rights would be applicable in a non-criminal context, namely if the non-criminal process of statute they were charged under imposed a “true penal consequence”:

“This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity, he or she can never possess the rights guaranteed under s. 11. Some of these matters may well fall within s. 11, not because they are the classic kind of matters intended to fall within the section, but because they involve the imposition of true penal consequences. In my opinion, a true penal consequence which would attract the application of s. 11 is 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.”

Wigglesworth demonstrates that the Charter is not exclusive to criminal proceedings and may be used by an accused person in a a quasi-criminal context. However, it imposes a certain onus on the accused to demonstrate that the non-criminal process they are caught up in is potentially punitive in nature.

Decided by the Supreme Court of Canada on November 19, 1987
Click here for the full text of the decision

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Filed under Section 11(h): Double Jeopardy

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