R. v. Van Rassel

At all times relevant to this Indictment, defendant MICHAEL ADRIAN VAN RASSEL was a constable in the Royal Canadian Mounted Police in Roberval, Quebec, Canada.

At all times relevant to this Indictment, the Royal Canadian Mounted Police were assisting the United States Department of Justice, Drug Enforcement Administration, in an investigation being conducted in the Southern District of Florida by following investigative leads in Canada.

At all times relevant to this Indictment, defendant MICHAEL ADRIAN VAN RASSEL received confidential Drug Enforcement Administration investigative reports in Roberval, Canada in his official capacity in connection with said investigation.

1. On or about May 1, 1985, at Dade County, in the Southern District of Florida, and elsewhere, the defendant, MICHAEL ADRIAN VAN RASSEL, knowingly and willfully did travel in interstate and foreign commerce, from Montréal, Canada, to Miami, Florida with intent to promote and carry on and facilitate the promotion and carrying on of an unlawful activity, that is, the solicitation and acceptance of a bribe, in violation of Title 18, United States Code, Section 201(c), and thereafter performed and attempted to perform acts to promote and carry on and facilitate the promotion and carrying on of said unlawful activity, by seeking and obtaining payment for the unauthorized disclosure of confidential investigative information of the United States Department of Justice, Drug Enforcement Administration; in violation of Title 18, United States Code, Section 1952(a)(3).

2. On or about May 5, 1985, at Dade County, in the Southern District of Florida, the defendant, MICHAEL ADRIAN VAN RASSEL, knowingly, willfully and without authority did convey a record and thing of value of the United States, which value exceeded $100, that is, confidential law enforcement information in an investigative report of the United States Department of Justice, Drug Enforcement Administration; in violation of Title 18, United States Code, Section 641.

3. Between on or about May 3, 1985 and on or about May 9, 1985, at Dade County in the Southern District of Florida, the defendant, MICHAEL ADRIAN VAN RASSEL, being a public official, acting for and on behalf of the . . . Drug Enforcement Administration, in an official function, that is, as a constable in the Royal Canadian Mounted Police assisting the Drug Enforcement Administration in an investigation being conducted under and by the authority of the Drug Enforcement Administration knowingly, willfully and corruptly, directly and indirectly, did ask, demand, exact, solicit, seek, accept, receive and agree to receive a thing of value, that is, money, for himself, in return for being influenced in the performance of official acts and being induced to do acts in violation of his official duty, in that the defendant, MICHAEL ADRIAN VAN RASSEL, accepted a $2,000 cash payment and did agree to receive an additional $20,000 cash payment for the unauthorized disclosure of confidential investigative reports and information of the United States Department of Justice, Drug Enforcement Administration; in violation of Title 18, United States Code, Section 201(c). [Emphasis added.]

Van Rassel was subsequently charged in Canada with breach of trust. The charges read as follows:

[TRANSLATION]

1.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22, 1985 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit: by unlawfully converting to his personal use confidential information contained in two reports and a telex from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO with the intent to derive a profit therefrom, thereby committing an indictable offence under section 111 of the Criminal Code .

2.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22, 1985 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit: by unlawfully converting to his personal use copies, photocopies or reproductions of two reports and a telex containing confidential information from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO with the intent to derive a profit therefrom, thereby committing an indictable offence under section 111 of the Criminal Code .

3.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit: by unlawfully converting to his personal use confidential information contained in two reports and a telex from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO, thereby committing an indictable offence under section 111 of the Criminal Code .

4.At Roberval, district of Roberval, Michael Adrian VAN RASSEL, between February 22, 1985 and May 3, 1985, being an official, namely an officer of the Royal Canadian Mounted Police, did commit a breach of trust in connection with the duties of his office, to wit: by unlawfully converting to his personal use copies, photocopies or reproductions of two reports and a telex containing confidential information from the United States DRUG ENFORCEMENT ADMINISTRATION in connection with an investigation concerning Anthony ACCETTURO, thereby committing an indictable offence under section 111 of the Criminal Code . [Emphasis added.]

The trial judge accepted the accused's arguments that he could not be prosecuted in Canada because he had already been acquitted in the U.S. of the same offences. The judge accordingly ordered a stay of proceedings on the Canadian charges. The trial judge relied on the rules and principles of the plea of autrefois acquit, res judicata, the rule in Kienapple v. The Queen, [1975] 1 S.C.R. 729, the maxim nemo debet bis vexari pro una et eadem causa and s. 11(h) of the Canadian Charter of Rights and Freedoms .

The Quebec Court of Appeal unanimously allowed the Crown's appeal, rejecting the plea of autrefois acquit, but it did not rule on the other principles argued by the accused: [l988] R.J.Q 112, 11 Q.A.C. 151. In the Court of Appeal's view, the Canadian charges differed from the U.S. charges, especially in that the Canadian charges were based on a breach of trust toward Canada: hence the appeal to the Supreme Court of Canada.

The accused argued that the Court of Appeal erred in considering only the question of autrefois acquit and in holding that the American and Canadian charges were different in composition.

Points in Issue

1.Do the principles relating to the concept of double jeopardy apply between two nations?

2.If the answer to the first question is yes, does applying the principles of double jeopardy lead to the conclusion that the trial judge was right in ordering a stay of proceedings against the accused?

Discussion

1.Do the Principles Relating to the Concept of Double Jeopardy Apply Between Two Nations?

The common law authorities have accepted the proposition that the concept of double jeopardy may apply between two nations: Halsbury's Laws of England (4th ed. 1976), vol. 2, para. 88; R. v. Thomas, [1985] Q.B. 604 (C.A.) In this regard, Martin J.A. of the Ontario Court of Appeal wrote in R. v. Stratton (1978), 3 C.R. (3d) 289, at p. 298 (obiter), that the plea of autrefois acquit applies to foreign convictions. In his view, s. 535(5) (a) of the Criminal Code refers to an acquittal or to a conviction, including a conviction or acquittal in another country. In Libman v. The Queen, [1985] 2 S.C.R. 178, at p. 212, La Forest J., after ruling that each of the countries had a concomitant jurisdiction to try the offenders, said the following:

I am also aware that the view I have taken leaves open the possibility that a person could be prosecuted for the same offence in more than one country, but any injustice that might result from this eventuality could be avoided by resort to the pleas of autrefois acquit and autrefois convict, which have been applied to persons tried in other countries; [Emphasis added.]

Additionally, the American courts have held that the double jeopardy rule does not preclude two prosecutions for the same offence, one for a breach of federal law and the other for a breach of State law, noting that applying the double jeopardy principle in such circumstances could adversely affect the sovereignty of each government: Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illinois, 359 U.S. 121 (1959). The problem does not arise in this form in Canada, in view of the federal Parliament's supreme powers. Still, it can be argued by analogy that a rule which prohibits the Canadian government from prosecuting someone because of an earlier conviction or acquittal in another country adversely affects Canadian sovereignty.

In view of the conclusion I have arrived at on the second question, it is not necessary to decide in this case which of these two positions should prevail.

2.If the Answer to the First Question is Yes, Does Applying the Principles of Double Jeopardy Lead to the Conclusion That the Trial Judge Was Right in Ordering a Stay of Proceedings Against the Accused?

Before answering this question, an answer must first be given to the following question: did the Court of Appeal err in considering only the defence of autrefois acquit, without dealing with the other principles relied on by the accused, namely res judicata, the rule in Kienapple, the Latin maxim nemo debet bis vexari pro una et eadem causa and s. 11(h) of the Charter ?

I would answer this question in the affirmative. The double jeopardy concept expressed in the Latin maxim cited is a principle of general application which is expressed in the form of more specific rules, such as the plea of autrefois acquit, issue estoppel and the rule stated in Kienapple. The term res judicata, likewise, has sometimes been used in a broad sense to comprise all of these various principles, though since Laskin J. (as he then was) expressed his preference for the term in Kienapple, at p. 748, to describe the principle in that case it has often been used as a term of art. The case law shows that these principles differ in the way they are applied, despite their common origin. The application of s. 11(h) of the Charter must be determined by considering the wording of this provision. For these reasons, each of the defences put forward by the accused must be considered separately.

(a) Autrefois acquit

The defence of autrefois acquit is codified in the Criminal Code . The relevant sections read as follows:

534. (1) An accused who is called upon to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.

535. (1) An accused may plead the special pleas of

(a) autrefois acquit,

(b) autrefois convict, and

(c) pardon.

. . .

(5) Where an accused pleads autrefois acquit or autrefois convict it is sufficient if he

(a) states that he has been lawfully acquitted, convicted or discharged under subsection 662.1(1), as the case may be, of the offence charged in the count to which the plea relates;

537. (1) Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears

(a) that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and

(b) that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted of all the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded,

the judge shall give judgment discharging the accused in respect of that count. [Emphasis added.]

To make out the defence of autrefois acquit, the accused must show that the two charges laid against him are the same. In particular, he must prove that the following two conditions have been 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.

It is sometimes difficult to apply the principle of autrefois acquit to charges arising in criminal law systems completely different from our own. While the laws of different countries are rarely the same, it must be recognized that the plea of autrefois acquit is based on the principle of justice and fairness and that the Criminal Code does not require that the charges be absolutely identical. Despite the technical form of the relevant sections of the Criminal Code , the substantive point is a simple one: could the accused have been convicted at the first trial of the offence with which he is now charged? If the differences between the charges at the first and second trials are such that it must be concluded that the charges are different in nature, the plea of autrefois acquit is not appropriate. On the other hand, the plea will apply if, despite the differences between the earlier and the present charges, the offences are the same. For example, the presence under foreign law of a defence which does not exist under domestic law will not prevent the principle of autrefois acquit from applying: R. v. Aughet (1918), 118 L.T. 658 (C.A.)

The elements of the Canadian charges are as follows:

1. At Roberval (in the province of Quebec), between February 22 and May 3, the accused (counts 1, 2, 3 and 4),

2. Being a Canadian official (counts 1, 2, 3 and 4),

3. Committed a breach of trust in connection with his duties as a Canadian official (counts 1, 2, 3 and 4),

That is to say, converted to his personal use (confidential information contained in two reports and a telex (counts 1 and 3), copies, photocopies or reproductions of two reports and a telex containing confidential information (counts 2 and 4)) from the Drug Enforcement Administration,

With the intent to derive a profit therefrom (counts 1 and 2).