There have been some high profile cases where a jury could not come to a decision. In these cases the court declares a hung jury and the defendant is not convicted. If he is out on bail, he remains on bail subject to whatever conditions might govern him as a result of his bail. This is often described as a win for the defence in the media and by politicians.
In the sense that there is no conviction. This is true. Still the case had not been determined and the normal course is to retry the accused person on the same charge. A new date is picked and the process starts over. A new jury is picked and the trial begins anew.
The defendant is left in limbo with all of the prejudice of being charged, and the extra cost of having two trials, with which to deal. It is an agonizing process to be geared up for trial and to wait in suspense for a final decision only to find out that there is not a final decision and the trial has to start over.
If a second trial does not result in a decision from the jury a third can be started, in the name of justice. The crown has the right to proceed with a case until a decision is reached.
More shocking is the erosion of the right that we have against double jeopardy. It might appear that the double jeopardy rule ought to prevent someone from being tried after a hung jury or a mistrial; but it doesn’t.
Double jeopardy doesn’t always protect us when we are actually tried and a decision is reached. Or when a person pleads guilty and serves his sentence. The U.S. is particularly dangerous in the shrinking of the rule against double jeopardy. There you can be charged criminally in each state but you can also be charged and tried by the federal government, regardless of the result of the a trial on the same state charge.
Although the right against double jeopardy is enshrined in the Charter of Rights and Freedoms it is ever more frequently ignored. This is particularly true when it comes to driving offences, like impaired driving. Here a person can be charged by two different governments for the same facts, and then be punished 3 times. You loose your license without a trial as soon as you are tried. Then if convicted the court levies a fine or jail and orders the accused not to drive. The province’s bureaucracy then steps in and levies its own suspension which may be longer than the courts.
We were just successful in obtaining an acquittal for a man charged with sexual assault, after his first trial ended with a hung jury. It should be recognized that a hung jury is a jury where at least one person believes the accused is innocent or is not sure of guilt. That ought to be reognized as reasonable doubt. Further expense and heartache is in no one’s interest and it ought to be stopped.
