Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-006-02
Last-Modified: 1997/01/23
Source: Department of Justice Canada

Footnotes
-------------

178. This brief summary of the Rodney King beating is taken
primarily from The Guide to American Law: Supplement 1992
(St. Paul, MN: West, 1992) pp. 286-289 and from the
description of the beating given by G. P. Alpert, W. C.
Smith, and D. Watters, "Law Enforcement: Implications of the
Rodney King Beating" (1992) 28 Crim. L. Bull. p. 469.

179. The Guide to American Law: Supplement 1992, supra,
footnote 1, p. 286.

180. Powell v. Superior Court (People), 283 Cal. Rptr. p.
777 (Cal. App. 2 Dist. 1991).

181. Police officers Sgt. Stacey Koon, Timothy Wind and
Theodore Briseno were acquitted on all counts. However, the
jury failed to reach a verdict on the charge that Officer
Laurence Powell had used unnecessary force under colour of
authority. For a summary of this trial, and its aftermath,
see The Guide to American Law: Supplement 1993 (St. Paul,
MN: West, 1993) pp. 291-297.

182. See, e.g., D. Margolick, "Switching Case to White
Suburb May Have Decided Outcome", The New York Times,
Friday, May 1, 1992, p. A20. For a criticism of the judge's
decision to change venue in the Rodney King case, an
examination of recent state proposals for changes to the law
in response to the King case for obtaining a change of
venue, and an argument for a judge's taking race into
account in deciding whether to make a change of venue
application, see Note, "Out of the Frying Pan or Into the
Fire? Race and Choice of Venue after Rodney King" (1993) 106
Harv. L. Rev. p. 705.

183. The details of the charges are outlined in a news
release, 92-201, dated August 5, 1992,
entitled "Four Indicted by Federal Government for Civil
Rights Law Violations in King Case", issued by the United
States Department of Justice.

184. See pp. 36-38 of this paper.

185. S, Mydans, "2 of 4 Officers Found Guilty in Los Angeles
Beating", The New York Times, Sunday, April 18, 1993, at 1,
32; S. Mydans, "Sympathetic Judge Gives Officers 2 1/2 Years
in Rodney King Beating", The New York Times, Thursday,
August 5, 1993, pp. A1, A16.

186. See S. Mydans, "Rodney King Testifies on Beating: 'I
Was Just Trying to Stay Alive"', The New York Times,
Wednesday, March 10, 1993, p. A1; S. Mydans, "Rodney King
Unsure on Beating Details", The New York  Times, Thursday,
March 11, 1993, p. A18.

187. For example, in Bartkus v. Illinois, 359 U.S. p. 121
(1959), the accused originally had been prosecuted under
federal law for robbery of a federally insured bank, but had
been acquitted. The accused was later tried for robbery
under the penal law of the State of Illinois. Although the
federal authorities and state prosecutorial authorities
cooperated with each other, the court concluded that the
state prosecution was not a sham and a cover for the federal
prosecution, and applied the dual sovereignty doctrine to
uphold the person's conviction on the state prosecution. See
also Abbate v. United States, 359 U.S. p. 187 (1959).

188. For example, the Justice Department has a "Petite
Policy", by which the federal government will not prosecute
a defendant who has been previously prosecuted in a state
court for the same conduct unless "compelling interests"
support a second prosecution. See M. A. Dawson, "Popular
Sovereignty, Double Jeopardy, and the Dual Sovereignty
Doctrine" (1992) 102 Yale L.J. pp. 293-294 for a discussion
of this policy. Dawson, p. 294, describes the state statutes
limiting the dual sovereignty doctrine as follows:

     Twenty-three states have adopted statutes limiting the
     dual sovereignty doctrine. However, the limitation
     effected by these statutes is even less complete than
     that effected by the Petite Policy. The Petite Policy
     limits federal prosecution of offenses arising out of
     the same conduct previously subject to state
     prosecutions. Thirteen states impose a similar
     limitation, limiting state prosecution of offenses
     arising out of the same conduct previously subject to
     federal prosecution. Another seven states limiting the
     dual sovereignty doctrine, however, do so by limiting
     reprosecution for the same offense_not for the same
     conduct. As in the case of federal prosecutions
     following state prosecutions, state prosecutions
     following federal prosecutions for offenses arising out
     of the same conduct are brought routinely.

189. N. A. Lewis, "A.C.L.U. Opposes Second Trial for Same
Offense", The New York Times, Monday, April 5, 1993, p. A10.
Policy # 238a of the A.C.L.U., on file with the author,
entitled "Double Jeopardy", states at p. 299b that there
should be no exception to double jeopardy principles simply
because the same offence may be prosecuted by two different
sovereigns. The policy goes on to state, at footnote 3 of p.
299b, that "there are many tools at the disposal of Congress
or federal prosecutors to prevent the states from
eviscerating the power of the federal government to
vindicate important interests, such as those embodied in the
civil rights laws. These might include preempting state
prosecutions, creating a federal removal statute for
situations where federal prosecution is deemed desirable, or
prosecuting or enhancing penalties for activities designed
to impede federal prosecution." The above article by N. A.
Lewis points out the division that occurred within the
A.C.L.U. on this policy in the wake of the Rodney King
beating. After the acquittal of the police officers involved
in the Rodney King beating on April 29, 1992, the Southern
California chapter of the A.C.L.U. urged the Justice
Department to try the officers on federal civil rights
charges. The A.C.L.U.'s strict policy opposing double
jeopardy was suspended in June, 1992 to consider the impact
of the policy on the officers' case. On April 4, 1993, in a
close vote, the national board of the A.C.L.U. enacted a
resolution opposing any exceptions to the American
Constitution's prohibition against double jeopardy. However,
all ten of the black members who were present voted to allow
for second trials on civil rights grounds after acquittal on
local charges.

190. The issue would appear to be whether or not the two
charges are different in nature. See R. v. Van Rassel,
[1990] 1 S.C.R. 225; (1990), 53 C.C.C. (3d) 353.

191. R. v. B. (1986) 29 C.C.C. (3d) 365 (Ont. C.A.).

192. Kienapple v. The Queen, [1975] I S.C.R. 729; (1974), 15
C.C.C.(2d) 524. There, the accused had been charged with
separate counts in one indictment of the then crimes of rape
and unlawful sexual intercourse with a female under 14 years
of age. At trial, the accused had been convicted of both
counts. The Supreme Court of Canada held that, although the
crime of unlawful sexual intercourse was not included in the
crime of rape, nonetheless the doctrine of _res judicata_
applied, which precluded multiple convictions for the same
delict even though the same matter was the basis of two
separate offences.

193. R. v. Prince, [1986] 2 S.C.R. 480; (1986), 30 C.C.C.
(3d) 35.

194. In Prince, ibid., the Court ruled that the rule against
multiple convictions did not preclude a subsequent
prosecution and conviction for manslaughter arising out of
the death of an infant prematurely born when the accused had
previously been tried for attempted murder of, and convicted
of causing bodily harm to, the infant's mother.
In another case, Wigglesworth v. The Queen, [1987] 2 S.C.R.
541; (1987), 37 C.C.C. (3d) 385, the Supreme Court of Canada
held that a police officer who had been found guilty of a
major service offence under the Royal Canadian Mounted
Police Act arising out of an unlawful assault upon a
prisoner could also be prosecuted and convicted of the crime
of assault without contravening the double jeopardy
guarantee of subsection 11(h) of the Charter. The majority
of the court held that the offences were quite different so
as not to attract the rule against multiple convictions. One
offence -- the major service offence -- was an internal
disciplinary matter for which the accused was accountable to
his profession, whereas the other was a crime for which the
accused was accountable to society at large. Clearly, this
rationale would not apply where two crimes are in issue.

195. For an examination of this fundarnental principle of
restraint see Law Reforrn Comrnission of Canada, Our
Criminal Law [Report 3] (Ottawa: Minister of Supply and
Services Canada, 1976).

Home ·  Site Map ·  What's New? ·  Search Nizkor