Does any other federal country use a US-like system of having both a local and federal court systems, applying different rules of procedure and enabling the equivalent of double jeopardy, i.e where someone can be tried in parallel in the two systems for the same acts ?


2 Answers 2


While this isn't a simple and direct answer, it should point you in the right direction.

There are countries which like the United States have parallel national and subnational court system, including Australia, Belgium, Brazil, Canada, Ethiopia, Germany, India, Mexico, Nigeria, South Africa, Spain, and Switzerland.

Different rules of procedure for different courts within a larger overall court system for a federal jurisdiction are not that unusual even in nominally unitary court systems.

But, the division between them is on something of a continuum with fine shades of differences between them. Only a few are as close to the extreme of power sharing and a "federalist" approach as the United States, however.

Also even unitary court systems (in a geographic and federalism sense) often have parallel court systems on subject matter grounds.

For example, France has both ordinary civil courts and labor courts whose rulings could overlap, and England historically had courts of law and courts of equity with a complex relationship to each other (and also ecclesiastical courts with jurisdiction of matters now vested in the civil courts of law like inheritance of tangible personal property).

Similarly, Northern Ireland has or has had what amount to different parallel legal systems for terrorism and non-terrorism criminal offense.

Most countries also have parallel criminal and quasi-criminal legal systems for civilians and soldiers respectively. I've seen this tension between the two systems as a plot point in contemporary English police procedural dramas, for example.

On the other hand, systems with a more unitary legal system rarely are so fierce in their defense of protections against double jeopardy as the United States, and the dual sovereignty doctrine in U.S. double jeopardy law can be seen as a safety valve in practice and as applied in cases where the double jeopardy rule as interpreted under the U.S. Constitution is too strong a bar to legitimate second prosecutions.

A comparative analysis of double jeopardy concepts can be found here. It is tricky to reduce the subtly differences between the rules in different countries to a clear yes or no kind of answer.

A square answer to your question requires detailed examination of a dozen or more court systems that someone felt the need to write a book about to explain. If I can find a more specific answer I will update this one.

  • That's someting I should and probably will add to my question : I'm not talking about separating the courts system on a subjects basis - something which also applies to the US, although very rarely, for ex. the Federal Circuit whose jurisdiction I think is determined on a subject basis. But I understand the line is blurry between a subjects-separation system with overlap, and completely parallel systems like in the US. I'll think about it and maybe re-ask it as another question. Thanks ! Dec 16, 2022 at 2:11
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    I don't think Germany belongs in the list of parallel systems. The federal courts are supreme courts, organized by subject matter, while the courts of first instance are run by the Bundesländer (constituent states). This means there's no double jeopardy between these courts; they operate sequentially.
    – MSalters
    Dec 16, 2022 at 10:58
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    @MSalters There is one federal court of first instance, but only for reviewing patent decisions (the grant or nullification, but not infringements etc.).
    – xngtng
    Dec 16, 2022 at 12:16
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    Another example might be the EU courts vs. the national courts. Dec 16, 2022 at 16:29
  • "completely parallel systems like in the US." The federal courts and state courts aren't completely parallel. Some matters (bankruptcy, immigration civil and criminal, federal crimes, copyright, patent, felonies on Indian Reservations) are in the exclusive jurisdiction of the federal courts, some matters (probate, divorce, child custody, state crimes) are in the exclusive jurisdiction of the state courts, some matters (state and federal private law claims not mentioned above including e.g. trademark, breach of contract, civil rights, but no criminal matters) are concurrent jurisdiction.
    – ohwilleke
    Dec 16, 2022 at 18:31

applying different rules of procedure

Each province in Canada may have its own civil procedure, but the criminal procedure is unified on the federal level. Unless specifically provided, all civil and criminal cases are heard in courts established by provinces.

Under section 92 of the Constitution Act, 1867, the exclusive powers of the provincial legislature in Canada include the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, as well as civil procedure. These provincial courts are the primary courts of general jurisdiction in Canada over federal and provincial laws in both civil and criminal matters, with its civil procedures prescribed by each province.

The federal government, on the other hand, has responsibility for certain matters related to the administration of justice, among other areas such as banking, postal service, and the military, under sections 91 and 101 of the 1867 Constitution. Specifically, section 91 grants the federal government exclusive legislative authority over the criminal law, including criminal procedure, but not the constitution of courts of criminal jurisdiction, while section 101 allows the Parliament of Canada to establish a general court of appeal, and additional courts for the better administration of the laws of Canada (as the federal state).

Additionally, under section 96 of the same Act, the federal government appoints all judges of superior or appeal courts in Canada, even if the constitution and maintenance of the courts are a provincial responsibility.

Under s. 101, the federal Parliament has created several federal courts:

  • Federal Court and Federal Court of Appeal
  • Tax Court of Canada
  • military tribunals or courts martial

Some federal courts have exclusive jurisdictions over certain subject matter, for example,

  • the Tax Court, in the case of most disputes over federal taxation, customs and pension laws,
  • the Federal Court, in the case of, among others, judicial review over decisions made by federal officials, commissions and administrative tribunals and the review of patent decisions (but not infringement)

In other cases, the jurisdiction of the federal judiciary has concurrent jurisdiction over certain matters, for example,

  • the Federal Court can hear most civil disputes involving the federal government
  • civil courts may also try military personnel (and some offences like murder and manslaughter must be tried in provincial superior courts)

But the same proceeding arising from the same or substantially the same facts and law can only be filed in one court (lis pendens).

The Federal Court also has jurisdiction conferred to it by other federal law, for example, over determination of which provincial court should a proceeding under the Divorce Act be continued, if the same proceeding was filed the same day in two different provinces. As a last resort, it can hear all disputes arising from federal law where no provincial court can claim jurisdiction.

In the case of concurrent jurisdiction, a case may be heard in either provincial or federal courts (but one must be chosen) with different procedural rules.

enabling the equivalent of double jeopardy, i.e where someone can be tried in parallel in the two systems for the same acts ?

In criminal proceedings, as the word "criminal" is used in the Canadian context, double jeopardy is not possible. Although both provincial and federal prosecutors exist, all criminal charges are under a federal law and tried in superior courts established by provinces whose judges are appointed by the federal government. The common law protection against double jeopardy and constitutional prohibition under section 11(h) of the Charter fully apply in proceedings on a single violation of the same law.

But just like you may be charged with multiple criminal offences arising from the same incident, double jeopardy does not in general prevent you from being tried for violation of different laws.

Provinces have the power to make laws that may impose "Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province" made pursuant to an enumerated exclusive provincial power in section 92 of the 1867 Act. These provincial laws may validly co-exist (O'Grady v. Sparling) with federal criminal laws, so long that the punishment and the offence are truly related to the enforcement of valid provincial laws.

Some curious things may result from this: a person who serves a prison sentence of five years minus one day may be strictly speaking without a criminal record in the national database, because he was sentenced under Ontario's Securities Act (although there may be a police record).

At the same time, provincial laws with penal consequences, while may not be technically criminal in Canada, are subject to common law and constitutional protections. The accused must be acquitted if there is reasonable doubt and double jeopardy can still attach to these provinces.

Prosecutions under both provincial and federal laws for the same action are not necessarily impossible. This often happens in cases of serious driving offences where both federal charges under the Criminal Code (e.g. dangerous driving, not stopping after accident, drunk driving) and provincial accusations under the relevant provincial highway safety laws (e.g. careless driving, drunk driving, speeding, stunt driving) are laid. Or concurrent charges of criminal fraud and violation of a provincial securities law (unlike the U.S., securities are exclusively regulated by provinces, although provinces can delegate the regulatory power to a single national regulatory body if they so choose).

The interaction between concurrent provincial and federal charges, however, is not like the U.S.

Root constitutional differences aside, the dual sovereign doctrine has no direct application in Canada (at least for double jeopardy purpose). In fact, the same Crown prosecutor can try both federal criminal and provincial regulatory charges for the same facts before the same judge in a single proceeding (R. v. Sciascia).

I cannot find any Supreme Court cases where the exact interactions between similar federal and provincial offences are clearly outlined, in my albeit limited search. But provincial and federal offences are both included in the double jeopardy analysis (R. v. Wigglesworth).

Jurisprudence does suggest there are many factors to consider. The elements of the federal and provincial offences in question, the legislative purpose underlying the offences, the relevant penalties in consequence, the decisions or lack thereof on the part of the accused or the Crown may all be relevant.

In R. v. Van Rassel where the issue was if the Canadian court can try someone acquitted in the U.S. for a similar charge, the answer was yes. It was ruled that offences are not considered the same for double jeopardy purposes if the victims, or the nature of the duties owed, are different (e.g. the Canadian society and American society are different). I do not think it is likely that Canadian courts would necessarily make the distinction between the Canadian public and for example Ontario public, but in some cases, the nature of provincial and federal offences can be different even if they contain similar elements. For example, duty owed as a member of public under the Criminal Code vs. duty owed as a licenced driver under provincial law may be enough to make the underlying offence different.

Additionally, applying the golden rule, the court cannot, without the consent of the Crown, let accused to choose to plead guilty to a lesser included charge in order to avoid a more serious charge (R. v. Loyer et al.).

I have found several cases where the courts declined to discontinue federal or provincial proceedings even if a proceeding in the other jurisdiction is pending or finished by conviction:

  • R. v. Caine, 2006 ONCJ 206 (CanLII), https://canlii.ca/t/1nj8p (provincial DUI conviction in absentia confirmed despite conviction of federal criminal large)
  • R. c. Poulin, 2016 QCCQ 9757 (CanLII), https://canlii.ca/t/gtvkc (criminal DUI charge may proceed despite the accused had pleaded guilty for a provincial offence)
  • R. v. Rowe, 2015 CanLII 80167 (NL SC), https://canlii.ca/t/gmdjw (claims of double jeopardy dismissed in the criminal trial, finding the federal and provincial offences are distinct)

Curiously I have found many discussions in Quebec on the effects of concurrent federal and provincial charges, which may be "problematic" in some cases.

In Pronovost c. R., 2018 QCCA 2212 (CanLII), https://canlii.ca/t/hwtd6, the Quebec Court of Appeal, with very simialr fact pattern to and reaching the same conclusion as Caine, decided that driving while under influence may be punishable under both provincial statute targetting a licenced driver and the federal Criminal Code targetting the public in general. In the specific case

Nonetheless, in Directeur des poursuites criminelles et pénales c. Lecours, 2015 QCCQ 4513 (CanLII), https://canlii.ca/t/gjccq, the court allowed the stay of proceedings on the criminal charge after the accused pleaded guilty by paying the ticket for the provincial offence. The accused was charged with refusing a breath test under both provincial and federal law. The judge found that both laws serve the same purpose and have the same elements and the underlying delict is the same, absent an explicit reasoning on the part of either jurisdiction. Other Quebec cases, R. c. Lavoie, 2019 QCCQ 6723 (CanLII), https://canlii.ca/t/j3580, apparently also adopted this reasoning for the then offence of driving while disqualified.

In a case very similar to Pronovost: Directeur des poursuites criminelles et pénales c. Vincent, 2022 QCCS 583 (CanLII), https://canlii.ca/t/jmmjw, the Superior Court in Quebec confirmed the stay of criminal DUI charge after the accused pleaded guilty to the provincial charge. The court in this instance found that "there are no additional and distinguishing elements of guilt" between the federal offence and the provincial offence. The provincial offence in both Pronovost and Vicent is the one prohibiting certain classes of drivers having any alcohol at all in their blood. The federal offence involved in Pronovost was impaired driving over 80mg alcohol/100mL blood, while in Vincent it was impared driving with any amount of drug and alcohol.

Note that the Crown has appealed in Vincent and the Court of Appeal has decided to hear the appeal (decision pending in 2022), so the double jeopardy considerations may be soon further clarified for concurrent federal and provincial charges.

There may also be an abuse of process finding if the prosecutor charges different offences under different laws in a way that is contrary to public interest, for example, reserving one charge to try later for no reason other than just in case the other charge fails.

The above cases I found also only dealt with cases where multiple convictions are at issue. The rule of res judicata, issue estoppel and the constitutional protection may be more strictly applied in cases of acquittals or other findings in favour of the accused. It is extremely unlikely that an equivalent or greater offence would be allowed to be tried under another Canadian jurisdiction's law, especially considering the same facts would likely be tried in the same court.

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