Section 609 — Criminal Code: What determines identity

Where an issue on a plea of autrefois acquit or autrefois convict to a count is tried and it appears 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 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. The following provisions apply where an issue on a plea of autrefois acquit or autrefois convict is tried: where it appears that the accused might on the former trial have been convicted of an offence of which he may be convicted on the count in issue, the judge shall direct that the accused shall not be found guilty of any offence of which he might have been convicted on the former trial; and where it appears that the accused may be convicted on the count in issue of an offence of which he could not have been convicted on the former trial, the accused shall plead guilty or not guilty with respect to that offence.