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Criminal - Kienapple Principle. R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal characterizes the Kienapple doctrine:[76] The trial judge’s finding of guilt triggered the Kienapple principle because the charged offences, sexual interference and sexual assault, have substantially the same elements and were both made out by the same factual findings: R. v. S.J.M., 2009 ONCA 244, 247 O.A.C. 178, at paras. 8-9. The trial judge was thus required to convict the appellant of one charged offence and stay the other: R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 28.
[77] The Kienapple principle gives sentencing judges the discretion concerning which charged offence to convict the accused of and which to stay if the charged offences are equally serious: Kinnear, at para. 56; R. v. Layugan, 2016 ONSC 2077, 96 M.V.R. (6th) 257, at para. 76. Judges’ discretionary decisions in criminal cases are owed deference: R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 26. Accordingly, these discretionary Kienapple determinations should be affirmed unless the sentencing judge errs in principle or exercises discretion unreasonably. Sentencing judges only lack discretion if one charged offence is more serious than the other. In those circumstances, the sentencing judge must convict the accused of the more serious offence and stay the less serious one: Kinnear, at para. 28.
[78] Kienapple uses maximum sentences as a tool to determine the seriousness of the offence because they are one of Parliament’s principal tools to do so: R. v. Loyer, 1978 CanLII 194 (SCC), [1978] 2 S.C.R. 631, at pp. 634-635; Friesen, at para. 96. Accordingly, offences are likely equally serious if they have the same maximum sentence: R. v. Patel, 2020 BCCA 92, at paras. 129-130. . R. v. D.N.
In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions.
In this quote the court comments on the operation of the Kienapple Principle, here in the event of a successful appeal:[97] A Kienapple stay is conditional on the final disposition of the charge for which there was a conviction. If an appeal in relation to that charge is allowed and a new trial is ordered, the conditional stay dissolves and the stayed count is also remitted back to the trial court. Otherwise, the stay becomes permanent: See, for example, R. v. Drury, 2020 ONCA 502, 391 C.C.C. (3d) 18, at paras. 78-81, 87. . R. v. Graham
In R. v. Graham (Ont CA, 2023) the Court of Appeal briefly summarized the Kienapple principle, limiting the 'counts' that a criminal defendant can be convicted of:(ii) Application of the Kienapple principle
[24] I agree that the convictions and sentences on counts 2 to 5 and 8 should be set aside and that those counts should be stayed, as conceded by the Crown. In accordance with Kienapple, the appellant should be convicted of the most serious offences arising out of his possession and use of a firearm, while the counts with respect to the related, lesser offences for the same criminal wrong or transaction should be stayed: R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at paras. 27, 28. The convictions and sentences on counts 2 to 5 and 8 should therefore be set aside. As the sentences imposed on counts 2 to 5 and 8 were concurrent to the other sentences, the stay does not otherwise affect the appellant’s sentence.
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