|
Criminal - Kienapple Principle. R. v. Wolfe
In R. v. Wolfe (SCC, 2024) the Supreme Court of Canada allowed a criminal appeal, here where the issue was 'discretionary driving prohibitions' added onto sentencing for convictions for certain CCC offences. This case corrected statutory interpretation confusion that had arisen over the years regarding 'which' convictions this system applied to.
Here the court considers Kienapple principles in this context:(b) Rule Against Multiple Convictions
[70] The Crown’s proposed interpretation of s. 320.24(4) would permit the appellant to be sentenced to custody as a result of his convictions for criminal negligence causing death and bodily harm and sentenced to driving prohibitions as a result of having been “found guilty” of dangerous operation causing death and bodily harm. In Boily, Fairburn A.C.J.O. raised the concern that “if charged with the included offence, the [Crown’s] interpretation has the effect of creating a punishment for a crime that, through the operation of the principles in Kienapple, would necessarily attract a conditional stay because a person cannot be punished twice for the same offence” (para. 57; see also para. 58).
[71] The Kienapple principle prevents an accused from being convicted of multiple offences when there is a factual and legal nexus connecting the offences (Kienapple; R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480). There is a factual nexus where the same act grounds both charges (Prince, at pp. 492-93). A legal nexus exists where “there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle” (pp. 498-99; see also S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (3rd ed. 2022), at ¶14.33). In short, the rule precludes more than one conviction arising out of the same delict (Kienapple, at p. 748; Prince, at pp. 488-90).
[72] In situations where there have been multiple findings of guilt and Kienapple is found to apply, the offender should be convicted and sentenced on the more serious offence, and a conditional stay should be ordered on the less serious offence (Provo, at p. 16; R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at paras. 13 and 15).
[73] The rule can apply to bar multiple convictions for two charges arising out of the same delict where one charge is included in the other (see, e.g., R. v. Doliente, 1997 CanLII 341 (SCC), [1997] 2 S.C.R. 11). This could certainly be the case where an offender has been found guilty of both a criminal negligence offence and a separately charged dangerous operation offence (see, e.g., R. v. Lights, 2017 ONSC 5153, 18 M.V.R. (7th) 110, at para. 1, aff’d 2020 ONCA 102, 60 M.V.R. (7th) 47; R. v. Bhangal, 2016 ONCA 857, 100 M.V.R. (6th) 173, at para. 3; R. v. Mowlai, 2017 ONSC 4815, 15 M.V.R. (7th) 38). Whether barring multiple convictions in the case of included offences is properly described as an application of the Kienapple principle or some other similar rule that specifically pertains to included offences (see R. v. Doliente (1996), 1996 CanLII 17942 (AB CA), 108 C.C.C. (3d) 137 (Alta. C.A.), at pp. 152-54, per Harradence J.A., dissenting, rev’d [1997] 2 S.C.R. 11; R. v. K. (R.) (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 35), it is not in doubt that multiple convictions in this context are precluded.
[74] In this case, there is no suggestion that the rule from Kienapple is directly engaged as the appellant was not convicted of multiple offences arising out of the same delict. He was only convicted of the criminal negligence offences. But had there been separate counts on the indictment alleging dangerous operation, the appellant could not have been convicted of all of the counts. The trial judge would have been required to determine which counts would be stayed under the Kienapple rule. As I see it, accepting the Crown’s argument on s. 320.24(4) would nonetheless have the effect of permitting punishment for the stayed offences.
[75] I appreciate the clarification offered by Crown counsel during the oral hearing to the effect that, on the Crown’s argument, the driving prohibitions would formally attach to the criminal negligence convictions and not the implied findings of guilt on the included dangerous operation offences (transcript, at pp. 60-61). This clarification may serve to address Fairburn A.C.J.O.’s practical concern about “how [one would] reflect a punishment for a stayed offence on someone’s criminal record” (Boily, at para. 58). But s. 320.24(4) nonetheless provides for punishment — a discretionary driving prohibition — in relation to dangerous operation, not criminal negligence.
[76] In my view, the well-established rule against multiple convictions is a relevant legal principle that bears on the interpretation of s. 320.24(4). The notion that a conviction for an offence opens the door to punishments not expressly provided for that offence, but by implication based on those available for an included offence, sits in tension with the rule against multiple convictions. This is because the rule would operate to prevent punishment in relation to the included offence had it been charged separately on the indictment. . 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.
|
