In R. v. Kienapple 1974 CanLII14 (SCC), [1975] 1 S.C.R. 729, the Court articulated, and applied (and arguablyexpanded) the common law theory of res judicata to preclude multipleconvictions for the same criminal wrong.
Kienapple providesthat where the same transaction gives rise to two or more offences withsubstantially the same elements and an accused is found guilty of more than oneof those offences, that accused should be convicted of only the most serious ofthe offences.
R. v.Kienapple, supra, at p. 540.
The other charges should be conditionallystayed.
R. v. P.(D.W.) (1989),1989 CanLII 71 (SCC), 49 C.C.C. (3d) 417 (S.C.C.).
Justificationfor the Rule
The rule which is linked to thecourt’s power to protect against abuses of its process is designed to “protectan individual from an undue exercise by the Crown of its power to prosecute andpunish”.
Kienapple, at p.540
Whenthe Rule Operates
The Kienapple ruleprecludes multiple convictions for different offences only where there is botha factual and a legal nexus connecting the offences. The factual nexus isestablished where the charges arise out of the same transaction. Thelegal nexus exists if the offences constitute a single wrong or delict.
THEFACTUAL NEXUS INQUIRY (“the same transaction”)
The factual nexus is most obviouswhere offences arise out of the same act.A transaction can, however,include more than a single isolated act: Prince at p. 44.
The adequacy of the factual nexusbetween offences for the purposes of invoking the rule in Kienapplecannot be determined in the abstract, but must be resolved on a case-by-casebasis, having regard to factors such as
·the remoteness or proximity of the events in timeand place,
·the presence or absence of relevant interveningevents, and
·whether the accused’s actions were related to eachother by a common objective.
Ibid.
THELEGAL NEXUS INQUIRY
The legal nexus exists if theoffences constitute a single wrong or delict. (Prince)
SufficientProximity between the Offences: Is therean additional and distinguishing element?
The requirement for legal proximitywill be satisfied not by looking at common elements, but by the presence orabsence of additional distinguishing elements:
“I conclude therefore that therequirement of sufficient proximity between offences will only be satisfied ifthere is no additional and distinguishing element that goes to guilt containedin the offence for which a conviction is sought to be precluded by the Kienapple principle.”
Prince,supra, at 49.
Not every difference in theelements of the offences will preclude the Kienapple rule.
R. v. Kinnear, 2005 CanLII21092 (ON CA), at para. 35.
Instances when the Kienappleprinciple should be applied (non-exhaustive)
1) Where theoffences are of unequal gravity, Kienapple may bar a conviction for a lesseroffence, notwithstanding that there are additional elements in the greateroffence for which a conviction has been registered, provided that there are nodistinct additional elements in the lesser offence: Prince p.499.
2) Where an elementof one offence is a particularization of essentially the same element in theother offence: Prince,p.500.
[For instance, inR.v. Krug, 1985 CanLII 2 (SCC), [1985] 2 S.C.R. 255 theCourt ruled that convictions could not be upheld for both using a firearm inthe commission of an indictable offence and unlawfully pointing a firearm].
3) Where there ismore than one method, embodied in more than one offence, to prove a singlecriminal act: Prince,p.501.[I have used "criminal act" instead of"delict"].
4) Where Parliamenthas deemed a particular element to be satisfied on proof of another element: Prince p.501.
Instancesthat will defeat a claim of sufficient legal nexus
If the offences target differentsocietal interests, different victims, or prohibit different consequences, itcannot be said that the distinctions between the offences amount to nothingmore than a different way of committing the same wrong. Such distinctions will defeat a claim that thereis a sufficient legal nexus to warrant application of the Rule.
Prince at pp.51-54, Kinnear, at para. 39.
The Use of Conditional Stays
A courtshould enter a conditional stay of proceedings in respect of the convictionthat is barred by Kienapple rule.
The stay isconditional on the final disposition of the more serious charge on which theaccused has been convicted. If the accused's appeal from the convictionon that charge is dismissed or the accused does not appeal within the specifiedtimes, the conditional stay becomes permanent and is tantamount to a judgmentor verdict of acquittal for the purpose of an appeal or a plea of autrefoisacquit.
If, on theother hand, the accused's appeal from the conviction is successful, theconditional stay dissolves and the appellate courts, while allowing the appeal,can remit to the trial court the count or counts which were conditionally stayedbecause of the Kienapple principle to be dealt with as findings ofguilt.
A permanentstay should be recorded on the "Kienappled" offence to reflect thatreasons of policy and not the accused's lack of culpability account for therefusal to enter a conviction.
R. v. Provo, [1989] 2 SCR 3, 1989CanLII 71 (SCC).
