R. v. Loyer et al., [1978] 2 SCR 631

Supreme Court of Canada

R. v. Loyer et al., [1978] 2 S.C.R. 631

Date: 1978-05-01

Her Majesty The Queen Appellant;

and

André Loyer and Daniel Blouin Respondents.

1978: March 14; 1978: May 1.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Criminal law—Accused charged of two offences—Plea of guilty to the more serious charge—Defence of res judicata—Application of the Kienapple principle—Criminal Code, ss. 83, 302(d), 421(a).

The respondents were charged in two counts with (1) attempted armed robbery by use of a knife (which carries a penalty of up to fourteen years’ imprisonment) and (2) possession of a weapon, namely, a knife, for the purpose of committing an offence (which carries a penalty of up to five years). They pleaded guilty to the second count (for which they received a suspended sentence) and were acquitted on the first count. The trial judge found that the Crown had established culpability of attempted robbery (the first count) beyond a reasonable doubt but concluded that the accused were entitled to an acquittal on the defense claim of res judicata on the basis of Kienapple v. The Queen, [1975] 1 S.C.R. 729. On appeal by the Crown from this acquittal, the Quebec Court of Appeal took the position that the appeal raised a question of mixed law and fact, which made it unnecessary to decide on the application of the Kienapple case and affirmed the judgment of the trial judge. Hence the appeal to the Court.

Held: The appeal should be allowed.

In Kienapple this Court concluded that if there is a verdict of guilty on a first count and the same or substantially the same elements make up the offence charged in a second count, the situation invites the application of a rule against multiple convictions. However the present case is not one where the offences charged against the accused are of the same order of gravity, as they were in Kienapple. The Kienapple doctrine cannot apply to bar a conviction of the more serious offence of which (as here) the accused would otherwise, on the evidence, be found guilty simply by offering a plea of guilty to the less serious offence and having the plea accepted. In short, where an accused is charged on two or more counts with offences of different degrees of gravity, and the same delict or matter under-

[Page 632]

lies the offences in two of the counts, the accused should be acquitted on the less serious charge if he is found, or pleads, guilty to the more serious one. However, if, as was the case here, the accused pleads guilty to the less serious charge, the plea should be held in abeyance pending the trial of the more serious offence. If there is a finding of guilty on that charge, and a conviction is entered accordingly, the plea already offered on the less serious charge should be struck out and an acquittal directed.

Kienapple v. The Queen, [1975] 1 S.C.R. 729, considered; R. v. Siggins, [1960] O.R. 284; Côté v. The Queen, [1975] 1 S.C.R. 303; R. v. St-Jean (1970), 15 C.R.N.S. 194, [1971] C.A. 73; R. v. Cole, [1965] 2 Q.B. 388, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec[1] dismissing an appeal from an acquittal by a judge of the Court of the Sessions of Peace[2] on a charge of attempted armed robbery. Appeal allowed: acquittal of attempted armed robbery set aside and conviction entered; the conviction and sentence on the charge of possession of an offensive weapon set aside, and case remitted to the Court of Appeal to sentence the accused for attempted armed robbery.

Guy Lemoine, for the appellant.

Jean-Claude Hébert, for the respondents.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The issue in this Crown appeal, which is here by leave, is whether the trial judge made a proper application of the principle of Kienapple v. The Queen[3], under the facts before him.

Briefly, the two accused were charged in two counts with (1) attempted armed robbery by use of a knife, contrary to ss. 302(d) and 421(a) of the Criminal Code and (2) possession of a weapon, namely, a knife, for the purpose of committing an offence, contrary to s. 83. They pleaded not guilty to the first count and guilty to the second. The Crown proceeded against them on the first count

[Page 633]

by putting in evidence (1) admissions by the accused, (2) two knives found in their possession when arrested (put in with consent of the defence) and (3) also with consent, a motel registration card made out under a false name by one of the accused. No evidence was offered by the defence.

The accused relied on two grounds of acquittal of the charge of attempted armed robbery; first, on an absence of proof to support the charge and, second, on the rule against multiple convictions of offences arising out of the same transaction, under the principle of the Kienapple case. The trial judge found that the Crown had established culpability of attempted armed robbery beyond a reasonable doubt but concluded that the accused were entitled to an acquittal on the defence claim of res judicata on the basis of Kienapple. Subsequently, the trial judge sentenced the accused on the second charge, suspending sentence and putting them on probation for three years.

On appeal by the Crown from the acquittal on the first count, the Quebec Court of Appeal, speaking through Lajoie J.A., took the position that the Crown’s appeal did not raise a pure question of law in respect of the issue of res judicata but at the most a question of mixed law and fact, and hence it was not necessary to decide on the application of the Kienapple case. That Court came to its conclusion on the footing that factual determinations had to be made before there could be a basis for considering whether Kienapple applied, namely, whether the same acts were involved in the commission of the two offences charged. The trial judge having so determined and there being no ground for taking a different view, there was equally no reason to arrive at a different legal result.

It seems to me perfectly clear that, accepting the facts as found by the trial judge and as confirmed by the Court of Appeal, a pure question of law does arise under them, namely, whether a conviction on the charge of attempted armed robbery is foreclosed by the Kienapple case by reason

[Page 634]

of the plea of guilty to the charge of possession of an offensive weapon.

Kienapple was also a case where two counts were laid, one of rape and the other a charge of unlawful carnal knowledge of a female under age fourteen. Convictions were entered on both counts, and the issue before the Court was whether the accused, having been convicted of rape, should have been convicted, in respect of the same single act of intercourse, of the offence in the second count. The majority judgment of this Court quashed the conviction of unlawful carnal knowledge on the ground that, consent being ruled out in respect of the two charges, there was the one act of intercourse that underlay both charges, which should therefore be considered as alternative, each carrying the same maximum penalty, namely, imprisonment for life. The reasons of the majority include the following passage (at p. 744):

It is plain, of course, that Parliament has defined two offences in ss. 143 and 146(1), but there is an overlap in the sense that one embraces the other when the sexual intercourse has been with a girl under age fourteen without her consent. It is my view that in such a case, if the accused has been charged, first, with rape and, secondly, with a s. 146(1) offence, and there is a verdict of guilty of rape, the second charge falls as an alternative charge and the jury should be so directed. Correlatively, however, the jury should also be directed that if they find the accused not guilty of rape they may still find him guilty under s. 146(1) where sexual intercourse with a girl under age fourteen has been proved.

It was there pointed out that the term res judicata best expresses the theory of precluding multiple convictions for the same delict, although the matter is the basis of two separate offences; and, further, that if there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in a second count, the situation invites the application of a rule against multiple convictions.

The present case is not one where the two offences charged against the accused are of the

[Page 635]

same order of gravity. Attempted robbery carries a penalty of up to fourteen years’ imprisonment; the dangerous weapon possession offence carries a penalty of imprisonment up to five years. The Kienapple doctrine cannot apply to bar a conviction of the more serious offence of which (as here) the accused would otherwise, on the evidence, be found guilty simply by offering a plea of guilty to the less serious offence and having the plea accepted. This case presents an opportunity to set out some guidelines on proper resort to the Kienapple principle where the facts justify its invocation by the Court.

Where a trial before a judge alone or before a judge and jury proceeds on two or more counts of offences of different degrees of gravity, and the same delict or matter underlies the offences in two of the counts, so as to invite application of the rule against multiple convictions, the trial judge should direct himself or direct the jury that if he or they find the accused guilty on the more serious charge, there should be an acquittal on the less serious one; but if he or they should acquit on the more serious charge, the question of culpability on the less serious charge should be pursued and a verdict rendered on the merits.

Again, if at the trial, there is a plea of guilty to the more serious charge, and a conviction is registered, an acquittal should be entered or directed on the less serious, alternative charge. However, if, as was the case here, the accused pleads guilty to the less serious charge, the plea should be held in abeyance pending the trial on the more serious offence. If there is a finding of guilty on that charge, and a conviction is entered accordingly, the plea already offered on the less serious charge should be struck out and an acquittal directed.

Of course, there is always the central question whether the situation is an appropriate one for the application of res judicata as dealt with in Kienapple. Typical cases of its application are those where an accused is charged both with theft and with unlawful possession, such possession being

[Page 636]

that obtained by the theft: see, for example, R. v. Siggins[4]. In such cases there cannot be a conviction on the possession count if the accused has been found guilty of theft. Yet there may be cases where the possession, obtained subsequent to the theft of the same articles, will support a separate conviction of unlawful possession despite an earlier conviction of theft: see Côté v. The Queen[5]. However, even in the ordinary case of concurrent charges of theft and unlawful possession, it has been held that an accused cannot frustrate the trial on the more serious charge by pleading guilty to the less serious one: see R. v. St-Jean[6].

R. v. Cole[7], in the English Court of Criminal Appeal, in a case referred to in the St-Jean case, bears some similarity to the present case. There the accused was charged, inter alia, with armed robbery and with receiving. He pleaded guilty to receiving and the plea was recorded. The accused contended that he could not thereafter be obliged to stand trial on the more serious charge of armed robbery which involved theft of the very goods involved in the charge of receiving. I pass over various proceedings in the case, involving successive new trials, and note only that on the third trial the accused was found guilty of armed robbery. It was his position on appeal that the recording of the plea of guilty to receiving amounted to a conviction and precluded any trial on the alternative charge of armed robbery. This submission was rejected. Lord Parker, speaking for the Court said this (at pp. 394-5):

This court has been invited to lay down what is the proper practice. It is merely sufficient to say that in the ordinary case a judge should allow the plea of guilty to stand. In those circumstances a defendant will only be put in charge of the jury on the serious charge, in this case, armed robbery. If he is acquitted of the armed robbery, then he can be sentenced on the count to which he has pleaded guilty. If, on the other hand, he is convicted of the armed robbery then the proper course for the judge is to allow the count to which he has pleaded guilty to remain on the file and not to proceed to sentence him.

[Page 637]

In the case before us, the accused had been sentenced on their plea of guilty to the less serious charge, upon which a conviction was entered; and hence if, as I think is the proper course here, the acquittal on the charge of attempted armed robbery should be set aside and a conviction entered, then the conviction on the less serious charge must in turn be set aside in recognition of our rule against multiple convictions for the same delict or matter.

In the result, the appeal is allowed, the acquittal of attempted armed robbery should be set aside and a conviction should be entered on that charge in accordance with the finding of the trial judge. The conviction and sentence on the charge of possession of an offensive weapon should be set aside, and the case remitted to the Quebec Court of Appeal to sentence the accused for attempted armed robbery.

Appeal allowed.

Solicitor for the appellant: Guy Lemoine, Montreal.

Solicitors for the respondents: Robitaille, Dansereau, Trempe, Brunet, Blanchard & Bollard, Montreal.