Supreme Court of Canada
Kienapple v. R., [1975] 1 S.C.R. 729
Date: 1974-02-12
John Edward Kienapple (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1973: October 15; 1974: February 12.
Present: Fauteux C.J., Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Two convictions for same act—Whether second conviction proper—Charges to be treated as alternatives—Whether unlawful sexual intercourse included offence of rape—Criminal Code, ss. 7(2), 11, 140, 143, 144, 146, 147, 535, 536, 537, 743(2).
The appellant was indicted jointly with another male person on two counts involving a thirteen year old girl, namely, rape contrary to s. 143 and unlawful carnal knowledge of a female under fourteen years of age contrary to s. 146(1) of the Criminal Code. Following the direction of the trial judge the jury brought in a verdict of guilty on both counts and the accused was sentenced to two concurrent terms of ten years. The Court of Appeal for Ontario dismissed the accused’s appeal without written or recorded reasons and leave to appeal to this Court was given on the question whether the accused, having been convicted of rape, should in respect of the same single act have also been convicted of sexual intercourse with a female under the age of fourteen, not being his wife, an issue which had not been raised in the Courts below.
Held (Fauteux C.J., Abbott, Martland and Ritchie JJ. dissenting): The appeal should be allowed.
Per Judson, Spence, Pigeon, Laskin and Dickson JJ: Although there have been cases where multiple convictions were registered, when in substance only one “crime” has been committed, refusal to interfere on appeal was justified because only one sentence was imposed. The better practice, however, is to avoid multiple convictions and in relation to potentially multiple convictions, it is important to know the verdict on the first count since if that verdict is guilty
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and the same or substantially the same elements make up the second count charged the situation invites the application of the rule against multiple convictions. While in the present case there is the superadded element of age in s. 146(1) this does not operate to distinguish unlawful carnal knowledge from rape. Age under fourteen is material where consent to the sexual intercourse is present but once that is ruled out it becomes meaningless as a distinguishing feature of the offence of rape and unlawful carnal knowledge.
Per Fauteux C.J. and Abbott, Martland and Ritchie JJ. dissenting: The appellant was not convicted twice in respect of the same offence. The cases dealing with double punishment are not relevant to the issue of law which is before us and which is the legal power to convict an accused of two separate offences in respect of the same act.
APPEAL from a judgment of the Court of Appeal for Ontario, dismissing, without written reasons, an appeal from the appellant’s convictions for (1) rape contrary to s. 143 of the Criminal Code and (2) unlawful carnal knowledge of a female under fourteen years of age. Appeal allowed, conviction for unlawful carnal knowledge quashed, Fauteux C.J. and Abbott, Martland and Ritchie JJ. dissenting.
[Hudson v. Lee (1589), 4 Co. Rep. 43a, 76 E.R. 989; Cox and Paton v. The Queen, [1963] S.C.R. 500; The Queen v. Miles (1890), 24 Q.B.D. 423; R. v. Thomas, [1950] 1 K.B. 26; Wemyss v. Hopkins (1875), L.R. 10 Q.B. 378; R. v. Quon, [1948] S.C.R. 508; Connelly v. Director of Public Prosecutions, [1964] A.C. 1254; R. v. Morris (1867), L.R. 1 C.C.R. 90; R. .v. Lockett, [1914] 2 K.B. 720; Kelly v. The King (1916), 54 S.C.R. 220; R. v. Siggins, [1960] O.R. 284; R. v. Hendrick and Smith (1931), 23 Cr. App. R. 1; R. v. Hodgson (1973), 57 Cr. App. R. 502; R. v. Marcus and Richmond, [1931] O.R. 164 referred to.]
J.D. Morton, Q.C., for the appellant.
D.A. McKenzie, for the respondent.
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THE CHIEF JUSTICE (dissenting)—For the reasons given by Mr. Justice Ritchie and the comments relevant to this case which I made in Doré v. The Attorney General of Canada I would dismiss the appeal.
MARTLAND J. (dissenting)—I agree with the reasons of my brother Ritchie. I would like to add the following comment. The point which is in issue in the present appeal was never raised at trial, or before the Court of Appeal.
Presumably, when leave to appeal to this Court was granted it was felt that the outcome of the appeal, if successful, would have some practical favourable consequences for the appellant. However, in the course of his argument, counsel for the appellant conceded that if the appeal succeeded the appellant would not be entitled to obtain a new trial in respect of both the charges against him. He was still subject to the sentence on the charge of rape, which sentence was exactly the same as, and concurrent with, the sentence on the other charge.
In the result, therefore, the appeal to this Court constituted an academic exercise, the only result of which, if successful, will be to prevent the addition to the appellant’s already lengthy criminal record of a conviction for the crime of sexual intercourse with a female under the age of fourteen, not being his wife, which crime it is clear that he committed.
The Chief Justice and Abbott and Martland JJ. concurred with the judgment delivered by
RITCHIE J. (dissenting)—I have had the advantage of reading the reasons for judgment of my brother Laskin in which he has recounted the circumstances giving rise to this appeal.
The appeal came on for hearing pursuant to an order of this Court granting leave to appeal in accordance with the provisions of s. 618(1)(b) of the Criminal Code. The jurisdiction conferred by that section is, of course, confined to ques-
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tions of law in the strict sense and the order which was granted in the present case reads as follows:
IT IS ORDERED that leave to appeal be and the same is hereby granted limited to the question whether the accused, having been convicted of rape, should in respect of the same single act have also been convicted of sexual intercourse with a female under the age of fourteen, not being his wife.
(The italics are my own).
In my understanding it has been the general practice of this Court when hearing an appeal pursuant to an order granting leave to confine itself exclusively to the question or questions posed in such an order, and even if the order here in question had not contained express words of limitation, I think it would be contrary to this practice to entertain the appeal on any ground other than the one which is expressly specified.
It is, therefore, important in my view to determine at the outset the exact limits of the question with which this appeal is concerned.
It will at once be apparent that the issue before us is confined to the validity of the second conviction. No question is raised as to the propriety of the judge’s action in sentencing the appellant as he did on both counts if the second conviction is valid, and indeed, while that was a matter over which the Court of Appeal had jurisdiction, this Court is not clothed with the same authority.
The appellant was charged, together with one Wayne Ronald Constable, that he raped one Jacqueline Mary Chafe contrary to the Criminal Code, and second, that he had sexual intercourse with the same girl, she being a female under the age of fourteen years who was not his wife, contrary to the Criminal Code. The two accused were arraigned separately on each of the two charges and the appellant pleaded “not guilty” to both. The two offences with which the appellant was charged are defined in the
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following terms in ss. 143 and 146(1) of the Criminal Code as amended by 1972 (Can.), c. 13,s.70:
143. A male person commits rape when he has sexual intercourse with a female person who is not his wife,
(a) without her consent, or
(b) with her consent if the consent
(i) is extorted by threats or fear of bodily harm,
(ii) is obtained by personating her husband, or
(iii) is obtained by false and fraudulent representations as to the nature and quality of the act.
146. (1) Every male person who has sexual intercourse with a female person who
(a) is not his wife, and
(b) is under the age of fourteen years,
whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.
Every one who commits the indictable offence of rape is also liable to imprisonment for life.
I think it of first importance to recognize that the offences created by ss. 143 and 146(1) are separate and distinct offences and it appears to be common ground that the latter offence is not included in the former. The fundamental difference between the two offences is that a conviction under s. 146(1) can only be sustained if the victim is under fourteen years of age, whereas the age of the victim forms no part of the offence described in s. 143. The provisions of s. 140 also make it clear that consent is no defence to a charge under s. 146(1), whereas, of course, lack of consent is an essential ingredient of rape.
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It was contended on behalf of the appellant that as a conviction for rape negatives consent, it also precludes a conviction under s. 146(1) in respect of the same act because where a lack of consent has been proved, age ceases to be a distinguishing factor between the two offences. This reasoning appears to me to be predicated on the assumption that the only difference between the two offences is that consent is excluded as a defence to s. 146(1) by the provisions of s. 140 and to overlook the fact that an accused charged under s. 146(1) would be equally guilty under that section whether his victim had consented or not provided that she was under 14 years of age and not his wife. Consent or lack of consent form no part of the offence described in s. 146(1), but it contains an ingredient which is not included in a conviction for rape, namely, the age of the child victim.
The situation in the present case is that the act for which the appellant was convicted of rape also constituted the additional offence of having sexual intercourse with a female person under the age of fourteen years who was not his wife. The purpose and effect of s. 146(1) is in my view to protect female children under the age of fourteen years from sexual advances leading to intercourse by male persons over that age, (see s. 147) and I cannot subscribe to a result which relieves an assailant from the consequences of violating a child on the ground that his act also constitutes the crime of rape.
Under these circumstances I am unable to see how it can be said that the appellant did not commit both offences.
It is contended, however, that, because it is an accepted principle of our law that no one shall be punished twice for the same offence, it must follow, according to the same principle, that nobody can be convicted more than once in
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respect of the same act. The chief authority to which we were referred in support of this contention was the unanimous judgment of this Court in Cox and Paton v. The Queen, where the accused had been convicted on two counts, each of which was found to be referrable to the same conspiracy and Cartwright J. (as he then was) held that both convictions could not stand on the ground that “It is the same conspiracy which is alleged in both counts and it would be contrary to the law that the accused should be punished more than once for the same offence.”, (page 516).
In that case the accused, having been charged with conspiracy, the essence of the offence was the illegal agreement. (See Belyea v. the King, Paradis v. The King, and particularly McDonald v. The Queen at p. 195). There was but one agreement alleged and the fact that the conspirators were shown to have had more than one breach of the law in contemplation in forming that agreement did not convert the conspiracy into two offences so as to justify separate convictions in respect of each.
With the greatest respect for those who may entertain a different opinion, I do not view the judgment in Cox and Paton v. The Queen as authority for the proposition that an accused cannot be charged and convicted on two separate offences when both those offences had been committed by means of a single act.
It appears to me that in enacting s. 11 of the Criminal Code Parliament recognized that more than one offence may be committed as a result of a single act. Section 11 reads as follows:
Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is,
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unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.
A similar section appears as s. 33 of the Interpretation Act 1889 (U.K.) c. 63 which reads:
Where an act or omission constituted an offence under two or more Acts, or both under an Act or at common law,… the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence.
In interpreting the effect of this section, Humphreys J. in Rex v. Thomas, said at p. 204:
It is not the law that a person shall not be liable to be punished twice for the same act; no one has ever said so in any case, and the Interpretation Act does not say so. What the Act says is that a person ‘shall not be liable to be punished twice for the same offence’. Not only is it not the law, but it never has been the law, and that it is not the law was expressly decided in the highest criminal Court in the land then existing the Court for the Consideration of Crown Cases Reserved, as far back as 1867, in Morris (1867), 10 Cox C.C. 480.
In the Thomas case the accused had been convicted of assault and was thereafter tried again for manslaughter arising out of the same facts, his victim having died after his first conviction as a result of the assault, but the observations of Humphreys J. are by no means limited to such a case as can be seen from the reasons for judgment of Lord Reading in R. v. Barron, where the accused, having been convicted of sodomy, was also charged with an act of gross indecency with another male person and Lord Reading took occasion to comment on
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the observations of Hawkins J. in R. v. King, where that judge had said:
It is against the very first principles of the criminal law that a man should be placed twice in jeopardy upon the same facts: the offences are practically the same, though not their legal operation.
As to this Lord Reading said, at p. 575:
It is quite plain that the learned judge did not intend to lay down and did not lay down as a general principle of law that a man cannot be placed twice in jeopardy upon the same facts if the offences are different. The statement obviously refers to a case where the offences are the same…
Being satisfied that the first and second counts of this indictment charge separate offences and that the second is not included in the first, I think it must follow that the defence of autrefois convict is not available to the appellant, but it was strongly contended that the plea of res judicata or issue estoppel was available in this case to preclude a conviction being entered on the second count after a finding of guilty on the first. In regard to this last argument I have been greatly assisted by a textbook entitled Res Judicata prepared by Spencer-Bower and Turner 2nd Ed. (1969) where it is said at p. 391, para. 479:
As has been pointed out in a previous chapter, the plea of autrefois convict is the process by which the doctrine of merger in judgment becomes effective in criminal jurisdiction. Once the accused has been tried for an offence, and convicted of it, that is an end to his criminal liability, and his conduct cannot serve as the basis of a second accusation of the same crime. As in civil, so in criminal law—transit in rem judicatam: the criminal liability of the prisoner for the offence which he has committed is merged in his
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conviction for that offence, once it has been obtained, and his liability to be punished is discharged by the punishment (if any) which has been inflicted in respect thereof.
It is particularly to be noticed, however, that while the maxim nemo debet bis puniri pro uno delicto forbids a second verdict of guilty for the same crime, it does not forbid a second prosecution for the same conduct, in cases in which such conduct may amount to two separate crimes. Whether it is just to prosecute an accused again after one conviction, may be debated on the facts of the particular case; but the maxim will not forbid it. Neither will an exemption from criminal liability on the second charge follow from the application of the maxim transit in rem judicatam. What has passed into res judicata is the offence of which he was convicted, together with those other offences of which he could have been convicted on the same facts on the same indictment.
I think it is clear that the words “same indictment” as employed in the last sentence of this quotation are, for the purpose of this case, synonymous with “second count”. (See s. 520 (2) of the Criminal Code.)
The comment made by Lord Morris in the course of his very comprehensive judgment in Connelly v. The Director of Public Prosecutions, at pp. 1307 and 1308, also appears to me to be of assistance in determining the validity of a second conviction arising out of the same facts. Lord Morris there said:
The principle seems clearly to have been recognised that if someone had been either convicted or acquitted of an offence he could not later be charged with the same offence or with what was in effect the same offence. In determining whether or not he was being so charged the court was not confined to an examination of the record. The reality of the matter was to be ascertained. That, however, did not mean that if two separate offences were committed at the same time a conviction or an acquittal in respect of one would be any bar to a subsequent prosecution in respect of the other. It was the offence or offences that had to be considered. Was there in substance one
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offence—or had someone committed two or more offences?
In considering the question posed by the last sentence in this passage, I think it desirable to make reference to the case of The King v. Quon, and R. v. Siggins.
In the Quon case the accused had been charged on two counts. The first laid under s. 446(c) of the Code alleged robbery while armed; the second laid under s. 122 of the Code alleged possession of a firearm capable of being concealed upon the person while committing “any criminal offence”. At his trial Quon pleaded guilty to the first charge and he was also found guilty of the second offence and sentenced to two years on each count. The Court of Appeal quashed the conviction on the second count and this decision was affirmed on appeal to this Court. In the course of his reasons for judgment, Mr. Justice Kellock made it clear that his reason for affirming the dismissal on the second count was that he regarded the offence there charged, not as a separate offence, but as an essential part of the offence charged in the first count. In the course of these reasons he said, at p. 525:
Coming to section 446(c), Parliament has by this provision, declared that for that offence, involving as one of its main elements, the presence on the offender of an offensive weapon, the penalty may be imprisonment for life and whipping. That is expressly the penalty for the totality of that conduct. I do not think therefore, that there is to be attributed to Parliament the intention that one part of that conduct (where the weapon in question is a firearm) may be made the subject of a separate charge under section 122,…
In reaching this conclusion, Mr. Justice Kellock had occasion to quote from the judgment of
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Blackburn J. in Wemyss v. Hopkins, the passage to which reference has been made in the reasons for judgment of my brother Laskin, the most relevant part of which reads as follows:
The defence does not arise on a plea of autrefois convict, but on the well established rule at common law, that when a person has been convicted and punished for an offence by a court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter;…
At the conclusion of this quotation, Mr. Justice Kellock observed:
The above principle is embodied in section 14 of the Code. The common law principle is as applicable, in my opinion, in the case of two sections of the same statute as in the case of separate statutes.
Reference to the Criminal Code as it existed in 1948 makes it plain that Mr. Justice Kellock was referring to s. 15 rather than s. 14 in making the last-quoted comment. Section 14 of the Criminal Code as it then read abolished the distinction between felony and misdemeanour, but s. 15 was the precursor of the present s. 11, and I am in any event in agreement that the provisions of that section, viewed in the light of what Humphreys J. said in R. v. Thomas, supra, respecting the equivalent English section, are just as applicable in the case of two sections of the Criminal Code as they are in the case of two statutes. One act may thus be the subject of convictions under two sections of the Criminal Code, but only one punishment can be imposed for the same offence.
The clear distinction between the Quon case and the case at bar is that the age of the victim is not one of the essential elements in the offence of rape and the same distinction applies to the case of Rex v. Siggins, supra, in which the reasons for judgment delivered by MacKay J.A.
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on behalf of the majority of the Court were clearly predicated on the assumption that:
The offence of theft where the person charged is the actual thief, necessarily involves the taking of possession by him of the article stolen, and the person found in the possession of goods which he himself has stolen has also committed the offence of having in his possession goods knowing them to have been stolen.
I do not purport to either approve or disapprove this assumption, but I mention it simply to indicate that the counts charging unlawful possession in that case were quashed because the Court took the view that theft “necessarily involves the taking of possession” whereas, as I have said, rape does not necessarily involve an offence under s. 146(1).
In summary, the position in the present case is this. The appellant has been charged with two separate and distinct offences under the Criminal Code. He was tried in respect of both charges. He was guilty of both offences. In those circumstances, on what basis can it be said that he cannot be convicted of both? There is nothing in the Criminal Code to preclude it. He was not being convicted twice in respect of the same offence. The cases dealing with double punishment are not relevant to the issue of law which is before us, which is concerned with the legal power to convict in respect of two offences, and not with the question of sentence.
For all these reasons I would dismiss this appeal.
The judgment of Judson, Spence, Pigeon, Laskin and Dickson JJ. was delivered by
LASKIN J.—There are no facts in dispute in this appeal and only the barest narration is necessary for its disposition. The appellant accused was indicted jointly with another male person on two counts of sexual offences against a girl admittedly thirteen years of age at the time. The offences charged were (1) rape, con-
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trary to s. 143 of the Criminal Code, and (2) unlawful carnal knowledge of a female under fourteen years of age, contrary to s. 146(1).
The relevant portion of the trial judge’s charge to the jury in respect of these two counts was as follows:
As to Kienapple, your possible verdicts are guilty or not guilty on Count 1, rape; if you find him guilty on Count 1, then you need not consider any of the included offences that I am about to mention and mentioned previously and you may also proceed at once to find him guilty on Count 2, because a conviction for rape also includes a finding of intercourse with a girl. It is admitted that she is under fourteen. So that you may find him guilty on Counts 1 and 2, but if you find him not guilty on Count 1, that is of rape, then you should consider whether it has been proven that he is guilty in Count 2, that is of having had sexual intercourse with a girl under fourteen. If you find him guilty of rape, then you stop right there because that takes care of the other count. If you find him not guilty of rape, go on to consider whether there was intercourse in Count 2.
The jury, on this direction, brought in a verdict of guilty on both counts, and the accused was subsequently sentenced to two concurrent terms of imprisonment of ten years. The Court of Appeal of Ontario dismissed the accused’s appeal without written or recorded reasons. Leave to appeal to this Court was given on the following question:
Whether the accused, having been convicted of rape, should in respect of the same single act have also been convicted of sexual intercourse with a female under the age of fourteen, not being his wife.
I should say that the issue raised by this question was not raised in the Courts below.
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Sections 143 and 146(1), as amended by 1972 (Can.), c. 13, s. 70, reads as follows:
143. A male person commits rape when he has sexual intercourse with a female person who is not his wife,
(a) without her consent, or
(b) with her consent if the consent
(i) is extorted by threats or fear of bodily harm,
(ii) is obtained by personating her husband, or
(iii) is obtained by false and fraudulent representations as to the nature and quality of the act.
146. (1) Every male person who has sexual intercourse with a female person who
(a) is not his wife, and
(b) is under the age of fourteen years,
whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.
The punishment for rape is prescribed by s. 144 which, as also amended by 1972 (Can.), c. 13, s. 70, reads now as follows:
Every one who commits rape is guilty of an indictable offence and is liable to imprisonment for life.
At the material time, so far as the charges against the accused were concerned, the punishments provisions for the two offences also included liability to be whipped. Section 140 is material to the definition of the offence under s. 146(1) in providing that the fact that there was consent to the commission of the offence is not a defence.
It is common ground that unlawful carnal knowledge under s. 146(1) is not an included offence on a charge of rape. Indeed, it could not be because s. 146(1) embraces two situations, one of which has all the ingredients of rape but is in respect of a female under age fourteen, and the second is inconsistent with rape in that there is consent. In a case therefore where there has
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been sexual intercourse with a girl under age fourteen and the question of consent is in issue (the burden being on the Crown on a charge of rape to negative it beyond a reasonable doubt), it is entirely understandable that the Crown would seek to indict an accused on two counts, as in the present case. Where the jury brings in a verdict of guilty on the first count of rape, there being only one act of sexual intercourse involved with the same girl, it has perforce found that the sexual intercourse was without consent and there can be no finding of guilt on the second count on the basis of consent, albeit this is not a defence. It is said, however, that there is no inconsistency in finding the accused guilty under s. 146(1) simply on the basis of the verdict of guilty of rape; such a finding, it is contended, merely fastens on that aspect of s. 146(1) which I described as paralleling all the ingredients of rape but in respect of a female under age fourteen.
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.
The rationale of my conclusion that the charges must be treated as alternative if there is
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a verdict of guilty of rape on the first count, that there should not be multiple convictions for the same delict against the same girl, has a long history in the common law. A convenient beginning is with the maxim expressed in Hudson v. Lee, at p. 990, “nemo debet bis puniri pro uno delicto”, which although framed in terms of double punishment, has come to be understood as directed also against double or multiple convictions; in short, nemo bis vexari as well as nemo bis puniri. This was exemplified in the unanimous judgment of this Court in Cox and Paton v. The Queen, which involved, inter alia, convictions of the accused on two counts, numbered (1) and (3), for conspiracy to steal and conspiracy to defraud, both relating to the same money and securities. Cartwright J., as he then was, speaking for this Court, held that the Manitoba Court of Appeal had properly quashed one of the convictions. He put the matter in these words (at p. 516):
The reason that the convictions on counts 1 and 3 cannot both be supported is not that they are “mutually destructive”, as was said of the counts in R. v. Mills [1959] Cr.L.Rev. 662, but rather that if both were allowed to stand the accused would in reality be convicted twice of the same offence. It is the same conspiracy which is alleged in the two counts and it would be contrary to law that the accused should be punished more than once for the same offence.
Of course, in a strict sense, Cox and Paton was no more a case of multiple convictions for the same offence than is the present case. Rather it was a case, as is the present one, of multiple convictions for the same matter. It is clear to me that in the context of the decision in Cox and Paton the word “offence” was used in
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the sense attributed to it by Pollock B. in The Queen v. Miles at p. 436, where he said:
At the trial it was proved on behalf of the prisoner, and admitted by counsel for the prosecution, that the first four counts of the indictment referred to the same matter as the offence mentioned in the record. In substance, therefore, the plea and the evidence establish that there was but one offence, and that the acts done by the defendant in respect of which he was convicted, by whatever legal name they might be called, were the same as those to which the indictment referred, and therefore the rule of law Nemo debet bis puniri pro uno delicto applies, and if the prisoner were guilty of the modified crime only he could not be guilty of the same acts with the addition of malice and design.
That case involved a charge of wounding laid under a statute. There had been a previous conviction for assault at common law, and although the offences were different it was held that the accused could not be convicted again for the same matter. Reference was made to The Queen v. Miles by Humphreys J. in Rex v. Thomas, at p. 30 as follows:
The accused entered a plea in bar in which he alleged that the assault of which he had been convicted previously and the wounding and battery in the first four counts of the indictment, were one and the same assault and battery and not other and different. The Court for the Consideration of Crown Cases Reserved upheld the appellant’s plea, which they regarded as an informal plea of autrefois convict, and it is important to examine the reasons why they so held. All the judges considered that the plea and the evidence established that there was one offence only committed by the accused. It was one and the same assault, although in three of the counts that assault was alleged to have been accompanied by circumstances of aggravation.
Blackburn J. had earlier expressed a similar
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view in his judgment in Wemyss v. Hopkins at p. 381 when he said (in respect of a case where there were successive prosecutions under different statutes):
I think the fact that the appellant had been convicted by justices under one Act of Parliament for what amounted to an assault is a bar to a conviction under another Act of Parliament for the same assault. The defence does not arise on a plea of autrefois convict, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence.
This statement was quoted with approval by Kellock J. in The King v. Quon, at p. 519. In Connelly v. Director of Public Prosecutions, Lord Pearce, at p. 1362 referred to Wemyss v. Hopkins and like cases for the proposition that “the court in its criminal jurisdiction retained a power to prevent a repetition of prosecutions even when it did not fall within the exact limits of the pleas in bar”.
The pleas in bar are dealt with in ss. 535 to 537 and s. 743(2) of the Criminal Code. So far as autrefois convict is concerned, the relevant provisions, for present purposes, are ss. 536 and 537(1)(a) which speak, respectively, of “the identity of the charges” and, in that connection, “that the matter on which the accused was given in charge on the former trial is the same in whole or in part”. This last quoted provision in s. 537(1)(a) suggests that, so far at least as successive prosecutions are involved, the plea of autrefois convict goes beyond strict identity of offences and is akin to res judicata. But even if the pleas of autrefois be narrowly construed,
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res judicata as a common law defence to a charge is preserved by s. 7(2) of the Criminal Code.
In my view, 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. In Studies in Criminal Law (1964) by Morris and Howard, the authors in an essay entitled Res Judicata in the Criminal Law, at p. 252, say that “res judicata as a general principle concerns itself only with the question whether an issue has been decided not with the question in whose favour the decision went”. Although transit in rem judicatam, as used by Blackburn J. in Wemyss v. Hopkins, supra, is more appropriate to a plea of autrefois acquit or issue estoppel, it is clear that he was concerned with a matter more akin to double jeopardy and autrefois convict, as was Cartwright J. in the Cox and Paton case. Where there has been a previous conviction of an accused, whether in a former trial or on one count of a multicount indictment, issue estoppel is obviously an inappropriate term to urge against a further conviction of another offence. So too would be autrefois convict in its strict connotation; hence, the utility of res judicata.
On this view, nothing is added or subtracted by s. 11 of the Criminal Code which reads as follows:
Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is,
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unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.
This provision had its origin, as a general provision, in An Act respecting Punishments, Pardons and the Commutation of Sentences, R.S.C. 1886, c. 181, s. 3 where it was as follows:
Whenever any offender is punishable under two or more Acts or two or more sections of the same Act, he may be tried and punished under any of such Acts or sections, but no person shall be twice punished for the same offence.
The above-quoted s. 3 was an amalgam of earlier legislation having a particular application and found in The Offences against the Person Act, 1869 (Can.), c. 20, ss. 40 and 41, The Wreck and Salvage Act, 1873 (Can.), c. 55, s. 33, and The Breaches of Contract Act, 1877 (Can.), c. 35, s. 6. It was carried literally into the first Criminal Code, 1892 (Can.), c. 29, s. 933, but in the 1906 revision it underwent a change to conform with s. 33 of the United Kingdom Interpretation Act, 1889 (U.K.), c. 63. The present s. 11 of the Criminal Code is in substance a reenactment of the United Kingdom s. 33, but with a slight alteration in language. In its material terms, it conforms to the comparable United Kingdom section. I find it a curious provision because in its opening words (“where an act or omission is an offence under more than one Act…”) it appears to reflect the maxim nemo bis vexari, and yet in its concluding words (“not liable to be punished more than once for the same offence”) it reflects the maxim nemo debet bis puniri pro uno delicto’.
Humphreys J. in Rex v. Thomas, supra, insisted on a literal application of those concluding words, rejecting a text-book gloss on them as embracing “act” and “cause” as well as “offence” in the strict sense. I do not think that his illustration of successive successful prosecu-
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tions for assault and for manslaughter (after the assault victim dies), as shown in Regina v. Morris, is a convincing support for reading s. 33 with literal emphasis on its concluding words and no emphasis on its opening words. That situation and the one that was presented in Rex v. Thomas itself (conviction of wounding with intent to murder, followed by an indictment for murder when the victim dies) can stand on their own without warranting a restrictive reading of the English s. 33 and our s. 11. The ensuing death brings into view a new relevant element not present when the first conviction occurred. That is not so in the case at bar. I would note, further, that if manslaughter and assault were charged in the same indictment the accused could not be convicted of both because of the included offence rule.
I cannot view s. 11 as modifying the scope of res judicata, let alone the scope of the pleas of autrefois as defined in ss. 535 to 537 of the Criminal Code. The relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences. Moreover, it cannot be the case that if an accused is tried on several counts charging different offences, he is liable to be convicted and sentenced on each count, and yet if he was tried and convicted on one only he would be entitled to set up the defence of res judicata as a defence to other charges arising out of the same cause or matter.
Although there have been cases where multiple convictions were registered, when in substance only one “crime” has been committed, refusal to interfere on appeal was justified on
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the “no substantial wrong” basis because only one sentence was imposed: see Rex v. Lockett, Kelly v. The King. The better practice, however, is to avoid multiple convictions, as was done in the Cox and Paton case, and earlier by the Ontario Court of Appeal in Regina v. Siggins, which relied on the opinion of Kellock J. in The King v. Quon, supra. Siggins was a not uncommon case of charging an alleged thief, found in possession of stolen goods, with both theft and unlawful possession. It was there said (at p. 285) that
The Crown is entitled to lay both charges against him, but at the trial, if the jury convict of theft they should not convict on the charge of unlawful possession. If they acquit on the charge of theft they may then consider and, if they see fit to do so, convict on the charge of unlawful possession.
In short, in relation to potentially multiple convictions, it is important to know the verdict on the first count, just as in the case of successive prosecutions it is important to know the result of the first trial: see Friedland, Double Jeopardy (1969), at p. 94.
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 application of a rule against multiple convictions: see Connelly v. Director of Public Prosecutions, at pp. 1305 and 1308, per Lord Morris of Borth-y-Gest; cf. Rex v. Kendrick and Smith.
I test the matter in two other ways. If an accused may be charged on two counts, as in the present case, and may properly be found guilty on each for the one act of sexual intercourse with the same girl, it should be open to the Crown to charge him successively in the
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same way. If it obtains a verdict of guilty of rape it should be entitled to prefer another charge under s. 146(1) in order to obtain another verdict of guilty and seek a further consecutive sentence. Yet it seems clear enough that on the second charge, res judicata would be a complete defence since all the elements and facts supporting the conviction of rape would necessarily be the same under s. 146(1). Moreover, since the occurrence involved a proved negation of consent, there could be no conviction under the second aspect of s. 146(1) when there has been a conviction of rape.
In saying that res judicata (as an expression broader than autrefois convict) would be a complete defence, I am applying the bis vexari principle against successive prosecutions, a principle that, according to Morris and Howard, in the essay mentioned earlier, is grounded on the Court’s power to protect an individual from an undue exercise by the Crown of its power to prosecute and punish.
The second test is to reverse the order of the counts in the present case. If on the first charge of an offence under s. 146(1) the jury brings in a verdict of guilty, it would be inconsistent to find an accused guilty on a second count of rape because there may have been consent; and even if not, the considerations underlying res judicata would preclude a verdict of guilty of rape. Of course, if on a first count under s. 146(1) the accused was found not guilty, there could obviously be no finding of guilty of rape unless on the basis that the girl involved was over age fourteen; apart from that, there has been either no sexual intercourse proved even if there was no consent, or there has been no sexual intercourse proved albeit there was consent.
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Parliament’s power to constitute two separate offences out of the same matter is not in question, but unless there is a clear indication that multiple prosecutions and, indeed, multiple convictions are envisaged, the common law principle expressed in the Cox and Paton case should be followed. Neither the definitions of the respective offences nor their history gives any support to the view that that common law principle has been ousted. The limits of punishment are the same, and I have already spoken of the ingredients of the respective offences. As a matter of history, the present s. 146(1) has its origin in s. 269 of the original Criminal Code 1892 (Can.), c. 29, which used the phrase “carnally knows” instead of “sexual intercourse” both for that offence and for rape. Section 269 was taken from s. 39 of the Offences against the Person Act, R.S.C. 1886, c. 162 which, as amended by 1890 (Can.), c. 37, s. 12 raised the age ingredient from ten years to fourteen and added whipping to the prescribed punishment of a term for life or for not less than five years. When the Offences against the Person Act was first enacted in Canada by 1869, c. 20, carnal knowledge of a girl under ten was a capital offence under s. 51, as was rape; but, unlike rape, which remained a capital offence until the enactment of 1953-1954 (Can.), c. 51, s. 136 (although whipping was added in 1921 to the alternative maximum punishment of life imprisonment), the maximum punishment for unlawful carnal knowledge was changed to a life term by 1877 (Can.), c. 28, s. 2.
If any conclusion can be drawn from this short history, it is that carnal knowledge of a victim under age ten, and later under age fourteen, with its lesser punishment after 1877 (and until that for rape was changed), was regarded
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as an alternative charge to rape, unnecessary where there was no consent (since age was not and is not a necessary averment in rape) but available where proof of want of consent could not be made or was doubtful. As a practical matter, this situation invited statutory reform to make it possible for a jury to return a verdict of guilty of unlawful carnal knowledge on a charge of rape of a girl under fourteen. In England, this situation was met by the Criminal Law Amendment Act, 1885 (U.K.), c. 69, s. 9, and similar enactments were made in the Australian States: see Howard, Australian Criminal Law (2nd ed. 1970), pp. 172-3. The English provision was continued under s. 37 of the Sexual Offences Act, 1956 (U.K.), c. 69, but was repealed by s. 10 and Schedule 3, s. 13(1)(d)(i) of the Criminal Law Act, 1967 (U.K.), c. 58; and see Regina v. Hodgson.
We have never had legislation of that kind in Canada, and hence we continue to be governed by the law as to included offences, which excludes a conviction under s. 146(1) on a charge of rape. Rex v. Marcus and Richmond, a judgment of the Ontario Appellate Division, is particularly illustrative. The accused was charged with rape the victim being a girl under age fourteen. There was some question at the trial whether the Crown proved want of consent, and the trial judge charged the jury, wrongly, that it was open to them to bring in a verdict of guilty of unlawful carnal knowledge of a girl under age fourteen. In setting aside the verdict and ordering a new trial on the charge of rape the Court added (at p. 166) that “it is probable that the Crown will see fit to lay a further charge based upon the provisions of sec.
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301 [now s. 146(1)]”.
In the circumstances of the present case, the superadded element of age in s. 146(1) does not operate to distinguish unlawful carnal knowledge from rape. Age under fourteen is certainly material where consent to the sexual intercourse is present; but once that is ruled out, as it is in the present case, it becomes meaningless as a distinguishing feature of the offences of rape and unlawful carnal knowledge. No doubt, it can be taken into account on sentence under s. 146(1), but, equally, it can be considered under s. 143; and I can see no basis for departing from the principle under discussion if the age of the victim happens to be thirteen instead of fifteen when the maximum punishment is the same under both s. 143 and s. 146(1).
In the result, I would allow the appeal and quash the conviction for unlawful carnal knowledge under s. 146(1), and, of course, the concurrent sentence of ten years imposed in consequence of that conviction must also fall.
Appeal allowed, FAUTEUX C.J. and ABBOTT, MARTLAND and RITCHIE JJ. dissenting.
Solicitor for the appellant: J.D. Morton, Toronto.
Solicitor for the respondent: The Attorney General of Ontario.
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