The accused stabbed a pregnant woman in the abdomen
causing the premature birth of her child and his death. The accused, who was
convicted of causing bodily harm to the mother at her first trial, made a
preliminary motion requesting a stay of proceedings on a charge of manslaughter
of the child on the basis of the principle in Kienapple. The trial judge
denied the motion holding that Kienapple was inapplicable. The accused
then made an application to the Court of Queen's Bench for an order of
prohibition to prohibit the trial court from proceeding on the manslaughter
charge and for an order of certiorari to quash the indictment. The
application was dismissed. On appeal, the Court of Appeal held that the accused
could not be convicted on the charge of manslaughter, granted certiorari
and quashed the indictment. This appeal is to determine whether the accused,
who was convicted of causing bodily harm in respect of the mother, may also be
tried for manslaughter in respect of the deceased child.
Held: The appeal should
be allowed.
The rule against multiple convictions is applicable
when there is a relationship of sufficient proximity firstly as between the
facts, and secondly as between the offences which form the basis of two or more
charges. In most cases the factual nexus requirement will be satisfied by an
affirmative answer to the question: Does the same act of the accused ground
each of the charges? It will not always be easy to define when one act ends and
another begins, but when such difficulties arise they can be resolved having
regard to factors such as the remoteness or proximity of the events in time and
place, the presence or absence of relevant intervening events, and whether the
accused's actions were related to each other by a common objective.
No element which Parliament has seen fit to
incorporate into an offence and which has been proven beyond a reasonable doubt
ought to be omitted from the offender's accounting to society, unless that
element is substantially the same as, or adequately corresponds to, an element
in the other offence for which he or she has been convicted. The requirement of
sufficient proximity between offences will therefore only be satisfied if there
is no additional and distinguishing element that goes to guilt in the offence
for which a conviction is sought to be precluded by the Kienapple
principle.
An element cannot be regarded as distinct or
additional for the purpose of the rule against multiple convictions where (1)
an element in one offence is a particularization of an element in another
offence; (2) there is more than one method, embodied in more than one offence,
to prove a single delict; and (3) when Parliament in effect deems a particular
element to be satisfied by proof of a different nature because of social policy
or inherent difficulties of proof. In applying these criteria, however, it is
important not to carry logic so far as to frustrate Parliament's intent or as
to lose sight of the overarching question whether the same cause, matter or
delict underlies both charges.
In the case at bar, Kienapple is not
applicable. The requirement of a sufficient factual nexus is satisfied‑‑a
single act of the accused grounds both charges‑‑but there is no
sufficient correspondence between the elements of the two offences to sustain
the operation of the rule against multiple convictions. The first offence
contains as an essential ingredient the causing of bodily harm to the mother;
the second requires proof of the death of her child. Neither of these elements
can be subsumed into the other. Moreover, in so far as crimes of personal
violence are concerned, the rule against multiple convictions is inapplicable
when the convictions relate to different victims.
Finally, notwithstanding the possibility of
jurisdictional error in some cases, a superior court should generally decline
to consider the merits of a Kienapple argument on an interlocutory
application.
Cases Cited
Distinguished: Kienapple
v. The Queen, [1975] 1 S.C.R. 729; considered: R. v. Hagenlocher
(1981), 65 C.C.C. (2d) 101, aff'd [1982] 2 S.C.R. 531; Krug v. The Queen,
[1985] 2 S.C.R. 255; Côté v. The Queen, [1975] 1 S.C.R. 303; approved:
R. v. Logeman (1978), 5 C.R. (3d) 219; R. v. Lecky (1978), 42
C.C.C. (2d) 406; R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65; R.
v. Pinkerton (1979), 46 C.C.C. (2d) 284; R. v. Père Jean Grégoire de la
Trinité (1980), 60 C.C.C. (2d) 542; referred to: R. v. Quon,
[1948] S.C.R. 508; R. v. Siggins (1960), 127 C.C.C. 409; Connelly v.
D.P.P., [1964] A.C. 1254; R. v. Boyce (1975), 23 C.C.C. (2d) 16; R.
v. Allison (1983), 33 C.R. (3d) 333; McKinney v. The Queen, [1980] 1
S.C.R. 401, aff'g (1979), 46 C.C.C. (2d) 566; R. v. Harrison (1978), 7
C.R. (3d) 32; R. v. Taylor (1979), 48 C.C.C. (2d) 523; R. v. Langevin
(1979), 47 C.C.C. (2d) 138; McGuigan v. The Queen, [1982] 1 S.C.R. 284; R.
v. Loyer, [1978] 2 S.C.R. 631; R. v. Gushue (1976), 32 C.C.C. (2d)
189, aff'd on other grounds [1980] 1 S.C.R. 798; Terlecki v. The Queen,
[1985] 2 S.C.R. 483; R. v. Birmingham and Taylor (1976), 34 C.C.C. (2d)
386; Hewson v. The Queen, [1979] 2 S.C.R. 82.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34 as amended, ss. 11, 205(5)(a),
206(2), 589, 663(2), 666(1).
Authors Cited
Béliveau, Pierre et Diane
Labrèche. "L'élargissement du concept de "double jeopardy" en
droit pénal canadien: de bis puniri a bis vexari" (1977), 37 R. du B.
589.
Braithwaite, William J.
"Developments in Criminal Law and Procedure: The 1979‑80 Term"
(1981), 2 Supreme Court L. R. 177.
Braithwaite, William J.
"Down to the Core of the Kienapple" (1979), 9 C.R. (3d) 88.
Chasse, Kenneth L. "A
New Meaning for Res Judicata and its Potential Effect on Plea Bargaining"
(1974), 26 C.R.N.S. 20, 48 and 64.
Ewaschuk, E. G. "The
Rule Against Multiple Convictions and Abuse of Process" (1975), 28
C.R.N.S. 28.
Jordan, James C.
"Application and Limitations of the Rule Prohibiting Multiple Convictions:
Kienapple v. The Queen to R. v. Prince" (1984‑85), 14 Man. L. J.
341.
Klinck, Dennis R.
" "The Same Cause or Matter": The Legacy of Kienapple"
(1983‑84), 26 Crim. L. Q. 280.
Leonoff, Heather and David
Deutscher. "The Plea and Related Matters". In Criminal Procedure
in Canada. Edited by Vincent Del Buono. Toronto: Butterworths, 1982, pp.
229‑262.
Mewett, Alan W. "Nemo
Bis Vexari" (1973‑74), 16 Crim. L. Q. 382.
Salhany, Roger E. Canadian
Criminal Procedure, 4th ed. Aurora: Canada Law Book, 1984.
Sheppard, A. F.
"Criminal Law‑‑Rule Against Multiple Convictions" (1976),
54 Can. Bar Rev. 627.
APPEAL from a judgment of the Manitoba Court of
Appeal (1983), 27 Man. R. (2d) 63, 9 C.C.C. (3d) 155, [1984] 2 W.W.R. 114,
allowing the accused's appeal from a judgment of Kroft J. dismissing the
accused's application for certiorari. Appeal allowed.
Stuart Whitley,
for the appellant.
Barry Hart Sinder,
for the respondent.
The judgment of the Court was delivered by
1. The
Chief Justice‑‑This appeal raises once again the scope of
the principle enunciated in Kienapple v. The Queen, [1975] 1 S.C.R. 729.
A single act of the respondent, Sandra Prince, caused injury to one person and
is alleged to have caused the death of another. Prince has been convicted of
causing bodily harm in respect of the injured victim. The question is whether
she may also be tried for manslaughter in respect of the deceased victim.
I
Facts
2. On January 1, 1981, Sandra Prince, by
means of a single blow to the abdomen stabbed Bernice Daniels. At the time
Daniels was six months pregnant. On January 2, 1981, Prince was charged with
the attempted murder of Daniels. On January 6, 1981, Daniels gave birth to a
child who lived for 19 minutes and then died. The cause of death is alleged to
be traceable to the stabbing. The autopsy report indicated that the knife
penetrated the amniotic sac, causing contamination of the amniotic fluid which
in turn caused the child's premature birth. Because the fetus was not
sufficiently developed, the child died.
3. Between December 7, 1981, and January 4,
1982, Prince was tried and acquitted of the attempted murder of Daniels but was
convicted on a charge of causing bodily harm to Daniels. An appeal to the
Manitoba Court of Appeal in respect of her conviction and sentence (six months
imprisonment) was dismissed on October 20, 1982.
4. In the meantime, on July 1, 1981,
following an inquest into the death of the child, and following Prince's
committal for trial on the charge of attempted murder of Daniels, Prince was
charged with manslaughter of the child as follows:
THAT she, the said SANDRA
PRINCE, between the thirty‑first day of December, in the year of our Lord
one thousand nine hundred and eighty, and the seventh day of January, in the
year of our Lord one thousand nine hundred and eighty‑one, both dates
inclusive, at the City of Winnipeg, in the Eastern Judicial District, in the
Province of Manitoba, did unlawfully cause death to the unnamed male child of
Bernice Daniels, and did thereby commit manslaughter.
A preliminary inquiry regarding this charge was held in February, 1982,
and Prince was committed to stand trial. On April 29, 1983, Prince's lawyer
made a preliminary motion to the trial judge, Barkman Co. Ct. J., requesting
him to enter a stay of proceedings on the basis of the principle in Kienapple
v. The Queen.
II
Judgments in the Manitoba Courts
5. Barkman Co. Ct. J. denied the motion. He
held that Kienapple was inapplicable because, although there was only
one act of the accused, there were two persons affected and there were two
different elements: the wounding of Daniels, and the wounding of the child
ultimately resulting in his death. Barkman Co. Ct. J. said that it was
difficult to reconcile the decision in R. v. Hagenlocher (1981), 65
C.C.C. (2d) 101 (Man. C.A.) with other cases. The majority of the Manitoba
Court of Appeal left the impression in its reasons in that case that the focus
of the Kienapple inquiry was on the acts of the accused which grounded
the charges. If a single act was involved, it appeared that Kienapple
would be applicable according to those reasons. Barkman Co. Ct. J. suggested
that whether Hagenlocher was correctly decided was a question which
might possibly be resolved in time. In his view, the majority of the
authorities indicated that Kienapple was inapplicable in multiple‑victim
situations.
6. Prince then applied to the Court of
Queen's Bench for an order of prohibition to prohibit the County Court Judges'
Criminal Court from trying her on the manslaughter indictment, and for an order
of certiorari quashing the indictment. Without dealing with the merits
of the Kienapple argument, Kroft J. dismissed the application. In his
view, the application was in the nature of an appeal from the decision of
Barkman Co. Ct. J. on the preliminary motion. He felt the proper course for
Prince was to appeal the decision of the trial judge at the conclusion of the
trial.
7. In the Manitoba Court of Appeal, on an
appeal from the decision of Kroft J., Matas J.A. delivered the reasons for a
unanimous panel consisting also of O'Sullivan and Huband JJ.A. Matas J.A.
observed that the decision of the Manitoba Court of Appeal in R. v.
Hagenlocher was affirmed by this Court, [1982] 2 S.C.R. 531, for the
reasons delivered orally by Laskin C.J.:
We do
not need to hear you, Mr. Margolis and Mr. Zaifman. We are all of the opinion
that the conclusions reached by the majority judgment of the Manitoba Court of
Appeal in applying the Kienapple principle were correct and hence this
appeal must accordingly be dismissed.
Matas J.A. felt that Hagenlocher (which I will summarize below)
was applicable to the facts of the present case. Accordingly, Prince could not
be convicted on the manslaughter indictment. The Court of Appeal granted certiorari
and quashed the indictment, noting that it would have been a jurisdictional
error for Barkman Co. Ct. J. to have proceeded with a trial on the manslaughter
charge and that no purpose would be served by refusing relief to Prince and
thereby requiring her to submit to an unnecessary trial: (1983), 27 Man. R.
(2d) 63, 9 C.C.C. (3d) 155, [1984] 2 W.W.R. 114.
III
The Kienapple Case
8. Since this Court's decision in Kienapple,
there has been considerable controversy about the nature and scope of the
principle of res judicata articulated for the majority by Laskin J., as
he then was. Various commentators have expressed differing views about the
meaning and application of the Kienapple case: see Dennis R. Klinck,
" "The Same Cause or Matter": The Legacy of Kienapple"
(1983‑84), 26 Crim. L. Q. 280; James C. Jordan, "Application
and Limitations of the Rule Prohibiting Multiple Convictions: Kienapple v. The
Queen to R. v. Prince" (1984‑85), 14 Man. L. J. 341; Alan W.
Mewett, "Nemo Bis Vexari" (1973‑74), 16 Crim. L. Q. 382;
A. F. Sheppard, "Criminal Law‑‑Rule Against Multiple
Convictions" (1976), 54 Can. Bar Rev. 627; Kenneth L. Chasse,
"A New Meaning for Res Judicata and its Potential Effect on Plea
Bargaining" (1974), 26 C.R.N.S. 20, 48, 64; E. G. Ewaschuk, "The Rule
Against Multiple Convictions and Abuse of Process" (1975), 28 C.R.N.S. 28;
Pierre Béliveau and Diane Labrèche, "L'élargissement du concept de
"double jeopardy" en droit pénal canadien: de bis puniri a bis
vexari" (1977), 37 R. du B. 589 at pp. 628‑36; William J.
Braithwaite, "Down to the Core of the Kienapple" (1979), 9 C.R. (3d)
88; Roger E. Salhany, Canadian Criminal Procedure (4th ed. 1984), at pp.
258‑63; Heather Leonoff and David Deutscher, "The Plea and Related
Matters", in Vincent Del Buono (ed.), Criminal Procedure in Canada
(1982), at pp. 258‑62; William J. Braithwaite, "Developments in
Criminal Law and Procedure: The 1979‑80 Term" (1981), 2 Supreme
Court L. R. 177, at pp. 213‑19. The courts also have expressed widely
differing views regarding the proper scope of the Kienapple principle:
contrast, for example, the majority opinion of Huband J.A. with the dissenting
opinion of Monnin J.A., as he then was, in R. v. Hagenlocher.
9. The variance of views within the
judiciary and in the learned journals suggests that the time may well be ripe
for a review of the jurisprudence in this area. The appropriate point of
departure is, of course, the judgment of the majority in Kienapple in which
an accused was indicted on two counts in respect of a single act of non‑consensual
sexual intercourse with a thirteen year old girl who was not his wife. The
defendant, Kienapple, was charged with 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 . At page 744, Laskin J. said:
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.
(Emphasis added.)
10. In describing the rationale underlying his
conclusion Laskin J. referred to a principle that there ought not to be
multiple convictions for the same "delict", "matter" or
"cause". At page 750, he explained:
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.
(Emphasis added.)
And at p. 751:
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:...
(Emphasis added.)
The majority judgment at p. 753, however, recognized that Parliament
could create two separate offences out of the same matter and could mandate
multiple convictions if it made clear its intentions in this regard.
11. After considering the legislative history
of the two offences in the Kienapple case, Laskin J. stated at pp. 753‑54:
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 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.
(Emphasis added.)
12. Professor Klinck in the following passage
at p. 286 of his article, " "The Same Cause or Matter": The
Legacy of Kienapple", supra, has in my view correctly identified
the manner in which the two charges in Kienapple were
"alternative" to each other:
Sexual intercourse with a
female under 14 could be regarded as a kind of "constructive rape";
it might be said that the statute deems a girl under 14 to be incapable of
consenting.
It is only in this fashion that it can properly be said that "the
same or substantially the same elements" made up the offences of rape and
carnal knowledge of a female under 14 years of age.
13. Several commentators on the Kienapple
decision have suggested that res judicata in criminal law is an
inappropriate foundation upon which to rest a rule against multiple
convictions, or at least that a new meaning had to be given to res judicata
in order to support the Kienapple decision: Sheppard, supra, at
p. 635; Ewaschuk, supra, at p. 30; Jordan, supra, at pp. 347‑48;
Chasse, supra, at pp. 20‑21; and Mewett, supra, at p. 385.
There may be some merit to questioning the choice of terminology selected by
the majority, and for this reason I prefer to refer to the doctrine enunciated
in Kienapple as a rule against multiple convictions or, simply, as the Kienapple
principle.
14. What cannot seriously be denied, however,
is that there was antecedent Canadian case law precluding multiple convictions
in circumstances that did not fall neatly within the plea of autrefois
convict, or within s. 11 of the Criminal Code (prohibiting multiple
punishment for the "same offence"), or within the requirements of an
included offence under s. 589 : see, for example, R. v. Quon, [1948]
S.C.R. 508, and R. v. Siggins (1960), 127 C.C.C. 409 (Ont. C.A.) These
cases, amongst others, prior to the Court's decision in Kienapple, make
it clear that the Canadian courts have long been concerned to see that multiple
convictions are not without good reason heaped on an accused in respect of a
single criminal delict. I therefore cannot agree with those commentators who
refer to the Kienapple case as having created an entirely "new
defence": Chasse, supra at p. 20; Jordan, supra, at p. 356.
What was new in Kienapple relative to Quon (though not to Siggins)
was the abandoning of an attempt to give effect to a rule against multiple
convictions by "reading down" a Criminal Code provision. What
was also new was an express recognition that the test for the application of
the rule had to be framed not in terms of whether the offences charged were the
"same offences" (or "included offences"), but in terms of
whether the same "cause", "matter" or "delict"
was the foundation for both charges.
15. This second change acknowledges that
"offence" is a term of art and any given offence cannot be "the
same as" or "included in" any other offence unless there is a
precise correspondence in the definition of the offences. In the words of Lord
Devlin, "legal characteristics are precise things and are either the same
or not": Connelly v. D.P.P., [1964] A.C. 1254 (H.L.) See also
Klinck, supra, at p. 285. In short, I believe it was the acknowledgment
of the independent legal identity of different offences which led the majority
in Kienapple to its careful choice of the words, "cause",
"matter", or "delict" in lieu of "offence".
16. Unfortunately, some commentators and
courts have wrongly inferred from these words that there need be no substantial
nexus between the offences for which an application of the Kienapple
principle is sought, providing there is a common act of the accused
underlying the charges. The excerpts which I have quoted above from the Kienapple
case, including phrases such as "substantially the same elements",
"alternative charges", and "one [offence] embraces the
other", suggest that the majority thought otherwise.
IV
The Scope of the Kienapple Principle
(i) The Factual Nexus Between the Charges
17. It is elementary that Kienapple
does not prohibit a multiplicity of convictions, each in respect of a different
factual incident. Offenders have always been exposed to criminal liability for
each occasion on which they have transgressed the law, and Kienapple
does not purport to alter this perfectly sound principle. It is therefore a sine
qua non for the operation of the rule against multiple convictions that the
offences arise from the same transaction.
18. The degree of factual identity between the
charges that is required to sustain the application of the rule is exemplified
by the decision of this Court in Côté v. The Queen, [1975] 1 S.C.R. 303,
which involved two offences normally capable of supporting the rule against
multiple convictions: see Hewson v. The Queen, [1979] 2 S.C.R. 82, at p.
97. In Côté, the accused had been found in possession of property two
years after his conviction for a robbery in respect of the same property. The
accused had been sentenced for the robbery offence, imprisoned and released
from prison when the police found him in possession of the stolen property.
Evidently the accused had hidden the fruits of his robbery before he served his
jail sentence. It was argued that possession by the original thief was merely a
continuation of the act of theft.
19. The majority of the Court, however, held
that the accused's possession was sufficiently removed in time and circumstance
from the original taking of the property so that the accused could be convicted
of both offences. Fauteux C.J. (Ritchie, Abbott and Judson JJ. concurring)
wrote, at pp. 310‑11:
In my opinion one cannot
validly maintain, on the one hand, that continuation of the thief's possession‑‑whether
for weeks, months or years‑‑is always a continuation of the act of
theft or, if one prefers, a continuation of the commission of the theft, and
one cannot, on the other hand, maintain that at the very time and place in
which the thief takes or converts the thing, and so acquires possession of it,
he is committing the offence of unlawful possession dealt with in s. 296.
Determination
of the time when the offence of theft is consummated and the offence of
unlawful possession, described in s. 296, so far as the thief is concerned,
begins, cannot be resolved in the abstract. However, the difficulty that may
exist in determining this time, according to the circumstances of each case,
does not affect the substance of the law.
For Pigeon J. (Martland J. concurring) it was the intervening
conviction itself which separated the theft from the possession. In his view,
an accused could not receive judicial sanction to continue breaking the law.
For a continuing offence there is no undue multiplication of convictions when
the second conviction relates to a continuation of the offence beyond the date
of the first conviction.
20. In most cases, I believe, the factual
nexus requirement will be satisfied by an affirmative answer to the question: Does
the same act of the accused ground each of the charges? As Côté
demonstrates, however, it will not always be easy to define when one act ends
and another begins. Not only are there peculiar problems associated with
continuing offences, but there exists the possibility of achieving different
answers to this question according to the degree of generality at which an act
is defined: see Klinck, supra, at p. 292; Leonoff and Deutscher, supra,
at p. 261; and Sheppard, supra, at p. 638. Such difficulties will have
to be resolved on an individual basis as cases arise, having regard to factors
such as the remoteness or proximity of the events in time and place, the
presence or absence of relevant intervening events (such as the robbery
conviction in Côté), and whether the accused's actions were related to
each other by a common objective. In the meantime, it would be a mistake to
emphasize the difficulties. In many cases, including the present appeal, it
will be clear whether or not the charges are founded upon the same act.
(ii) The Nexus Between the Offences: Need There
be One?
21. The next question which must be addressed
is whether the presence of a sufficient factual nexus is the only requirement
which must be met in order to justify application of the Kienapple
principle. Counsel for Sandra Prince refers in his factum to the Kienapple
principle as one relating to multiple convictions for the same act.
Similarly, Sheppard, in his early commentary on Kienapple, propounds a
same transaction test for the rule against multiple convictions. Some
courts, too, have referred to the "same act" or "same
transaction" underlying two offences in terms which might suggest that
that was sufficient to sustain the operation of the rule: see, for example, R.
v. Boyce (1975), 23 C.C.C. (2d) 16 (Ont. C.A.), R. v. Allison
(1983), 33 C.R. (3d) 333 (Ont. C.A.) and Hagenlocher (Man. C.A.)
22. In my opinion, the application of Kienapple
is not so easily triggered. Once it has been established that there is a
sufficient factual nexus between the charges, it remains to determine whether
there is an adequate relationship between the offences themselves. The
requirement of an adequate legal nexus is apparent from the use by the majority
in Kienapple of the words "cause", "matter" or
"delict" in lieu of "act" or "transaction" in
defining the principle articulated in that case. More telling is the fact that
Laskin J. went to considerable pains to discuss the legislative history of rape
and carnal knowledge of a female under 14 years and to conclude that the
offences were perceived as alternative charges when there was non‑consensual
intercourse with a female under 14. I am not prepared to regard Laskin J.'s
analysis in this regard as unnecessary or irrelevant to the outcome in Kienapple,
which it would of course be if the rule against multiple convictions applied
whenever there was a sufficient factual nexus between the charges.
23. In my opinion, the weight of authority
since Kienapple also supports the proposition that there must be
sufficient nexus between the offences charged to sustain the rule against
multiple convictions. In a unanimous judgment in McKinney v. The Queen,
[1980] 1 S.C.R. 401, delivered orally by Laskin C.J., the Court saw no reason
for interfering with a decision of the Manitoba Court of Appeal reported at
(1979), 46 C.C.C. (2d) 566. Although Kienapple was not referred to in
the reasons of this Court, it had been argued in the Court of Appeal. McKinney
and others were charged and convicted of hunting out of season and hunting at
night with lights contrary to ss. 16(1) and 19(1), respectively, of the Wildlife
Act, R.S.M. 1970, c. W140. Both charges arose out of the same hunting
incident. O'Sullivan J.A. for the majority held that the case involved two
"delicts". Monnin J.A., dissenting on another issue, said that
hunting out of season and hunting with lights were two different "matters",
totally separate one from the other and not alternative one to the other. The
judges of the Court of Appeal all agreed that Kienapple was
inapplicable. Thus, notwithstanding there was but a single act of hunting,
there were distinct delicts, causes or matters which would sustain separate
convictions.
24. Numerous other cases can be cited to
illustrate that a single act of an accused can involve two or more delicts
against society which bear little or no connection the one to the other. R.
v. Logeman (1978), 5 C.R. (3d) 219 (B.C.C.A.) involved charges of driving
while suspended and impaired driving; R. v. Lecky (1978), 42 C.C.C. (2d)
406 (N.S. Co. Ct.), contributing to juvenile delinquency and trafficking in a
narcotic; R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65 (Nfld. C.A.),
breach of recognizance and possession of a narcotic; R. v. Pinkerton
(1979), 46 C.C.C. (2d) 284 (B.C.C.A.), breach of probation and common assault; R.
v. Père Jean Grégoire de la Trinité (1980), 60 C.C.C. (2d) 542 (Que. C.A.),
contempt of court and unlawfully detaining children. Notwithstanding that a
single act of the accused appears in each of these cases to have given rise to
two charges, Kienapple was held to be inapplicable. In my view, these
cases were correctly decided. If an accused is guilty of several wrongs, there
is no injustice in his or her record conforming to that reality. In short, I
agree with the following remarks of Lambert J.A. in R. v. Harrison
(1978), 7 C.R. (3d) 32 (B.C.C.A.), at p. 37:
It is not sufficient to
consider the charges and to ask whether conviction on one will involve
conviction on another. It is not sufficient to consider the facts and to ask
whether only one act is involved. The facts and the charges must be considered
together and in their relationship to each other.
There must be a relationship of sufficient proximity firstly as between
the facts, and secondly as between the offences, which form the basis of two or
more charges for which it is sought to invoke the rule against multiple
convictions.
(iii) Is it Sufficient that the Offences Share a
Common Element?
25. It has frequently been suggested that the
presence of a common element in the offences charged will be sufficient to
attract the Kienapple principle. Ewaschuk, supra, at p. 41 of his
1975 article on the rule against multiple convictions suggests:
If the offences stem from
the same act and have a common element or elements, then Kienapple
should apply.
The common element test rests on the proposition or principle that an
act which constitutes an element of an offence can only be used to sustain a
single conviction. It is thereafter "used up" for the purposes of the
criminal law. Mewett, supra, at pp. 383‑84, explained the Kienapple
case in this light:
Kienapple is as good an illustration as any. The offence on count one embraces
the actus reus of (i) sexual intercourse (ii) woman not his wife and
(iii) no consent. On count two, it embraces (i) sexual intercourse (ii) woman
not his wife and (iii) under fourteen. But two of the elements necessary under
count two have become, as Laskin, J., stated, res judicata‑‑they
are used up, leaving, on count 2 only the third element dangling in the air. The
acts (nouns) of the accused caused by his acting can only be used once‑‑either
for count one or count two but not both. Any acts not previously
adjudicated remain, but, detached from the now adjudicated other acts, could
not support a conviction.
(Emphasis added.)
26. This principle against the duplication of
elements appears to underlie a number of judicial decisions: see, for example, R.
v. Taylor (1979), 48 C.C.C. (2d) 523 (Nfld. C.A.), at pp. 537‑38 and R.
v. Allison, supra, at pp. 339‑40. But, like the "same
act" test, it fails to explain a number of cases which I believe were
correctly decided, such as McKinney and Logeman.
27. In any event, I observe that a common
element test has already been considered and rejected by this Court. In Côté
v. The Queen, supra, at p. 310, Fauteux C.J. wrote:
The fact that [a thief's]
possession is a common ingredient of both offences [i.e. theft and unlawful
possession] is no reason to exclude or ignore what is actually the crucial
factor distinguishing one from the other, and is of the essence of their
respective nature.
The majority in Côté thus pointed in the direction of a test
which focused not on the presence or absence of a common element, but on
the presence or absence of additional, distinguishing elements.
28. Indeed, such a focus is apparent even in
the Kienapple case. At page 755, Laskin J. specifically addressed the
elements that were different in the two offences for which the Crown sought
convictions:
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.
(Emphasis added.)
29. Most recently, in Krug v. The Queen,
[1985] 2 S.C.R. 255, this Court unmistakably focused on the presence of
distinguishing elements, rather than on the presence of shared elements, in
assessing the applicability of Kienapple. Krug was charged with robbery
under s. 302(d) and with various firearms offences including an offence
under s. 83(1)(a). Krug submitted that the Kienapple principle at
common law and as allegedly constitutionalized in ss. 7 and 11 (h) of the
Canadian Charter of Rights and Freedoms precluded convictions for the
firearms offences. His arguments regarding the s. 83 conviction were rejected
in a unanimous judgment, delivered by La Forest J.
30. La Forest J. adopted the following passage
from the reasons of Martin J.A. in R. v. Langevin (1979), 47 C.C.C. (2d)
138 (Ont. C.A.), at p. 145:
Notwithstanding that in
most cases of "armed robbery" the offender will have used the weapon,
none the less, s. 83(1), by making the use of a firearm an essential
element of the offence created by the subsection, unlike s. 122 which
required only that the offender have a firearm on his person, imports a
further element in addition to those which suffice to constitute theft while
armed with a firearm.
(Emphasis added.)
Or, as expressed by La Forest J. himself at pp. 262‑63:
[The doctrine of res
judicata] would apply to prevent conviction for both offences if the
difference between the two was limited solely to the fact that s. 83
particularizes the form of weapon since the specific weapon was, of course, the
weapon used in both offences. But s. 83 also requires that the firearms be used,
an act not necessarily encompassed in being armed with it, and there was
evidence of use apart from that of being armed. In short, to be convicted of
an offence under s. 83 it was necessary to prove that the accused did something
beyond what is required to establish the offence under s. 302(d).
(Emphasis added.)
31. It has been a consistent theme in the
jurisprudence from Quon, through Kienapple and Krug that
the rule against multiple convictions in respect of the same cause, matter or
delict is subject to an expression of Parliamentary intent that more than one
conviction be entered when offences overlap: see, in particular, McGuigan v.
The Queen, [1982] 1 S.C.R. 284. In Krug, La Forest J. was careful to
explain that the presence of additional, distinguishing elements was in itself
an expression of such an intent. No element which Parliament has seen fit to
incorporate into an offence and which has been proven beyond a reasonable doubt
ought to be omitted from the offender's accounting to society, unless that
element is substantially the same as, or adequately corresponds to, an element
in the other offence for which he or she has been convicted.
32. I conclude, therefore, that the
requirement of sufficient proximity between offences will only be satisfied if
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.
33. There is, however, a corollary to this
conclusion. Where the offences are of unequal gravity, Kienapple may bar
a conviction for a lesser offence, notwithstanding that there are additional
elements in the greater offence for which a conviction has been registered,
provided that there are no distinct additional elements in the lesser offence.
For example, in R. v. Loyer, [1978] 2 S.C.R. 631, Kienapple was
applied to bar convictions for possession of a weapon for the purpose of
committing an offence when convictions were entered for the more serious
offence of attempted armed robbery by use of a knife. Although the robbery
charges contained the element of theft which distinguished them from the
weapons charges, there were no elements in the weapons charges which were
additional to or distinct from those in the robbery charges. Accordingly, it
was appropriate for the Court to apply Kienapple to bar convictions on
the lesser weapons charges rather than on the robbery charges.
(iv) When is an Element of an Offence not
Additional or Distinct?
34. I now turn briefly to the question of when
an element of an offence sufficiently corresponds to another element so that it
cannot be regarded as additional or distinct. When can it be said that elements
are "substantially the same" or "alternative" the one to
the other? This is a question which defies precise answers. Differences of
degree are often important and, as La Forest J. has pointed out, abstract logic
must be supplemented by an awareness of practical considerations in
ascertaining Parliament's intention in creating different offences: Krug,
supra, p. 269. Without purporting to be exhaustive, I believe that there
are at least three ways in which sufficient correspondence between elements can
be found, each of which is subject always to the manifestation of a legislative
intent to increase punishment in the event that two or more offences overlap.
35. First, an element may be a
particularization of another element. In Krug, the Court was called upon
to consider not only the relationship between s. 83(1)(a) and s. 302(d),
as described above, but also the relationship between s. 83(1)(a) and s.
84. Section 84 made it an offence to point a firearm at a person. Section
83(1)(a), it will be recalled, made it an offence to use a firearm while
committing an indictable offence. The trial judge had characterized the element
of "pointing at a person" as an ingredient additional to
"use". This Court disagreed, saying, "It is obvious that
pointing a gun is a manner of using it" (p. 268). Accordingly, the Court
referred to pointing as a particularization of use. Under the circumstances, it
was difficult to believe that Parliament intended "automatically to make
the same objectionable behaviour the subject of two separate offences"
(p. 270).
36. In general, the particularization in one
offence of an element of another offence should not be regarded as a
distinguishing feature that renders Kienapple inapplicable. Parliament
may create offences of varying degrees of generality, with the objective (vis‑à‑vis
the more general offence) of ensuring that criminal conduct will not escape
punishment because of a failure of the drafters to think of each individual
circumstance in which the conduct might be committed, or with the objective (vis‑à‑vis
the more specific offence) of addressing with certainty particular conduct in
particular circumstances. In the absence of some indication of Parliamentary
intent that there should be multiple convictions or added punishment in the
event of an overlap, the particularization of an element ought not to be taken
as a sufficient distinction to preclude the operation of the Kienapple
principle.
37. A second way in which elements may
correspond relates to there being more than one method, embodied in more than
one offence, to prove a single delict. In R. v. Gushue (1976), 32 C.C.C.
(2d) 189 (Ont. C.A.), affirmed on other grounds, [1980] 1 S.C.R. 798, the
accused was charged under s. 124 with giving evidence in a judicial proceeding
that was contrary to his own previous evidence. He was also charged with
perjury contrary to s. 121. The Court reached the conclusion that convictions
under both offences would have infringed the Kienapple principle. I
agree. Although s. 121 and s. 124 have different elements, the difference is
clearly not a reflection of any Parliamentary intent to add extra punishment
when both offences can be proven. Section 124 is designed merely to facilitate
proof of false evidence having been given, notwithstanding that no one
particular statement can be proven false. Parliament has merely succumbed to
the imperatives of logic: if two contradictory statements are given, one of
them must be false and the delict of giving false evidence must have been
committed on one of the two occasions.
38. The third situation in which there is
sufficient correspondence between elements to sustain the Kienapple
principle is somewhat similar. It arises when Parliament in effect deems a
particular element to be satisfied by proof of a different nature, not
necessarily because logic compels that conclusion, but because of social policy
or inherent difficulties of proof. The Kienapple case itself affords one
example. There, as we have seen, the element of the victim's age served as a
substitute for the element of non‑consent. A girl of less than fourteen
years of age could not in Parliament's opinion meaningfully consent to sexual
intercourse. Another example is provided by Terlecki v. The Queen,
[1985] 2 S.C.R. 483. Although the case largely dealt with a procedural issue,
the Court's decision was predicated on the applicability of Kienapple as
between the offences of impaired driving contrary to s. 234 and "over
80" contrary to s. 236. Impairment is inherently difficult to prove, and
Parliament has deemed a certain proportion of alcohol in one's blood to
constitute an impairment of driving ability. The differences between the
elements of these offences are explained by an attempt to facilitate the
apprehension by the police or the conviction by the courts of persons who are
guilty of essentially the same wrongful conduct: see Leonoff and Deutscher, supra,
at p. 261. I believe that elements which serve only as an evidentiary proxy for
another element cannot be regarded as distinct or additional elements for the
purposes of the rule against multiple convictions.
39. I emphasize that in applying the above
criteria it is important not to carry logic so far as to frustrate the intent
of Parliament or as to lose sight of the overarching question whether the same
cause, matter or delict underlies both charges. For example, there exist
offences aimed at a particular evil which (in certain circumstances) contain as
an element the commission of some other offence directed toward an entirely
different wrong. Such was the relationship between the offences in Lecky,
Earle, Pinkerton and Père Jean Grégoire. In these cases,
it could be argued, a substantive offence was subsumed by a greater, generic
offence: Klinck, supra, at pp. 301‑02. To illustrate, the offence
of breach of probation contains as an element the non‑compliance with a
probation order which, as a matter of law, requires the accused to keep the
peace and be of good behaviour: s. 663(2). The fact that breach of probation is
an offence punishable by summary conviction (s. 666(1)) is a clear
indication that Parliament cannot have intended a conviction for that offence
to operate as a bar to a conviction for the substantive offence (which might
attract a far more severe penalty) merely because the substantive offence might
be regarded as a particularization of a failure to keep the peace and be of
good behaviour. Plainly, breach of probation is an offence designed to protect
the effective operation of the criminal justice system, a societal interest
which is entirely different from that protected by an offence such as assault.
Accordingly, Kienapple had no application in those four cases.
V
Applicability of the Kienapple Principle in the Present Case
40. As has been noted above, the respondent
Sandra Prince has been convicted of causing bodily harm to Bernice Daniels. She
has been charged with a second offence, namely, the manslaughter of Daniels'
child, arising out of the same act of stabbing. I should, perhaps, explain that
no question arises regarding the viability of a manslaughter charge founded on
an act prior to the victim's birth. Section 206(2) reads as follows:
206. ...
(2) A
person commits homicide when he causes injury to a child before or during its
birth as a result of which the child dies after becoming a human being.
The only issue before the Court, therefore, is the applicability of Kienapple.
41. I have no hesitation in concluding that
the requirement of a sufficient factual nexus is satisfied in the present
appeal. A single act of the accused grounds both charges. It is true that the
stabbing produced two separate consequences, the injury to Bernice Daniels and
the death of the child. But such matters as the consequences of an act, the
circumstances in which it was committed, or the status of the victim are most
appropriately considered in the analysis of the legal nexus requirement. For it
is only when consequences, circumstances, or status are incorporated into
elements of an offence that they are relevant.
42. Is there sufficient correspondence between
the elements of the two offences to sustain the operation of the rule against
multiple convictions? One offence contains as an essential ingredient the
causing of bodily harm to Bernice Daniels. The other offence requires proof of
the death of Daniels' child. I cannot see how either of these elements can be
subsumed into the other. There is no sense in which it can be said that one is
a particularization of the other or is designed to facilitate proof of the
other.
43. The respondent relies heavily on the Hagenlocher
case. The accused in Hagenlocher was charged with manslaughter and with
wilfully setting fire to a substance which was likely to cause a building to
catch fire contrary to s. 390. He had poured some vodka on a hotel bed and set
fire to it. The fire spread through the hotel, causing the death of one person
by asphyxiation and extensive property damage. On the facts it is evident that
the manslaughter charge was grounded in s. 205(5)(a), which reads:
205. ...
(5) A
person commits culpable homicide when he causes the death of a human being,
(a) by means of an
unlawful act
The unlawful act was the wilful setting fire to a substance. Assuming
that Hagenlocher was correctly decided, in my view the result can only
be justified if it is regarded as a case in which all the elements of the s.
390 offence were incorporated into a greater offence. The manslaughter charge
consisted of (i) an unlawful act, particularized as the setting of a fire
likely to cause a building to burn, and (ii) a consequence of that act, that
is, the death of a person. No elements of the s. 390 offence remained to
sustain a second conviction. If this Court adopted reasons inconsistent with
those I have just outlined, then I believe the Court erred. But, in my opinion,
this Court's approval of the reasoning below was restricted to the conclusion
that Kienapple applied in that case. I should add that to treat the
arson offence as a particularization of the "unlawful act"
requirement in s. 205 is, at best, at the very outer edges of the Kienapple
principle. However, the Court has not been asked to reconsider the correctness
of Hagenlocher in the present appeal, and I refrain from doing so.
44. Even if the manslaughter charge in the
case at bar is seen to be framed under s. 205(5)(a) rather than s. 206
the distinction between the present case and Hagenlocher is readily
apparent. The lesser offence in Hagenlocher proscribed only an unlawful
act, the setting of a fire. The lesser offence in the present case, on the
contrary, also proscribes particular consequences which lie at the heart of
that offence.
45. Although the above analysis suffices to
dispose of this appeal, I wish to underline that the conclusion I have reached
reflects the importance which the drafters of the Code have attached to
criminal conduct that results in bodily injury or death of the victim or
victims. Many of the provisions of the Criminal Code , particularly those
in respect of crimes of violence, contain an escalation of penalties for acts
of the accused that result in graver consequences than otherwise identical
conduct. Parliament's concern for the physical safety of the public would be
frustrated by holding that either of the respective elements of bodily injury
to Bernice Daniels or the death of the child were (to use the words of Laskin
J. in Kienapple) "meaningless as a distinguishing feature".
46. It is, moreover, of some interest to the
present case that the majority judgment in Kienapple at p. 750 referred
to the death of a victim of violent crime as a "new relevant
element". It is clear from this reference that the consequence of a
wrongful act of an accused is an "element" which is capable of
distinguishing two convictions in respect of a single unlawful act by an
accused.
47. Also of particular relevance to the
present appeal is a passage at pp. 744‑45 in which Laskin J. referred to
his conclusion in Kienapple in the following terms:
The
rationale of my conclusion that the charges must be treated as alternative if
there is 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.
(Emphasis added.)
It would appear from this passage that, at least in so far as crimes of
personal violence are concerned, the rule against multiple convictions is
inapplicable when the convictions relate to different victims. Indeed, I
believe it was never within the contemplation of the majority in Kienapple
that the rule enunciated therein would preclude two convictions for offences
respectively containing as elements the injury or death of two different
persons.
48. Society, through the criminal law, requires
Prince to answer for both the injury to Bernice Daniels and the death of the
child, just as it would require a person who threw a bomb into a crowded space
to answer for the multiple injuries and deaths that might result, and just as
it compels a criminally negligent driver to answer for each person injured or
killed as a result of his or her driving: see R. v. Birmingham and Taylor
(1976), 34 C.C.C. (2d) 386 (Ont. C.A.)
49. I have undertaken the analysis of the
present case as though the respondent were seeking to bar a conviction on the
lesser offence of causing bodily harm to Bernice Daniels. In fact, she seeks to
bar a conviction on the more serious charge of manslaughter, having already
been convicted of causing bodily harm. The Crown elected to proceed by way of
successive trials rather than seek joinder. Although I do not suggest that the
Crown did so in an effort to avoid the rule against multiple convictions, it is
perhaps worth emphasizing that the Kienapple principle cannot be avoided
by the simple expedient of proceeding in this fashion. Had I reached a
different conclusion on the principal issue in this appeal, it would
accordingly have been necessary to consider whether a trial on the more serious
charge would have been entirely precluded, or whether, by analogy to cases such
as Loyer and Terlecki, the trial should have been undertaken on
the understanding that a stay would be entered on the lesser offence in the
event of a conviction on the more serious offence. However, since I have
concluded that Kienapple has no application to the offences charged, I
need not address that issue.
50. Although it was not argued in this Court,
I wish to add that in my view it is normally appropriate for a superior court
to decline to grant a prerogative remedy on an interlocutory application in
respect of the rule against multiple convictions. That rule has proved to be a
fertile source of appeals. The delay engendered by an erroneous application of
the Kienapple principle prior to the conclusion of the trial is
regrettably illustrated by the present case. Prerogative remedies are
discretionary, and notwithstanding the possibility of jurisdictional error in
some cases, it would generally be preferable for superior courts to decline to
consider the merits of a Kienapple argument on an interlocutory
application.
51. I would allow the appeal, reverse the
decision of the Manitoba Court of Appeal granting a writ of certiorari
and an order quashing the indictment, and remit the matter for trial on the
manslaughter indictment.
Appeal allowed.
Solicitor for the appellant: The Department of the
Attorney General, Winnipeg.
Solicitors for the respondent: Nozick, Sinder &
Associates, Winnipeg.
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