Kienapple Principle

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General Principles

The rule against multiple convictions, known typically as the "Kienapple" principle, prevents multiple convictions for a single criminal act.[1] That is to say that Kienapple will apply where "the offences charged do not describe different criminal wrongs, but instead describe different ways of committing the same criminal wrong".[2]

Requirement for Kienapple
There are two components to the Kienapple principle. Before it can be applied there must be "both a factual and legal nexus between the charges".[3]

Factual Nexus
The two offence must "arise from the same ‘cause’, ‘matter’, or ‘delict’, and if there is sufficient proximity between the offences charged".[4]

There should be no "additional and distinguishing" element differentiating between the two offences.[5]

The Kienapple principle will apply where the same transaction gives rise to convictions for two or more offences which have "substantially the same elements". [6]

Legal Nexus
There must be a legal connection (ie. nexus) between the offences as well as a factual connection. The offence elements must have sufficient correspondence with each other. That is, they must be “substantially” the same.[7] The question of legal nexus is a "nuanced" exercise.[8] Courts must "compare the constituent elements of the respective offences together with their societal purpose as may be established by statutory and jurisprudential interpretation."[9] The focus is upon the “the presence or absence of additional distinguishing elements" rather than simply matching and comparing offence elements.[10]

Kienapple will not apply where:[11]

  1. where the offences are designed to protect different societal interests,
  2. where the offences concern violence against different victims, or
  3. where the offences proscribe different consequences.

Comparisons of penalties between offences is a factor to consider for the legal nexus.[12]

See also: R v Cook, 2010 ONSC 4534 (CanLII) per Hill J.

Effect of Principle
Where Kienapple applies, the offence which is conditionally stayed is the “lesser” of the two.[13]

Procedure
In trial, the court cannot consider the issue of Kienapple until the court first is satisfied that the Crown has proven the offender had committed all of the offences at issue.[14]

Where two offences are admitted but believed to be subject to the Kienapple principled and stayed, the accused may accept responsibility for the offence and seek a stay instead of entering a conviction on the charge.[15]

  1. See R v Kienapple, 1974 CanLII 14 (SCC), [1975] 1 SCR 729 per Laskin J
    R v Prince, 1986 CanLII 40, [1986] 2 SCR 480
  2. R v Heaney, 2013 BCCA 177 (CanLII) at para 25
    R v Cook, 2010 ONSC 4534 (CanLII)
  3. R v Wigman, 1985 CanLII 1 (SCC), [1987] 1 SCR 246 at p 256
  4. Wigman, ibid. at p. 256
    R v Bienvenue, 2016 ONCA 865 (CanLII) at para 9 ("The requisite factual nexus is established if the charges arise out of the same transaction.")
  5. Wigman, ibid. ("This requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.”
    Bienvenue, supra at para 9 ("The legal nexus is established if the offences constitute a single criminal wrong")
  6. R v Kinnear, 2005 CanLII 21092 (ON CA) at para 25
  7. Prince, supra at para 34
  8. Cook, supra at para 12
  9. Cook, supra at para 12
  10. Cook, supra at para 12
  11. Heaney, supra at para 26
  12. Bienvenue, ibid. at para 15
  13. R v JF 2008 SCC 60 (CanLII), [2008] 3 SCR 215
    Kinnear, supra at para 25 ("accused should be convicted of only the most serious of the offences. The other(s) should be stayed.")
  14. R v Sullivan 1991 CanLII 85 (SCC), [1991] 1 SCR 489 per Lamer CJ
  15. e.g. R v Nottebrock, 2014 ABQB 318 (CanLII)

Specific Offences

The following offences have be found to be subject of the Kienapple Principle in certain circumstances:

  • theft and possession[1]

The following offences have be found not to be subject of the Kienapple Principle:

  • Impaired driving, dangerous driving and criminal negligence[2]
  • aggravated sexual assault and choking[3]
  1. R v Francis, 2011 ONSC 4323 (CanLII)
  2. R v Ramage, 2010 ONCA 488 (CanLII)
  3. R v Hill, 2010 ONSC 5150 (CanLII)

See Also