Kienapple Principle: Difference between revisions

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[[fr:Principe_de_Kienapple]]
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==General Principles ==
==General Principles ==
The rule against multiple convictions, known typically as the "Kienapple" principle, prevents multiple convictions for a single criminal act.<ref>
The rule against multiple convictions, known typically as the "Kienapple" principle, prevents multiple convictions for a single criminal matter.<ref>
See ''R v Kienapple'', [http://canlii.ca/t/1twxz 1974 CanLII 14] (SCC), [1975] 1 SCR 729{{perSCC|Laskin J}}<br>
See {{CanLIIRP|Kienapple|1twxz|1974 CanLII 14 (SCC)|[1975] 1 SCR 729}}{{perSCC|Laskin J}}<br>
''R v Prince'', [http://canlii.ca/t/1ftr3 1986 CanLII 40], [1986] 2 SCR 480{{perSCC|Dickson CJ}}</ref>
{{CanLIIRP|Prince|1ftr3|1986 CanLII 40 (SCC)|[1986] 2 SCR 480}}{{perSCC|Dickson CJ}}<Br>
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".<ref>
R v Deslisle, 2003 BCCA 196 (CanLII) at para 12 (the principle "is designed to prevent multiple convictions arising from the same ‘matter’, ‘cause’ or ‘delict’")
''R v Heaney'', [http://canlii.ca/t/fx347 2013 BCCA 177] (CanLII){{perBCCA| Bennett JA}} at para 25<br>
</ref>
''R v Cook'', [http://canlii.ca/t/2c4qd 2010 ONSC 4534] (CanLII){{perONSC|Hill J}}
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."<ref>
{{CanLIIRx|Heaney|fx347|2013 BCCA 177 (CanLII)}}{{perBCCA| Bennett JA}}{{atL|fx347|25}}<br>
{{CanLIIRx|Cook|2c4qd|2010 ONSC 4534 (CanLII)}}{{perONSC|Hill J}}
</ref>
</ref>


'''Requirement for Kienapple'''<br>
; 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".<ref>
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."<ref>
''R v Wigman'', [http://canlii.ca/t/1ftnb 1985 CanLII 1] (SCC), [1987] 1 SCR 246{{TheCourt}} at p 256
{{CanLIIRP|Wigman|1ftnb|1985 CanLII 1 (SCC)|[1987] 1 SCR 246}}{{TheCourt}}{{atp|256}} (or p. 103 of CCC)<br>
{{supra1|Prince}} at paras 17 to 39
</ref>
</ref>


; Factual Nexus
; Factual Nexus
The two offence must "arise from the same ‘cause’, ‘matter’, or ‘delict’, and if there is sufficient proximity between the offences charged".<ref>
The two offence must "arise from the same ‘cause’, ‘matter’, or ‘delict’, and if there is sufficient proximity between the offences charged."<ref>
Wigman{{ibid}} at p. 256<br>
{{ibid1|Wigman}}{{atp|256}}<br>
''R v Bienvenue'', [http://canlii.ca/t/gvnlq 2016 ONCA 865] (CanLII){{TheCourt}} at para 9 ("The requisite factual nexus is established if the charges arise out of the same transaction.")<br>  
{{CanLIIRx|Bienvenue|gvnlq|2016 ONCA 865 (CanLII)}}{{TheCourtONCA}}{{atL|gvnlq|9}} ("The requisite factual nexus is established if the charges arise out of the same transaction.")<br>  
</ref>
The requirements of a factual nexus "will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges?"<ref>
{{supra1|Prince}} at para 24
</ref>
</ref>


There should be no "additional and distinguishing" element differentiating between the two offences.<ref>
There should be no "additional and distinguishing" element differentiating between the two offences.<ref>
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.”<br>
{{ibid1|Wigman}} ("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.”<br>
{{supra1|Bienvenue}} at para 9 ("The legal nexus is established if the offences constitute a single criminal wrong")<br>
{{supra1|Bienvenue}}{{atL|gvnlq|9}} ("The legal nexus is established if the offences constitute a single criminal wrong")<br>
</ref>
</ref>


The Kienapple principle will apply where the same transaction gives rise to convictions for two or more offences which have "substantially the same elements". <ref>
The Kienapple principle will apply where the same transaction gives rise to convictions for two or more offences which have "substantially the same elements."<ref>
''R v Kinnear'', [http://canlii.ca/t/1l0q2 2005 CanLII 21092] (ON CA){{perONCA|Doherty JA}} at para 25<br>
{{CanLIIRP|Kinnear|1l0q2|2005 CanLII 21092 (ON CA)|198 CCC (3d) 232}}{{perONCA-H|Doherty JA}}{{atL|1l0q2|25}}<br>
</ref>
</ref>


; Legal Nexus
; 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.<ref>{{supra1|Prince}} at para 34</ref>
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.<ref>
The question of legal nexus is a "nuanced" exercise.<ref>{{supra1|Cook}} at para 12</ref>  
{{supra1|Prince}}{{atL|1ftr3|34}}</ref>
The question of legal nexus is a "nuanced" exercise.<ref>
{{supra1|Cook}}{{atL|2c4qd|12}}</ref>  
Courts must "compare the constituent elements of the respective offences together with their societal purpose as may be established by statutory and jurisprudential interpretation."<ref>
Courts must "compare the constituent elements of the respective offences together with their societal purpose as may be established by statutory and jurisprudential interpretation."<ref>
{{supra1|Cook}} at para 12</ref> The focus is upon the “the presence or absence of additional distinguishing elements" rather than simply matching and comparing offence elements.<ref>
{{supra1|Cook}}{{atL|2c4qd|12}}</ref>
{{supra1|Cook}} at para 12</ref>
The focus is upon the “the presence or absence of additional distinguishing elements" rather than simply matching and comparing offence elements.<ref>
{{supra1|Cook}}{{atL|2c4qd|12}}</ref>


Kienapple will not apply where:<ref>
Even where there are no distinguishing elements, the requirement of legal nexus is not necessarily satisfied.<REf>
{{supra1|Heaney}} at para 26<br>
Prince, paras. 27-39<br>
{{CanLIIRP|Kinnear|1l0q2|2005 CanLII 21092 (ON CA)|198 CCC (3d) 232}}{{atL|1l0q2|38}}
</ref> Kienapple will not apply where:<ref>
{{supra1|Heaney}}{{atL|fx347|26}}<br>
Prince at paras. 23-24 & 39<br>
</ref>
</ref>
# where the offences are designed to protect different societal interests,  
# where the offences are designed to protect different societal interests, "evils", or "wrongs",
# where the offences concern violence against different victims, or
# where the offences concern violence against different victims, or
# where the offences proscribe different consequences.
# where the offences proscribe different consequences.


Comparisons of penalties between offences is a factor to consider for the legal nexus.<ref>
Comparisons of penalties between offences is a factor to consider for the legal nexus.<ref>
Bienvenue{{ibid}} at para 15<br>
{{ibid1|Bienvenue}}{{atL|gvnlq|15}}<br>
</ref>
</ref>


See also: ''R v Cook'', [http://canlii.ca/t/2c4qd 2010 ONSC 4534] (CanLII){{perONSC|Hill J}}
See also: {{CanLIIRx|Cook|2c4qd|2010 ONSC 4534 (CanLII)}}{{perONSC|Hill J}}


'''Effect of Principle'''<br>
; Effect of Principle
Where Kienapple applies, the offence which is conditionally stayed is the “lesser” of the two.<ref>R v JF [http://canlii.ca/t/21bgx 2008 SCC 60] (CanLII), [2008] 3 SCR 215{{perSCC|Fish J}}<br>
Where Kienapple applies, the offence which is conditionally stayed is the “lesser” of the two.<ref>
{{supra1|Kinnear}} at para 25 ("accused should be convicted of only the most serious of the offences. The other(s) should be stayed.")</ref>
{{CanLIIRP|JF|21bgx|2008 SCC 60 (CanLII)|[2008] 3 SCR 215}}{{perSCC-H|Fish J}}<br>
{{supra1|Kinnear}}{{atL|1l0q2|25}} ("accused should be convicted of only the most serious of the offences. The other(s) should be stayed.")</ref>


; Procedure
; 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.<ref> R v Sullivan [http://canlii.ca/t/1fslr 1991 CanLII 85] (SCC), [1991] 1 SCR 489{{perSCC|Lamer CJ}}</ref>
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.<ref>  
{{CanLIIRP|Sullivan|1fslr|1991 CanLII 85 (SCC)|[1991] 1 SCR 489}}{{perSCC|Lamer CJ}}</ref>


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.<ref>
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.<ref>
e.g. ''R v Nottebrock'', [http://canlii.ca/t/g73b3 2014 ABQB 318] (CanLII){{perABQB| Wittmann CJ}}
e.g. {{CanLIIRx|Nottebrock|g73b3|2014 ABQB 318 (CanLII)}}{{perABQB| Wittmann CJ}}
</ref>
</ref>


Line 63: Line 81:


==Specific Offences==
==Specific Offences==
The following offences have been found to be subject of the Kienapple Principle in certain circumstances:
The following offences have been found to be subject to the Kienapple Principle in certain circumstances:
* theft and possession<ref>
* theft and possession<ref>
''R v Francis'', [http://canlii.ca/t/fm8z3 2011 ONSC 4323] (CanLII){{perONSC|Archibald J}}
{{CanLIIRx|Francis|fm8z3|2011 ONSC 4323 (CanLII)}}{{perONSC|Archibald J}}
</ref>
</ref>


The following offences have be found not to be subject of the Kienapple Principle:
The following offences have been found not to be subject to the Kienapple Principle:
* Impaired driving, dangerous driving and criminal negligence<ref>
* Impaired driving, dangerous driving and criminal negligence<ref>
''R v Ramage'', [http://canlii.ca/t/2bkq5 2010 ONCA 488] (CanLII){{perONCA|Doherty JA}}
{{CanLIIRP|Ramage|2bkq5|2010 ONCA 488 (CanLII)|257 CCC (3d) 261}}{{perONCA-H|Doherty JA}}
</ref>
</ref>
* aggravated sexual assault and choking<ref>
* aggravated sexual assault and choking<ref>
''R v Hill'', [http://canlii.ca/t/2cmx3 2010 ONSC 5150] (CanLII){{perONSC| Bryant J}}
{{CanLIIRP|Hill|2cmx3|2010 ONSC 5150 (CanLII)|OJ No 3956}}{{perONSC|Bryant J}}
</ref>
* Possession of a prohibited firearm with accessible ammo is not an included offence to possession of a loaded firearm.<ref>
{{CanLIIRP|Wong|frskp|2012 ONCA 432 (CanLII)|293 OAC 30}}{{perONCA|Weiler JA}}
</ref>
* group sexual assault and sexual assault with a weapon are different enough offences not to be captured by Kienapple.<ref>
{{CanLIIR|RM|j614z|2020 ONCA 231 (CanLII)}}{{perONCA|Hourigan JA}}
</ref>
* sexual interference and sexual assault are often kienappled.<ref>
{{CanLIIR|SDC|k0vh5|2023 ONSC 6010 (CanLII)}}{{perONSC|Shaw J}}
</ref>
 
; Unlawful Confinement
A conviction for both kidnapping and unlawful confinement should be subject to the Kienapple principle and one of the two offences should be stayed.<ref>
{{CanLIIRx|Dhillon|gxj7c|2017 ONSC 900 (CanLII)}}{{perONSC|Sproat J}}{{atL|gxj7c|104}}<br>
</ref>
</ref>


Latest revision as of 14:27, 14 July 2024

This page was last substantively updated or reviewed January 2018. (Rev. # 95444)

General Principles

The rule against multiple convictions, known typically as the "Kienapple" principle, prevents multiple convictions for a single criminal matter.[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] The requirements of a factual nexus "will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges?"[5]

There should be no "additional and distinguishing" element differentiating between the two offences.[6]

The Kienapple principle will apply where the same transaction gives rise to convictions for two or more offences which have "substantially the same elements."[7]

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.[8] The question of legal nexus is a "nuanced" exercise.[9] Courts must "compare the constituent elements of the respective offences together with their societal purpose as may be established by statutory and jurisprudential interpretation."[10] The focus is upon the “the presence or absence of additional distinguishing elements" rather than simply matching and comparing offence elements.[11]

Even where there are no distinguishing elements, the requirement of legal nexus is not necessarily satisfied.[12] Kienapple will not apply where:[13]

  1. where the offences are designed to protect different societal interests, "evils", or "wrongs",
  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.[14]

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.[15]

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.[16]

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.[17]

  1. ↑ See R v Kienapple, 1974 CanLII 14 (SCC), [1975] 1 SCR 729, per Laskin J
    R v Prince, 1986 CanLII 40 (SCC), [1986] 2 SCR 480, per Dickson CJ
    R v Deslisle, 2003 BCCA 196 (CanLII) at para 12 (the principle "is designed to prevent multiple convictions arising from the same ‘matter’, ‘cause’ or ‘delict’")
  2. ↑ R v Heaney, 2013 BCCA 177 (CanLII), per Bennett JA, at para 25
    R v Cook, 2010 ONSC 4534 (CanLII), per Hill J
  3. ↑ R v Wigman, 1985 CanLII 1 (SCC), [1987] 1 SCR 246, per curiam, at p. 256 (or p. 103 of CCC)
    Prince, supra at paras 17 to 39
  4. ↑ Wigman, ibid., at p. 256
    R v Bienvenue, 2016 ONCA 865 (CanLII), per curiam, at para 9 ("The requisite factual nexus is established if the charges arise out of the same transaction.")
  5. ↑ Prince, supra at para 24
  6. ↑ 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")
  7. ↑ R v Kinnear, 2005 CanLII 21092 (ON CA), 198 CCC (3d) 232, per Doherty JA, at para 25
  8. ↑ Prince, supra, at para 34
  9. ↑ Cook, supra, at para 12
  10. ↑ Cook, supra, at para 12
  11. ↑ Cook, supra, at para 12
  12. ↑ Prince, paras. 27-39
    R v Kinnear, 2005 CanLII 21092 (ON CA), 198 CCC (3d) 232, at para 38
  13. ↑ Heaney, supra, at para 26
    Prince at paras. 23-24 & 39
  14. ↑ Bienvenue, ibid., at para 15
  15. ↑ R v JF, 2008 SCC 60 (CanLII), [2008] 3 SCR 215, per Fish J
    Kinnear, supra, at para 25 ("accused should be convicted of only the most serious of the offences. The other(s) should be stayed.")
  16. ↑ R v Sullivan, 1991 CanLII 85 (SCC), [1991] 1 SCR 489, per Lamer CJ
  17. ↑ e.g. R v Nottebrock, 2014 ABQB 318 (CanLII), per Wittmann CJ

Specific Offences

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

  • theft and possession[1]

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

  • Impaired driving, dangerous driving and criminal negligence[2]
  • aggravated sexual assault and choking[3]
  • Possession of a prohibited firearm with accessible ammo is not an included offence to possession of a loaded firearm.[4]
  • group sexual assault and sexual assault with a weapon are different enough offences not to be captured by Kienapple.[5]
  • sexual interference and sexual assault are often kienappled.[6]
Unlawful Confinement

A conviction for both kidnapping and unlawful confinement should be subject to the Kienapple principle and one of the two offences should be stayed.[7]

  1. ↑ R v Francis, 2011 ONSC 4323 (CanLII), per Archibald J
  2. ↑ R v Ramage, 2010 ONCA 488 (CanLII), 257 CCC (3d) 261, per Doherty JA
  3. ↑ R v Hill, 2010 ONSC 5150 (CanLII), OJ No 3956, per Bryant J
  4. ↑ R v Wong, 2012 ONCA 432 (CanLII), 293 OAC 30, per Weiler JA
  5. ↑ R v RM, 2020 ONCA 231 (CanLII), per Hourigan JA
  6. ↑ R v SDC, 2023 ONSC 6010 (CanLII), per Shaw J
  7. ↑ R v Dhillon, 2017 ONSC 900 (CanLII), per Sproat J, at para 104

See Also

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