Kienapple Principle: Difference between revisions
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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 act.<ref> | ||
See R v Kienapple, [http://canlii.ca/t/1twxz 1974 CanLII 14] (SCC), [1975] 1 SCR 729 | See R v Kienapple, [http://canlii.ca/t/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</ref> | R v Prince, [http://canlii.ca/t/1ftr3 1986 CanLII 40], [1986] 2 SCR 480{{perSCC|Dickson CJ}}</ref> | ||
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> | 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 Heaney, [http://canlii.ca/t/fx347 2013 BCCA 177] (CanLII) at para 25<br> | R v Heaney, [http://canlii.ca/t/fx347 2013 BCCA 177] (CanLII){{perBCCA| Bennett JA}} at para 25<br> | ||
R v Cook, [http://canlii.ca/t/2c4qd 2010 ONSC 4534] (CanLII) | R v Cook, [http://canlii.ca/t/2c4qd 2010 ONSC 4534] (CanLII){{perONSC|Hill J}} | ||
</ref> | </ref> | ||
'''Requirement for Kienapple'''<Br> | '''Requirement for Kienapple'''<Br> | ||
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 at p 256 | R v Wigman, [http://canlii.ca/t/1ftnb 1985 CanLII 1] (SCC), [1987] 1 SCR 246{{TheCourt}} at p 256 | ||
</ref> | </ref> | ||
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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> | Wigman{{ibid}} at p. 256<br> | ||
R v Bienvenue, [http://canlii.ca/t/gvnlq 2016 ONCA 865] (CanLII) at para 9 ("The requisite factual nexus is established if the charges arise out of the same transaction.")<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> | ||
</ref> | </ref> | ||
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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) at para 25<br> | R v Kinnear, [http://canlii.ca/t/1l0q2 2005 CanLII 21092] (ON CA){{perONCA|Doherty JA}} at para 25<br> | ||
</ref> | </ref> | ||
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</ref> | </ref> | ||
See also: R v Cook, [http://canlii.ca/t/2c4qd 2010 ONSC 4534] (CanLII) | See also: R v Cook, [http://canlii.ca/t/2c4qd 2010 ONSC 4534] (CanLII){{perONSC|Hill J}} | ||
'''Effect of Principle'''<br> | '''Effect of Principle'''<br> | ||
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<br> | 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> | ||
Kinnear{{supra}} at para 25 ("accused should be convicted of only the most serious of the offences. The other(s) should be stayed.")</ref> | Kinnear{{supra}} at para 25 ("accused should be convicted of only the most serious of the offences. The other(s) should be stayed.")</ref> | ||
'''Procedure'''<br> | '''Procedure'''<br> | ||
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 | 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> | ||
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) | e.g. R v Nottebrock, [http://canlii.ca/t/g73b3 2014 ABQB 318] (CanLII){{perABQB| Wittmann CJ}} | ||
</ref> | </ref> | ||
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==Specific Offences== | ==Specific Offences== | ||
The following offences have | The following offences have been found to be subject of 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) | R v Francis, [http://canlii.ca/t/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 be found not to be subject of 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) | R v Ramage, [http://canlii.ca/t/2bkq5 2010 ONCA 488] (CanLII){{perONCA|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) | R v Hill, [http://canlii.ca/t/2cmx3 2010 ONSC 5150] (CanLII){{perONSC| Bryant J}} | ||
</ref> | </ref> | ||
Revision as of 18:40, 25 November 2018
- < Procedure and Practice
- < Trials
- < Verdicts
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]
- where the offences are designed to protect different societal interests,
- where the offences concern violence against different victims, or
- 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]
- ↑
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, per Dickson CJ - ↑
R v Heaney, 2013 BCCA 177 (CanLII), per Bennett JA at para 25
R v Cook, 2010 ONSC 4534 (CanLII), per Hill J - ↑ R v Wigman, 1985 CanLII 1 (SCC), [1987] 1 SCR 246, per curiam at p 256
- ↑
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.")
- ↑
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")
- ↑
R v Kinnear, 2005 CanLII 21092 (ON CA), per Doherty JA at para 25
- ↑ Prince, supra at para 34
- ↑ Cook, supra at para 12
- ↑ Cook, supra at para 12
- ↑ Cook, supra at para 12
- ↑
Heaney, supra at para 26
- ↑
Bienvenue, ibid. at para 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.") - ↑ R v Sullivan 1991 CanLII 85 (SCC), [1991] 1 SCR 489, per Lamer CJ
- ↑ e.g. R v Nottebrock, 2014 ABQB 318 (CanLII), per Wittmann CJ
Specific Offences
The following offences have been 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]
- ↑ R v Francis, 2011 ONSC 4323 (CanLII), per Archibald J
- ↑ R v Ramage, 2010 ONCA 488 (CanLII), per Doherty JA
- ↑ R v Hill, 2010 ONSC 5150 (CanLII), per Bryant J