Kienapple (The Rule Against Multiple Convictions for the Same Criminal Wrong)

In R. v. Kienapple 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, the Court articulated, and applied (and arguably expanded) the common law theory of res judicata to preclude multiple convictions for the same criminal wrong.

Kienapple provides that where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences.

R. v. Kienapple, supra, at p. 540. 

The other charges should be conditionally stayed.

R. v. P. (D.W.) (1989), 1989 CanLII 71 (SCC), 49 C.C.C. (3d) 417 (S.C.C.). 

Justification for the Rule

The rule which is linked to the court’s power to protect against abuses of its process is designed to “protect an individual from an undue exercise by the Crown of its power to prosecute and punish”.

Kienapple, at p. 540

When the Rule Operates

The Kienapple rule precludes multiple convictions for different offences only where there is both a factual and a legal nexus connecting the offences.  The factual nexus is established where the charges arise out of the same transaction.  The legal nexus exists if the offences constitute a single wrong or delict. 

THE FACTUAL NEXUS INQUIRY (“the same transaction”)

The factual nexus is most obvious where offences arise out of the same act. A transaction can, however, include more than a single isolated act:  Prince at p. 44. 

The adequacy of the factual nexus between offences for the purposes of invoking the rule in Kienapple cannot be determined in the abstract, but must be resolved on a case-by-case basis, 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. 

Ibid.

THE LEGAL NEXUS INQUIRY

The legal nexus exists if the offences constitute a single wrong or delict. (Prince)

Sufficient Proximity between the Offences:  Is there an additional and distinguishing element?

The requirement for legal proximity will be satisfied not by looking at common elements, but by the presence or absence of additional distinguishing elements:

“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.”

Prince, supra, at 49.                                    

Not every difference in the elements of the offences will preclude the Kienapple rule.

R. v. Kinnear, 2005 CanLII 21092 (ON CA), at para. 35.

Instances when the Kienapple principle should be applied (non-exhaustive)

1) 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: Prince p.499.

2) Where an element of one offence is a particularization of essentially the same element in the other offence: Prince, p.500.

[For instance, in R. v. Krug, 1985 CanLII 2 (SCC), [1985] 2 S.C.R. 255 the Court ruled that convictions could not be upheld for both using a firearm in the commission of an indictable offence and unlawfully pointing a firearm].

3) Where there is more than one method, embodied in more than one offence, to prove a single criminal act: Prince, p.501. [I have used "criminal act" instead of "delict"].

4) Where Parliament has deemed a particular element to be satisfied on proof of another element: Prince p.501.

Instances that will defeat a claim of sufficient legal nexus

If the offences target different societal interests, different victims, or prohibit different consequences, it cannot be said that the distinctions between the offences amount to nothing more than a different way of committing the same wrong.  Such distinctions will defeat a claim that there is a sufficient legal nexus to warrant application of the Rule.

Prince at pp. 51-54, Kinnear, at para. 39.

The Use of Conditional Stays

A court should enter a conditional stay of proceedings in respect of the conviction that is barred by Kienapple rule.  

The stay is conditional on the final disposition of the more serious charge on which the accused has been convicted.  If the accused's appeal from the conviction on that charge is dismissed or the accused does not appeal within the specified times, the conditional stay becomes permanent and is tantamount to a judgment or verdict of acquittal for the purpose of an appeal or a plea of autrefois acquit. 

If, on the other hand, the accused's appeal from the conviction is successful, the conditional stay dissolves and the appellate courts, while allowing the appeal, can remit to the trial court the count or counts which were conditionally stayed because of the Kienapple principle to be dealt with as findings of guilt.

A permanent stay should be recorded on the "Kienappled" offence to reflect that reasons of policy and not the accused's lack of culpability account for the refusal to enter a conviction.

R. v. Provo, [1989] 2 SCR 3, 1989 CanLII 71 (SCC).