Kienapple and Convictions for Forcible Confinement and Sexual Assault
Where the accused is convicted of both unlawful
confinement (s. 279(2), Code) and sexual assault (s. 271, Code), and the
confinement of the complainant forms an integral part of the conviction for
sexual assault, a sufficient factual and legal nexus between the two
offences exists to trigger the application of the Kienapple principle.
The conviction on the charge of unlawful confinement is, therefore, to
be conditionally stayed.
R. v. Palmer-Coke, 2019 ONCA 106 (obiter);
R. v. Alli, 1996
CanLII 363 (Ont. C.A.): “We are, however, of the opinion that any
confinement of the complainant formed an integral part of the convictions for
sexual assault or assault simpliciter. By virtue of the principle
enunciated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975]
1 S.C.R. 729 the conviction on the charge of unlawful confinement cannot stand.
(See R. v. D. (S.) (1992), 1992 CanLII 7556 (ON CA), 10
O.R. (3d) 402 (Ont. C.A.)).”
See generally R. v.
Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
Written by Stuart O’Connell (All rights reserved to
author).
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