KIENAPPLE PRINCIPLE
Supreme Court of Canada
... the rule against multiple convictions, or the Kienapple principle [from the decision in
R. v. Kienapple (1974), [1975] 1 S.C.R. 729], “proposes that an individual should not be subjected to more than one conviction arising out of the same ‘cause or matter’ or the same ‘delict’, consisting of a single criminal act committed in circumstances where the offences alleged are comprised of the same or substantially the same facts and elements”: see Jordan, “Application and Limitations of the Rule Prohibiting Multiple Convictions: Kienapple v. The Queen to R. v. Prince” (1985) 14 Man. L.J. 341.
As Laskin J. (as he then was), for the majority, in
R. v. Kienapple, supra, pointed out, the rule formulated in that case is a logical application of res judicata.
R. v. Barnes | (westlaw Canada)
1991 CarswellBC 11 at para. 45, 46 | (Westlaw Canada)
L’Heureux-Dubé J. (dissenting in part) |
Multiple convictions are only precluded under the Kienapple principle if they arise from the same “cause”, “matter”, or “delict”, and if there is sufficient proximity between the offences charged. 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.
R. v. Wigman | (westlaw Canada)
1987 CarswellBC 698 at para. 17 | (Westlaw Canada)
Dickson C.J.C., Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest JJ.
British Columbia
The Kienapple principle rests on the decision of the Supreme Court of Canada in
Kienapple v. R.[1975] 1 S.C.R. 729... as that decision was explained in a unanimous judgment of a seven-member division of that Court, delivered by Chief Justice Dickson in
R. v. Prince[1986] 2 S.C.R. 480...
In
R. v. Prince, Chief Justice Dickson outlined the double test in these words at p. 495 [S.C.R]:
There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions.
. . . . .
... the requirement of sufficient proximity between the 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 ought to be precluded by the Kienapple principle.
There is, however, a corollary to this conclusion. Where the offences are of unequal gravity, Kienapple may bar a conviction for a lessor 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.
... there are four clear keys to when the Kienapple principle should be applied, other than the long-standing case of included offences, ...:
(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 not distinct additional elements in the lesser offence
. . . . .
(2) Where an element of one offence is a particularization of essentially the same element in the other offence ...
(3) Where there is more than one method, embodied in more than one offence, to prove a single criminal act ...
(4) Where Parliament has deemed a particular element to be satisfied on proof of another element ...
R. v. Andrew | (westlaw Canada)
1990 CarswellBC 129 at para. 9-11 | (Westlaw Canada)
Lambert J.A.
Ontario
This appeal engages the Kienapple principle, which provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the most serious offence:
R. v. Kienapple (1974), 1974 CarswellOnt 8 (S.C.C.); and
R. v. Kinnear (2005), 2005 CarswellOnt 2423 (Ont. C.A.), at para. 28.
The Kienapple principle is designed to protect against undue exercise by the Crown of its power to prosecute and punish: R. v. Kinnear, at para. 29. It applies where there is both a factual and legal nexus between the offences:
R. v. Prince (1986), 1986 CarswellMan 357. The requisite factual nexus between the offences is established if the charges arise out of the same transaction, whereas the legal nexus is established if the offences constitute a single criminal wrong:
R. v. Kinnear, at para. 32.
R. v. Rocheleau | (westlaw Canada)
2013 CarswellOnt 15484 at para. 24 | (Westlaw Canada)
Tulloch J.A. (Doherty, Goudge, Cronk and Blair JJ.A. concurring)
The Kienapple principle provides that where the physical acts related to one count are identical to those that pertain to a second charge, the rule against multiple convictions is engaged and a stay of proceedings is entered.
R. v. C. (M.) | (westlaw Canada)
2012 CarswellOnt 4918 at para. 21 | (Westlaw Canada)
Thorburn J.