COURT OF APPEAL FOR ONTARIO
Rosenberg, Watt and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Richwood Adjei
Appellant
James Stribopoulos for the appellant
Marcella Henschel, for the respondent
Heard: April 22, 2013
On appeal from convictions entered by Justice Edward P. Belobaba of the Superior Court of Justice, sitting without a jury, on August 31, 2011, with reasons reported at 2011 ONSC 3372.
1When Stacey Adjei died in hospital of complications from sickle cell disease, her brothers, Charles and Richwood, were with her. Her half-brother, Clifford, was not there.
2Charles and Richwood were angry at Clifford for not being at the hospital when their sister died. Charles phoned Clifford to tell him not to join the other family members at their mother’s house at 38 Driftwood Avenue to mourn their loss.
3Clifford ignored the warning, and, with his girlfriend, Dora, drove to his mother’s townhouse to join his brothers and other family members and friends. As he approached his mother’s house, Clifford called 911 and reported that Richwood had a gun.
4When the police arrived at Driftwood Avenue, they saw the Adjei brothers arguing in the courtyard outside the townhouse. The officers also saw Stephen Amofah, a friend of Charles Adjei, leave the townhouse carrying a black duffle bag with a Hockey Canada logo on it. The bag seemed to have something long and heavy in it. When Amofah saw the police, he took the bag back into the townhouse.
5The officers were invited into the townhouse. They found the black bag with the Hockey Canada logo on top of the washing machine. Inside the bag police found a sawed-off Winchester shotgun, an M-1 Carbine rifle, and a high capacity magazine suitable for use in the rifle.
6The trial judge found Richwood Adjei (the appellant) guilty of several offences arising out of the possession of the guns and ammunition, including breaches of prior probation and weapons prohibition orders. The appellant says his convictions should be set aside because the trial judge wrongly admitted a hearsay statement of a Crown witness, wrongly rejected his (the appellant’s) testimony because he exercised his right to silence prior to trial, and, in any event, entered some convictions in violation of the prohibition against multiple convictions.
7As these reasons explain, I would dismiss the appeal except for the entry of conditional stays on some counts in the indictment.
THE BACKGROUND FACTS
8The grounds of appeal advanced do not require an elaborate recitation of the evidence adduced at trial. A brief overview will suffice, with greater detail added where necessary in connection with the specific complaints of error.
9The contested ground at trial had to do with whether the Crown had proven that the appellant had knowledge of and control over, thus was in possession of, the guns and ammunition found in the duffle bag. No fingerprints were found on the firearms, the high capacity magazine, ammunition, or the duffle bag in which they were found.
The Hospital Visits
10Early in the morning of February 10, 2010, Clifford Adjei and his girlfriend, Dora, visited Clifford’s gravely ill sister, Stacey, at the hospital. The doctor told Clifford that he should have his mother return from Ghana as soon as possible. Clifford and Dora left the hospital to make arrangements to send money to Clifford’s mother so that she could return home. Clifford was required to report to a drug and alcohol rehab program later that morning. While he was complying with his reporting obligations, Stacey died.
The Telephone Argument
11The appellant and his brother, Charles, were with Stacey when she died. Charles was very annoyed that Clifford, as the eldest brother, had been absent for her passing. Charles telephoned Clifford and warned him not to return to their mother’s house if he (Clifford) “knew what was good for him”. Charles made it clear that he and the appellant did not want to see Clifford at their mother’s home.
The 911 Call
12As he and Dora approached his mother’s townhouse at 38 Driftwood Avenue, Clifford called 911 to report that the appellant had a “big, big, big, big gun” in the pocket of his pants. The call, which includes the sounds of an ongoing confrontation, was admitted as evidence at trial as part of the res gestae. Its admission is not challenged here.
The Police Response
13The police officers who responded to the 911 call saw Stephen Amofah hurry out of the townhouse carrying the black bag with the Hockey Canada logo. When Amofah made eye contact with the officers, he walked back inside the townhouse. The appellant remained outside.
The Finding of the Guns and the Ammunition
14In the duffle bag on top of the washing machine on the main floor of the townhouse, police found a sawed-off 12 gauge Winchester pump shotgun loaded with one round of ammunition, along with a cut-down M-1 semi-automatic rifle and a high capacity magazine suitable for use in the rifle. The rifle was not loaded. The magazine was empty.
The Arrests
15Police arrested the appellant and Stephen Amofah. Each was charged with firearms and related offences. Each was taken to 31 Division police station. Amofah, Clifford, and his girlfriend, Dora, gave videotaped statements.
The Case for the Crown at Trial
16To establish the contested issues of fact at trial, the Crown called Clifford, his girlfriend Dora, and Stephen Amofah. Each gave evidence that contradicted what they had told police in their video statements. The trial Crown sought to have their video statements admitted under the principled exception to the hearsay rule. Recantation of the statements established necessity. The trial judge held that the statements were reliable and admitted them as evidence. The statements, especially that of Stephen Amofah, became the centrepiece of the case for the Crown.
The Defence Case at Trial
17The appellant gave evidence at trial. He explained that, at his mother’s request, he moved out of her townhouse at the end of November, 2009 before his mother left for Ghana. He denied having any guns or any knowledge about the guns found by police.
18The appellant acknowledged that he anticipated trouble with Clifford’s arrival at their mother’s townhouse. He removed a sledgehammer, about 18 inches or two feet long and weighing between 20 and 35 pounds, from a storage closet and put it down in the front of his pants. When he heard somebody mention that Clifford had called the police, he threw the sledgehammer away onto the roof of an adjacent townhouse.
19The appellant’s mother confirmed the presence in the house of a long, thin hammer, about 18-22 inches in length. She described it as “not very heavy”. She had never seen a duffle bag.
THE GROUNDS OF APPEAL
20The appellant advances three grounds of appeal against conviction. As I would paraphrase those grounds, they are that the trial judge erred:
I. in admitting the videotaped statement of Stephen Amofah under the principled exception to the hearsay rule;
II. in rejecting the testimony of the appellant, in part at least, because the appellant had exercised his pre-trial right to silence and had not provided police with the exculpatory version of events he advanced at trial; and
III. in failing to enter conditional stays on several counts as a result of the application of the rule against multiple convictions for the same delict or matter.
Ground #1: The Admissibility of Amofah’s Out-of-Court Statement
21The first and principal ground of appeal requires a brief review of the context in which Amofah’s videotaped statement came to be proffered at trial as well as some details about the statement itself.
The Procedural Context
22Stephen Amofah testified as a witness for the Crown. The answers he gave in examination-in-chief, in particular his failure to adhere to the substance of what he had said in his post-arrest videotaped statement, prompted Crown counsel to apply for leave under s. 9(2) of the Canada Evidence Act to cross-examine him on the statement. The trial judge granted leave. Thereafter, the Crown applied to have the video statement admitted under the principled exception to the hearsay rule.
The Videotaped Statement
23Stephen Amofah, whom police had seen carrying the bag in which the guns, ammunition, and high capacity magazine were later found, was arrested at the same time as the appellant and charged with unlawful possession of firearms. He was advised of the reasons for his arrest and read his s. 10(b) Charter rights by the uniformed officers who had arrested him. He did not want to call a lawyer.
24Stephen Amofah was taken to 31 Division for further investigation. During a brief 12 minute conversation with investigating officers, about which the officers made notes, Amofah was again told the reasons for his arrest and re-advised of his right to counsel. He declined to call a lawyer. He said he did not need a lawyer because he had done nothing wrong. The officers read Amofah the primary and secondary police caution and he confirmed his understanding of both. An officer asked whether he consented to speak with them on video. Amofah responded: “Well, you said for me to clear my name, that’s what I had to do right?”
25As the videotaped interview began, investigators reminded Amofah of the reasons for his arrest and of his right to retain and instruct counsel without delay. Once again, Amofah declined to contact a lawyer. The investigators reiterated both the primary and secondary caution and confirmed Amofah’s understanding of them. He understood that he was not required to speak to the officers, but that if he did so, whatever he said would be recorded and could be given in evidence.
26Stephen Amofah’s statement was not under oath, nor was he warned about the consequences of providing a false statement. The statement was videotaped in its entirety. There was some brief interaction between Amofah and the police before beginning the recording, but this was introductory and not substantive in nature.
The Ruling of the Trial Judge
27The trial judge admitted Amofah’s videotaped statement under the principled exception to the hearsay rule. Necessity was not an issue: Amofah had recanted when giving evidence. The trial judge was also satisfied, despite the absence of an oath and warning about the consequences of making a false statement, that the statement satisfied the reliability requirement. The statement was videotaped in its entirety. Counsel for the appellant at trial acknowledged that the absence of an oath or affirmation “did not undermine the admissibility of the statement.” Stephen Amofah testified at trial. Defence counsel had a full opportunity to cross-examine him on the statement and at large.
The Arguments on Appeal
28For the appellant, Mr. Stribopoulos submits that the trial judge erred in his approach to the admissibility of the videotaped statement under the principled exception to the hearsay rule. In accordance with the majority judgment in R. v. Trieu (2005), 74 O.R. (3d) 481 (C.A.), the trial judge considered that the absence of an oath and warning was of only marginal significance in the assessment of the statement’s threshold reliability because the statement was videotaped in its entirety and Amofah could be fully cross-examined.
29Mr. Stribopoulos says that the majority holding in Trieu has been overtaken by the subsequent judgment of the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. He submits that Khelawon re-affirmed the earlier decision in R. v. B.(K.G.), [1993] 1 S.C.R. 740 including all three requirements that B.(K.G.) endorsed as essential before a prior statement of a witness may be admitted for substantive use under the principled exception to the hearsay rule. Absent satisfaction of the requirements in B.(K.G.), the trial judge was required to look beyond the circumstances surrounding the making of the statement and conduct a more global reliability assessment directed at the specific frailties in this case. Not only did the trial judge fail to conduct such an assessment, but he considered Amofah’s motive to fabricate as relevant to the ultimate reliability of the statement. Under Khelawon, this was wrong.
30For the respondent, Ms. Henschel begins with a reminder that under the principled exception to the hearsay rule, a party may satisfy the reliability requirement in either of two ways, neither of which excludes consideration of the other. Sometimes, the circumstances in which the statement was made alleviate any real concern about the truth of the statement. On other occasions, the hearsay nature of the statement causes no real concern because its truth and accuracy can nonetheless be sufficiently tested before the trier of fact.
31Ms. Henschel says that the procedural requirements of B.(K.G.) permit the truth and accuracy of the prior statement to be sufficiently tested. The other requirements of B.(K.G.), as that decision and others coming after it plainly state, are not strict conditions precedent to admissibility or intolerant of other indicia of reliability. In this case, Amofah was under arrest, apprised of the reasons for his arrest and of his right to retain and instruct counsel without delay. He knew that the statement was to be recorded and could be introduced in evidence. These factors impressed upon him the importance of telling the truth and amounted to the functional equivalent of an oath and warning. His interest in exculpating himself related to the ultimate reliability of the statement and was not a factor relevant for consideration on threshold reliability and admissibility. No further analysis of the likely truth of the statement was required under Khelawon.
The Governing Principles
32The principles that control determination of this ground of appeal are those concerned with satisfaction of the reliability requirement of the principled exception to the hearsay rule. The companion requirement of necessity, counsel agree, has been satisfied by Amofah’s recantation of his out-of-court statement: B.(K.G.), at pp. 796-797, and 799; Khelawon, at para. 75.
33The reliability requirement of the principled exception may be satisfied in either or both of two non-exclusive ways. There may be no real concern about the truth of the hearsay statement because of the circumstances in which the statement came about: Khelawon, at para. 62. A second way of fulfilling the reliability requirement is for the proponent to show that no real concern arises from the hearsay nature of the statement because, in the circumstances, the truth and accuracy of the statement can nonetheless be sufficiently tested: Khelawon, at para. 63.
34The circumstances in which a prior statement was made can provide sufficient guaranties of its trustworthiness if:
i. the statement was made under oath or solemn affirmation, following a warning about the existence of sanctions (for making a false statement) and the significance of the oath or affirmation;
ii. the statement is videotaped in its entirety; and
iii. the opposing party has a full opportunity to cross-examine the witness about the statement.
B.(K.G.), at para. 104. But these circumstances are not conditions precedent that must be met in order for the reliability requirement to be satisfied. Other circumstances may serve, for example, as a surrogate or proxy for the oath: B.(K.G.), at para. 96; Khelawon, at para. 45; R. v. U. (F.J.), [1995] 3 S.C.R. 764, at para. 40; and R. v. Youvarajah, 2013 SCC 41, at para. 30.
35Some authorities have considered whether the reliability requirement has been met in the case of recanting witnesses where prior statements have been videotaped, but are unsworn, and the witness has been available for full cross-examination before the trier of fact.
36In B.(K.G.), the court recognized that the oath was not an absolute requirement for a finding of reliability: B.(K.G.), at para. 95. Situations may arise where a judge concludes that, despite the absence of an oath, the prior statement is reliable: B.(K.G.), at para. 96. The other circumstances must be sufficient to impress upon the witness the importance of telling the truth: B.(K.G.), at paras. 96 and 104.
37In U.(F.J.), the prior statement was not made under oath and not videotaped, yet was held to be reliable because the contents of the statement were strikingly similar to those contained in an independent statement of the declarant’s father, the appellant. The only likely explanation was that both were telling the truth, thus the reliability requirement had been met: Khelawon, at para. 86.
38In Trieu, a majority of this court considered that in combination, a videotape of the recanting witness’ statement coupled with the opportunity for full cross-examination of the witness, went virtually “all of the way” to providing the trier of fact with the tools necessary to adequately assess reliability: Trieu, at para. 76. In the circumstances, the oath carried only a modest burden in the assessment of threshold reliability: Trieu, at para. 78.
39The Trieu majority considered that two types of evidence could constitute appropriate substitutes for an oath administered at the outset of the out-of-court statement:
i. evidence from which it can reasonably be inferred that, when the statement was made, the declarant appreciated the solemnity of the occasion and the importance of telling the truth; and
ii. external evidence, which is, at once, itself reliable and tends to confirm, in a meaningful way, the reliability of the out-of-court statements.
Trieu, at para. 85. Among the relevant factors in Trieu were the fact that the witness had been charged with an offence, cautioned, and understood his Charter rights and that the statement, in material respects, was similar to the statement of another. Striking similarity was not required: Trieu, at paras. 90 and 121.
40In the end, for out-of-court statements of non-accused witnesses to be admissible as evidence of the truth of their contents, the B.(K.G.) indicia are not the exclusive means of establishing threshold reliability. The threshold reliability of a non-accused witness’ prior inconsistent statement may be established by:
i. the presence of adequate substitutes for testing truth and accuracy (procedural reliability); and
ii. sufficient circumstantial guaranties of reliability or inherent trustworthiness (substantive reliability).
Khelawon, at paras. 61-63; R. v. Youvarajah, 2013 SCC 41, at para. 30. These two principal ways of establishing threshold reliability are not mutually exclusive: R. v. Devine, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22; Youvarajah, at para. 30.
The Principles Applied
41For reasons that I will develop, I would not give effect to this ground of appeal.
42First, Amofah’s out-of-court statement was videotaped in its entirety. Thus, the several indicia of credibility and reliability available to the judge as a trier of fact where a witness testifies at trial were available equally in connection with the out-of-court statement. The reproduction of the statement and the video recording eliminated the danger of inaccurate recounting, an important factor underlying the rule excluding hearsay evidence.
43Second, Stephen Amofah testified at trial. Trial counsel had full opportunity to cross-examine Amofah, an opportunity not circumscribed by any claimed memory deficits or assertions of privilege. The availability of the declarant for cross-examination goes a long way to satisfy the requirement of adequate substitutes for establishing threshold reliability: Khelawon, at para. 66. Availability of the non-accused witness for cross-examination is the most important factor supporting the admissibility of a prior inconsistent statement of that witness for the truth of its contents: R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 92 and 95; Youvarajah, at para. 35.
44Third, the absence of an oath and warning is not fatal to the admissibility of the out-of-court statement. The B.(K.G.) indicia, which include an oath and warning about sanctions for untruthfulness is one, are neither conditions precedent to admissibility nor are they exclusive means of establishing threshold reliability: Khelawon, at paras. 61-63; Youvarajah, at para. 30. Other circumstantial guaranties may suffice: B.(K.G.), at para. 104.
45Fourth, although the witness in this case was not under oath and had not been warned about the consequences of untruthfulness, some circumstantial guarantees of reliability were present when the statement was made. Amofah was under arrest for unlawful possession of firearms, a serious offence. He had been told repeatedly about the reasons for his arrest and about his right to retain and instruct counsel without delay. He knew he did not have to speak to the police. He knew that whatever he said would be completely recorded and could be used as evidence. The imperative of speaking the truth and the consequences of lying could scarcely have been lost on him.
46Fifth, in its material features, Amofah’s statement was consistent with the contents of Clifford Adjei’s 911 call of which Amofah could have had no knowledge when he gave his statement.
47Finally, trial counsel for the appellant acknowledged that the absence of an oath per se did not undermine the admissibility of Stephen Amofah’s out-of-court statement as evidence of the truth of its contents. Rather, counsel submits that a global reliability assessment was required prior to admitting Amofah’s statement. For reasons I have given, I disagree and would not accede to this ground of appeal.
Ground #2: Pre-trial Silence as a Credibility Factor
48The second ground of appeal alleges that the trial judge improperly used the appellant’s pre-trial silence as a basis upon which to reject the evidence the appellant gave at trial. To furnish the context essential for a consideration of this ground of appeal, it is helpful to begin with a brief reference to the appellant’s evidence at trial and the reasons of the trial judge before turning to the principles that inform the decision on this ground of appeal.
The Appellant’s Version
49The appellant denied knowledge of or control over the guns, ammunition, and high capacity magazine found in the duffle bag. He acknowledged that he had put a long-handled, heavy-headed object down the front of his pants as Clifford arrived. He explained that the object was a sledgehammer, not a gun. He started to pull it out to hit Clifford because he was fed up with the ongoing argument between Charles and Clifford.
The Reasons of the Trial Judge
50The trial judge applied the principles of R. v. W.(D.), [1991] 1 S.C.R. 742 to the evidence of the appellant. He rejected the appellant’s testimony about the sledgehammer because it (the testimony) was undermined by “the numerous falsehoods scattered throughout his testimony.” After enumerating seven specific examples of these falsehoods, the trial judge concluded:
In sum, and for the reasons set out above, I do not accept Richwood’s evidence that he had a sledgehammer in his pants. The first time that this explanation was attempted was before me at trial. In my view, this was a complete fabrication, invented by the accused, and supported in part by a well-meaning mother, to avoid a firearms conviction.
51The trial judge also rejected the appellant’s evidence because of the strength of the evidence introduced in the three police statements admitted under the principled exception to the hearsay rule. He considered these statements to be accurate and truthful.
The Arguments on Appeal
52For the appellant, Mr. Stribopoulos contends that the trial judge erred in law when he rejected the appellant’s evidence on the basis that the appellant had never before disclosed the explanation (a sledgehammer, not a gun) advanced at trial.
53Mr. Stribopoulos says that the appellant, as a person charged with an offence, had a constitutionally-protected right to remain silent during the police investigation and at trial. To link rejection of the appellant’s testimony to his failure to speak with or disclose his explanation to the police is to attach evidentiary significance to the exercise of a constitutional right, a chain of reasoning that is not available to a trier of fact and constitutes an error in law.
54For the respondent, Ms. Henschel takes the position that the passage the appellant impugns as an impermissible use of the exercise of a constitutional right formed no part of the trial judge’s reasons for rejecting the appellant’s testimony. The rejection was based on the several falsehoods identified by the trial judge and the overwhelming nature of the case revealed in the prior statements of the three recanting witnesses. This observation by the trial judge was unfortunate, but did not taint his credibility findings or his ultimate determination that the Crown had proven its case beyond a reasonable doubt.
The Governing Principles
55The governing principles are uncontroversial.
56First, a person suspected of or charged with a crime has a right to silence that she or he may exercise in the investigative stages of proceedings: R. v. Chambers, [1990] 2 S.C.R. 1293, at p. 1315. This right to silence is a basic tenet of our legal system and thus falls within the sweep of s. 7 of the Charter: Chambers, at p. 1316; R. v. Hebert, [1990] 2 S.C.R. 151, at p. 161.
57Second, it is not open to a trier of fact to reject an accused’s evidence on the basis that she or he remained silent at the investigative stage of proceedings: R. v. Rohde, 2009 ONCA 463, 246 C.C.C. (3d) 18, at para. 18; R. v. Palmer, 2008 ONCA 797, at para. 9; and R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561, at paras. 113-114.
The Principles Applied
58I would reject this ground of appeal. Reading the reasons of the trial judge as a whole, I am simply not persuaded that the trial judge rejected the appellant’s testimony on the basis of the appellant’s pre-trial silence.
59The trial judge rejected the appellant’s testimony on two grounds:
i. the myriad inconsistencies and falsehoods in the appellant’s testimony; and
ii. the cumulative force of the out-of-court statements of the three Crown witnesses whose statements were admitted for their truth under the principled exception to the hearsay rule.
60Both of these grounds for rejecting the appellant’s testimony were open to the trial judge. Neither reflects legal error. The structure of the trial judge’s reasons makes it plain that these grounds constituted the true basis for rejection of the appellant’s testimony. Nowhere in closing submissions was it suggested by anybody that the trial judge should draw an adverse inference against the appellant because of his pre-trial silence.
Ground #3: The Kienapple Principle
61The final ground of appeal invokes the decision in R. v. Kienapple, [1975] 1 S.C.R. 729, and the principle that bars multiple convictions for the same delict. The respondent acknowledges the application of the rule, but would limit the scope of its application in this case.
The Relevant Counts
62The indictment on which the appellant was tried included 17 counts. The trial judge entered convictions on all counts. No conditional stays were sought or entered.
63Counts 5 and 6 alleged unlawful possession of the same firearm, a 12 gauge Winchester shotgun, without a licence. Count 5 alleged a breach of s. 92(1) of the Criminal Code, and count 6 a breach of s. 91(1).
64Counts 7 and 15 alleged a breach of the same probation order. The term breached was a prohibition against carriage or possession of weapons as defined by the Criminal Code. Counts 9 and 16 charged failures to comply with the same probation order by the same conduct – failure to keep the peace and be of good behaviour.
65Counts 8 and 14 alleged identical breaches of a firearms prohibition by possession of a firearm. Neither count particularized the firearm of which the appellant was alleged to be in possession in breach of the prohibition.
The Arguments on Appeal
66For the appellant, Mr. Stribopoulos submits that a conditional stay should be entered on one count of each pairing. Where the offences in the pairing differ in gravity, as they do in counts 5 and 6, Mr. Stribopoulos says that the stay should be entered on the offence of lesser gravity. The necessary factual and legal nexus have been established.
67For the respondent, Ms. Henschel acknowledges that the rule the appellant invokes precludes convictions for multiple offences where both a factual and legal nexus connects those offences. To establish a factual nexus, the appellant must demonstrate that both charges arise out of the same transaction. To establish a legal nexus, Ms. Henschel says, the appellant must show that both offences constitute a single wrong or delict.
68Ms. Henschel accepts that where the same transaction gives rise to two or more offences with the same or substantially the same elements, and an accused is found guilty of more than one, a conditional stay should be entered on the less serious count and the conviction on the more serious count left undisturbed. She concedes that the rule requires entry of a conditional stay on count 6, and on one of counts 9 and 16 and counts 11 and 12. The rule, she says, cannot be invoked in connection with counts 7 and 15, or 8 and 14, because the counts do not relate to the same delict: two weapons were involved and the possession of each was a separate and distinct breach of the governing orders.
The Governing Principles
69Under Kienapple, the relevant inquiry when an accused invokes the rule against multiple convictions is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences: Kienapple, at p. 750. Where two or more offences contain the same or substantially the same elements, application of the rule is triggered: Kienapple, at p. 751.
70The decision in Kienapple does not prohibit a multiplicity of convictions, each in respect of a different factual incident: R. v. Prince, [1986] 2 S.C.R. 480, at p. 491. The rule does, however, bar multiple convictions for offences that arise from the same transaction: Prince, at p. 491. The factual nexus requirement is satisfied where it is the same act of the accused that grounds each of the charges: Prince, at p. 492. Where one act ends and another begins is often not easy to define and requires evaluation on a case-by-case basis: Prince, at p. 492.
71Where a sufficient factual nexus between the charges is established, it becomes necessary to determine whether there is an adequate relationship between the offences themselves: Prince, at p. 493. This requirement of a legal nexus will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence that the accused seeks to preclude under the rule: Prince, at pp. 498-499. Where the offences are of unequal gravity, however, the rule against multiple convictions 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 additional elements in the lesser offence: Prince, at p. 499.
72Sometimes, an element of an offence sufficiently corresponds to another element such that it cannot be regarded as additional or distinct. One element may be a particularization of another element, and thus may not be considered as a distinguishing feature that renders the Kienapple rule inapplicable: Prince, at p. 500. Elements may correspond to one another if there is more than one method, enumerated in more than one offence, to prove a single delict: Prince, at p. 501. A sufficient correspondence between elements may exist to sustain the application of Kienapple when Parliament, in effect, deems a particular element to be satisfied by proof of a different nature: Prince, at p. 501.
The Principles Applied
73I would give effect to this ground of appeal and enter conditional stays on one count of each pairing described above.
74Ms. Henschel acknowledges the application of the principle requires entry of a conditional stay on counts 6 and 12, and on one of counts 9 and 16. I agree.
75The offences charged in counts 5 and 6 and in counts 11 and 12 contain substantially the same elements and arise out of the same transaction. It follows from Prince that a conditional stay should be entered on the counts that are less serious: counts 6 and 12.
76Counts 9 and 16 are exact duplicates. Each alleges a failure to comply with the same term of the same probation order, at the same time, and in the same place: failure to keep the peace and be of good behaviour. A conditional stay should be entered on count 16.
77Counts 7 and 15 are in identical terms. Each alleges a failure to comply with the same condition, in the same probation order, at the same time, and in the same place. The condition breached is alleged to be “not carry or possess weapons as defined by the Criminal Code”. Neither count particularizes the weapon possessed in contravention of the prohibition in the probation order. The same may be said of counts 8 and 14, except that the underlying order breached in connection with those counts is a firearms prohibition under s. 110 of the Criminal Code.
78In the absence of particularization of the weapon or firearm in the counts charging these offences, I can see no basis upon which all four convictions should stand. The same conduct grounds each charge. The firearms were found together in the same bag. The offences in each pair are identical and the allegations of each in identical terms. I would enter conditional stays of the convictions on counts 14 and 15 and leave the convictions on counts 7 and 8 undisturbed.
CONCLUSION
79For these reasons, I would dismiss the appeal from the convictions recorded at trial except to the extent of ordering that conditional stays be entered on the convictions on counts 6, 12, 14, 15, and 16.
Released:
“AUG 12 2013” “David Watt J.A.”
“MR” “I agree M. Rosenberg J.A.”
“I agree S.E. Pepall J.A.”
