DATE: 20050615
DOCKET: C40755-C40767
COURT OF APPEAL FOR ONTARIO
DOHERTY, MOLDAVER and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Susan G. Ficek for the applicant/appellant on the sentence appeal Applicant/Appellant on Sentence Appeal and the respondent on the Respondent on Conviction Appeal conviction appeal
- and -
Paula Rochman for the respondent on the sentence appeal
ROBERT KINNEAR Respondent on Sentence Appeal/ Appellant on Conviction Appeal and the appellant on the conviction appeal
John North and Steve Coroza for the intervenor, Attorney General of Canada
Heard: April 20, 2005
On appeal from the convictions by Justice Matlow of the Superior Court of Justice dated August 20, 2003, and on appeal from the sentence imposed dated September 15, 2003.
DOHERTY J.A.:
I
Overview
[1] Robert Kinnear (“Kinnear”), an 18 year old drug dealer with a lengthy youth court record, was caught shoplifting. Two security officers took him to a room in the store. When one of the officers attempted to conduct a “pat down” search, Kinnear pulled out a sawed-off shotgun he had hidden under his coat, pointed it at the security officers, threatened to shoot them and instructed them to let him out of the room. As Kinnear ran from the room, he encountered a third security officer and pointed the sawed-off shotgun at this officer. Kinnear fled through the crowded store with the weapon in full view, and exited the store.
[2] The trigger mechanism of the sawed-off shotgun was broken and it would not fire. Kinnear knew this, but the people he pointed it at did not.
[3] Kinnear was charged with eight offences:
• theft (count 1);
• two counts of threatening death (counts 2 and 3);
• possession of a weapon, to wit a sawed-off shotgun, for a purpose dangerous to the public peace (count 4);
• escape lawful custody (count 5);
• two counts of using an imitation firearm while committing the indictable offence of threatening death (counts 6 and 7); and
• using an imitation firearm while committing the indictable offence of escape custody (count 8).
[4] Kinnear pled guilty to four of the charges (counts 1, 4, 5 and 8). He maintained that he had not threatened to kill either security guard and pled not guilty to counts 2, 3, 6 and 7. After hearing the evidence of the guards and Kinnear, the trial judge found that Kinnear had threatened to kill the guards and found him guilty on all eight charges.
[5] After the trial judge made findings of guilt on all counts, he rejected the defence contention that the two charges of using a firearm while committing the offence of threatening (counts 6 and 7) should be stayed in accordance with the rule against multiple convictions. The trial judge entered convictions on all counts.
[6] In the course of the proceedings, the trial judge, on his own initiative raised the question of the constitutionality of s. 85(4) of the Criminal Code. That section directs that any sentence imposed upon a conviction on a charge of using an imitation firearm while committing an indictable offence shall be served consecutively to any other sentence imposed at the same time or to any sentence already being served when the sentence for the offence of using the firearm is imposed.
[7] The trial judge ultimately concluded that s. 85(4) contravened the prohibition against cruel and unusual punishment in s. 12 of the Charter. He read s. 85(4) down so that it would permit the imposition of concurrent sentences on the three charges of using an imitation firearm in the commission of an indictable offence.
[8] The trial judge decided that a sentence totalling one year, nine months and seven days was appropriate for Kinnear. In his view, the three firearms charges warranted one year concurrent sentences and the remaining five charges required consecutive sentences totalling nine months and seven days.
[9] Kinnear was in the Don Jail for eleven months before he was sentenced. The trial judge gave him credit for the pre-trial custody equal to the term of imprisonment that the trial judge would have imposed (one year, nine months and seven days). In the result, the trial judge suspended sentence and placed Kinnear on probation for three years.
[10] In his reasons for sentence, the trial judge stated that even if had not declared s. 85(4) unconstitutional and had been required to impose three consecutive one year sentences on counts 6, 7 and 8, he would still have held that Kinnear’s pre-trial custody entitled him to credit equal to the term of imprisonment that the trial judge would otherwise have imposed. In short, whether s. 85(4) was constitutional or not, he would have imposed the same sentence, a suspended sentence followed by probation.
[11] Kinnear appeals from some of the convictions entered by the trial judge. He contends that the two convictions for threatening, and the two convictions for using a firearm while committing the offence of threatening should be set aside and those charges should be stayed pursuant to the rule against multiple convictions, or as it is more commonly known in Canada, the “Kienapple” rule.
[12] The Crown seeks leave to appeal the sentence imposed, and if leave is granted, appeals that sentence. On the appeal, the Crown does not seek any variation of the sentence imposed on Kinnear, but asks that the court set aside the trial judge’s declaration that s. 85(4) is unconstitutional.
[13] The merits of Kinnear’s appeal must be considered first. The constitutionality of s. 85(4) can only be properly assessed if the section is applied in accordance with the relevant criminal law principles, including the rule against multiple convictions.
II
Circumstances of the Offences
[14] Kinnear and some friends were in a department store in downtown Toronto. Kinnear was seen stealing a pair of socks. He and an accomplice were arrested by security officers who took them to a room at the back of the store. When one of the officers began a pat down search of Kinnear, he pulled out a double barreled sawed-off shotgun and pointed it at both security guards. He held it up to the face of one of the guards and told him to back up or he would shoot. Kinnear then trained the gun on the second security guard and told her to back up against the wall or he would shoot her. Both security guards were terrified, but managed to remain calm. Kinnear also threatened to shoot his accomplice. The accomplice was terrified and urged Kinnear to “be cool”.
[15] Kinnear ordered one of the security guards to open the door. As Kinnear left the room, he encountered a third security guard. Kinnear held the gun up and pointed it at the third security guard who immediately backed away from the door allowing Kinnear to make good his escape. Kinnear ran through the crowded store with the sawed-off shotgun in plain view. According to him, the shoppers scattered, and “it kind of got hectic”. Kinnear threw the gun away once he was outside. He was arrested shortly afterwards and the gun was found in a nearby parking lot.
[16] Kinnear testified that he had purchased the gun for one hundred dollars and had arranged to have the barrel sawed off. He had also made a sling so that he could carry the gun over his shoulder and concealed under his coat. Kinnear thought the gun was “cool” and could prove helpful to him during his drug dealing.
[17] The trigger mechanism on the weapon did not work and it could not be fired. Kinnear testified that when he bought the gun, he believed that it was operable. He made inquiries about getting ammunition. He was subsequently told by the friend who sawed off the barrel of the gun that it would not fire properly. Kinnear knew that it would not fire when he pointed it at the security officers.
[18] Kinnear testified that he was surprised when the security guard began to search him. He said that he reacted as he did because he knew the guard would find the sawed-off shotgun.
III
Circumstances of the Offender
[19] Kinnear was born in 1984 and was just over 18 years of age when he committed these offences. He comes from an economically privileged background. His parents separated when he was six years old and had joint custody of Kinnear. When he was 13, Kinnear became rebellious, eventually causing his mother to send him to a private boarding school that specialized in children with behavioural problems. The harsh environment at the school and the negative effect of some of the other students made Kinnear’s behaviour worse. By the time Kinnear was sixteen, his father would have nothing to do with him and his mother was unable to exercise any control over him. For the two years prior to these offences, Kinnear was living a life of crime on the streets of Toronto and had resisted all of his mother’s attempts to help him.
[20] Kinnear has an extensive youth court record beginning in November 1999 and consisting of eight convictions for various offences over two years. The offences include assault and assault with a weapon. Kinnear has been placed on several probation orders. He was on probation and subject to a weapons prohibition order when he committed these offences. By his own admission, Kinnear made his living as a drug dealer. He had one conviction as an adult for trafficking in cocaine.
[21] Kinnear was held in custody in the Don Jail on these charges. The conditions in the jail were terrible. Kinnear was assaulted by other inmates.
[22] Mrs. Kinnear moved to Vancouver after Kinnear’s arrest on these charges. She continued, however, to have regular contact with her son. She testified that his experience in the Don Jail had been a real shock to him and that she was now satisfied that he wanted to make a fresh start. According to Mrs. Kinnear, her son realized that he needed help. She also testified that he was remorseful.
[23] Mrs. Kinnear made inquiries in British Columbia and subject to the order of the court, had made arrangements for Kinnear to reside at a private treatment centre where he could obtain the necessary counselling.
IV
Kinnear’s Conviction Appeal
(a) The Arguments
[24] At trial, counsel for Kinnear argued that the three charges of using a firearm while committing an indictable offence all arose out of a single transaction and that the two charges of using a firearm to threaten death (counts 6 and 7) were subsumed in the charge of using a firearm to escape lawful custody (count 8). He asked the trial judge to stay counts 6 and 7.
[25] On appeal, counsel renews the argument made at trial and goes one step further. He submits that on a proper application of the Kienapple rule, Kinnear should not have been convicted on the threatening charges (counts 2 and 3) and the charge of escape lawful custody (count 5). She contends that Kinnear’s threatening of the security guards was the means by which he effected his escape and that only one conviction for the escape transaction should be entered.
[26] The trial judge held that the rule against multiple convictions had no application and entered convictions on all counts. He gave no reasons for his ruling.
(b) The Kienapple Principle
[27] In R. v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.), the court recognized and arguably expanded the common law rule prohibiting more than one conviction for the same criminal wrong. Laskin J. explained that the principle foreclosed more than one conviction for offences arising out of the same delict. He said at pp. 538-39:
The relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences.
[28] The principle that emerged from 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 stayed: R. v. P. (D.W.) (1989), 49 C.C.C. (3d) 417 (S.C.C.).
[29] Laskin J. at p. 540 linked the “Kienapple” rule to the court’s power to protect against abuses of its process. He described the rule as designed to “protect an individual from an undue exercise by the Crown of its power to prosecute and punish”.
[30] In R. v. Prince (1986), 30 C.C.C. (3d) 35 at 42 (S.C.C.), Dickson C.J.C. identified the same rationale for the rule:
[T]he Canadian courts have long been concerned to see that multiple convictions are not without good reason heaped on an accused in respect of a single criminal delict.
[31] Kienapple, like most seminal authorities, left uncharted the full scope of the principle it created. It fell to the court in Prince, supra, to take up the task of designing an analytical framework to guide the application of the Kienapple rule in specific circumstances.
[32] Dickson C.J.C. for a unanimous court in Prince, held that the Kienapple rule precluded multiple convictions for different offences only where there was 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.
[33] The factual nexus is most obvious where offences arise out of the same act. Kienapple and Prince are examples of a single act leading to multiple charges. 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. In describing the factual nexus inquiry, Dickson C.J.C. said in Prince at p. 44:
Such difficulties will have to be resolved on an individual basis as cases arise, 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 (such as the robbery conviction in Côté), and whether the accused’s actions were related to each other by a common objective. In the meantime, it would be a mistake to emphasize the difficulties. In many cases, including the present appeal, it will be clear whether or not the charges are founded upon the same act.
[34] While there will inevitably be close cases, the factual nexus inquiry dictated by the Kienapple rule is relatively straightforward. The legal nexus inquiry, however, is more nuanced. A comparison of the constituent elements of the offences in issue is an essential part of the legal nexus inquiry. However, the mere fact that offences share common elements does not establish a sufficient legal nexus between those offences to warrant the application of the Kienapple rule. The legal nexus inquiry is directed not at finding common elements between offences, but at determining whether there are different elements in the offences which sufficiently distinguish them so as to foreclose the application of the Kienapple rule. As indicated in Prince at p. 49:
[T]he 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.
[35] I stress that Dickson C.J.C. referred to an “additional and distinguishing element”. Not every difference in the elements of the offences will preclude the Kienapple rule. Indeed, if the elements of the offences are identical or if the elements of one offence are all included in the other offence, the pleas of autrefois convict or autrefois acquit will apply and there is no need to resort to the Kienapple rule.
[36] When will it be said that there are no “additional and distinguishing elements” between offences? As indicated in Prince at pp. 49-50, there can be “no precise answer” to this question. The sufficiency of the legal nexus between offences will depend on an interpretation of the statutory provisions that create the offences and the application of those statutory definitions to the circumstances of the case.
[37] In Prince at pp. 49-51, Dickson C.J.C. provided guidance as to the situations in which there will be a sufficient legal nexus to justify the application of the Kienapple rule. He described three categories of cases where the legal nexus between offences will be established. I need not repeat those categories here. In essence, each presents a situation in which the offences charged do not describe different criminal wrongs, but instead describe different ways of committing the same criminal wrong.
[38] Dickson C.J.C. in Prince at pp. 51-54 further elucidated the legal nexus inquiry by referring to three factors that will defeat any claim that different offences have a sufficient legal nexus to warrant the application of the Kienapple rule. These factors do bear repeating in these reasons. First, where the offences are designed to protect different societal interests, convictions for both offences will not offend the Kienapple rule. Second, where the offences allege personal violence against different victims, Kienapple will not foreclose convictions for offences relating to each victim. Third, where the offences proscribe different consequences, the Kienapple rule will not bar multiple convictions.
[39] I think the three factors identified in Prince as severing any possible legal nexus between offences provide further support for the view that the crucial distinction for the purposes of the application of Kienapple rule is between different wrongs and the same wrong committed in different ways. 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.
[40] One final and important point must be made in outlining the Kienapple rule. It is subject to the dictates of Parliament. If a statutory provision expressly or by clear implication provides for multiple convictions for offences arising out of the same delict, the court must give effect to the legislative intention subject to a successful Charter challenge: Kienapple at p. 540; R. v. McGuigan (1982), 66 C.C.C. (2d) 97 at 123-24 (S.C.C.); Prince at pp. 48-49. The post-Charter jurisprudence establishes that multiple convictions for offences arising out of the same delict is not a per se violation of the Charter: R. v. Krug (1985), 21 C.C.C. (3d) 193 at 202-203 (S.C.C.); R. v. Brown (1994), 93 C.C.C. (3d) 97 (S.C.C.). The constitutionality of a provision overriding the Kienapple rule will depend on the specifics of that provision and its application to a particular fact situation.
(c) The Application of Kienapple to this Case
[41] Counsel for Kinnear’s submissions require a consideration of the Kienapple rule as it applies to:
• the three convictions on the two charges of threatening and the one charge of escape lawful custody; and
• the three convictions on the charges of using an imitation firearm while committing an indictable offence.
[42] Counsel’s contention that Kinnear should not have been convicted of two counts of threatening and a charge of escape custody cannot be sustained. While there is a clear factual nexus since the threats were part of the means used by Kinnear to effect his escape, there is no legal nexus among the offences justifying the application of the Kienapple rule. The legal distinction between the threatening charges and the escape custody charge lies in the societal purpose underlying the offences. The prohibition against death threats seeks to protect the security of the individual. The prohibition against escaping lawful custody seeks to protect the due and effective administration of justice. These very distinct purposes render the offence of threatening and the offence of escape separate delicts, even though both were committed in the course of the same transaction.
[43] I would add, and counsel did not suggest otherwise, that the convictions on the two threatening charges were proper since there were two different victims.
[44] I am satisfied, however, there is merit to counsel’s contention that the rule in Kienapple forecloses convictions on all three of the charges involving the use of an imitation firearm while committing an indictable offence. I think those charges represent a single criminal wrong justifying only one conviction.
[45] The factual nexus connecting the three offences is obvious. The uses of the firearm referred to in the three charges all arose at the same time and place. There were no intervening events capable of severing the factual nexus. All three offences were motivated by a single common objective, Kinnear’s desire to escape custody.
[46] The legal nexus inquiry begins with the language of s. 85(2) which creates the offence of using an imitation firearm while committing an indictable offence:
s. 85(2) Every person commits an offence who uses an imitation firearm
(a) while committing an indictable offence
whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.
[47] Section 85(3)(a), part of the penalty provision, provides that for a first offence under s. 85(2), an accused is liable to imprisonment for at least one year and not more than fourteen years.
[48] Section 85(2) creates the generic offence of using an imitation firearm while committing an indictable offence. The specific indictable offence alleged to have been committed is but a particular, albeit an essential particular, of the charge. The essence of the offence lies in the use of an imitation firearm while committing another indictable offence.
[49] Based on the language of s. 85(2), there is no legal distinction to be drawn among the three charges in counts 6, 7 and 8. They describe different ways of committing the offence set out in s. 85(2). The three charges do not promote different societal interests, protect different victims, or prohibit different consequences. Looked at realistically, counts 6, 7 and 8 are akin to snapshots of scenes taken from a videotape depicting a single ongoing use of an imitation firearm in the course of committing several indictable offences.
[50] My analysis leads me to s. 85(4) of the Criminal Code:
A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).
[51] Has Parliament, by the enactment of s. 85(4), abrogated the Kienapple rule as it would normally apply to charges of using an imitation firearm while committing an indictable offence? An identical provision was referred to in McGuigan, supra, at pp. 123-24 as indicative of Parliament’s intention that the Kienapple rule should not prevent convictions for both the underlying indictable offence and the offence of using a firearm while committing that indictable offence. The court observed that the minimum consecutive penalty imposed for the use of a firearm while committing an indictable offence evinced Parliament’s strong concern with respect to the proliferation of firearm related crimes and its determination to create penal sanctions that would deter the use of firearms during the commission of crimes.
[52] The deterrent purpose driving s. 85(4) would be defeated if the Kienapple rule were applied to exclude convictions for both the underlying indictable offence and the charge of using a firearm while committing that offence. That purpose would not suffer, however, were the Kienapple rule applied to multiple charges of using a firearm in the commission of an indictable offence arising out of the same transaction. Offenders would still face a minimum mandatory penalty by virtue of the use of a firearm during the commission of an indictable offence. That penalty would be consecutive to the penalty imposed for the underlying indictable offence.
[53] The rule in Kienapple applies unless Parliament has clearly indicated otherwise. In my view, s. 85(4) is intended to impose an additional penalty for the use of an imitation firearm beyond the penalty imposed for the underlying indictable offences that were committed as part of the same transaction. It does not go so far as to preclude the operation of the Kienapple rule to multiple charges of using a firearm while committing an indictable offence that arise out of the same transaction.
[54] The interpretation I place on s. 85(4) is consistent with R. v. Woods and Feuerstein (1982), 65 C.C.C. (2d) 554 at 562 (Ont. C.A.). In the course of referring to the predecessor section to the present s. 85, Goodman J.A. stated:
The wording of s. 83(1)(a) makes it abundantly clear that a separate offence is committed by a person under that section each time that he uses a firearm in the commission of a separate indictable offence involving a separate transaction. It is immaterial that the separate indictable offences are committed by such person within a short period of time or space of each other or that the same firearm is used by him in the commission of each such separate offence [emphasis added].
[55] Applying the words of Goodman J.A. to the present factual circumstances, it cannot be said that the use of the firearm to threaten the two security guards and the use of the firearm to escape the lawful custody of the security guards involved separate transactions. They were all part and parcel of the same transaction.[^1]
[56] The three charges of using the firearm while committing an indictable offence are equally serious. I think the appropriate order would have been to enter a conviction on count 8, the charge of using a firearm to escape custody, and to enter a stay on counts 6 and 7.
V
The Crown’s Sentence Appeal
[57] The trial judge’s declaration that s. 85(4) was unconstitutional rested on his finding that convictions should be entered on each of the three charges involving the use of an imitation firearm while committing an indictable offence. He further held that each charge required the imposition of a minimum consecutive sentence of one year, yielding a total sentence on counts 6, 7 and 8 of at least three years. That total would also have to be served consecutively to the total sentence imposed on the other offences for which Kinnear was convicted. On this analysis, Kinnear had to be sentenced to at least three years in jail. The trial judge concluded that such a sentence would constitute cruel and unusual punishment.
[58] As I would hold that Kienapple does apply, and that there should have been a conviction on only one of the imitation firearm charges, the constitutional issue raised and addressed by the trial judge disappears. I will, however, address the trial judge’s finding of unconstitutionality as in my view it reveals three fundamental errors. First, the trial judge should not have addressed the constitutional issue at all as on the view he took of the case, the constitutionality of s. 85(4) was irrelevant to the determination of the appropriate sentence. Second, the trial judge failed to consider and apply binding authority from this court. Third, even if the prior decisions of this court were somehow distinguishable, the trial judge’s finding that s. 85(4) imposed cruel and unusual punishment is entirely at odds with the analysis provided in the controlling precedents from this court and the Supreme Court of Canada.
(a) It was Inappropriate to Decide the Constitutional Issue
[59] It has been repeatedly held that courts should not decide issues of law, particularly constitutional issues, that are not necessary to the resolution of the matter before the court: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at paras. 5-11. As outlined earlier, the trial judge made it clear that regardless of whether s. 85(4) was constitutional or not, he would have imposed exactly the same sentence – a suspended sentence followed by probation. As the disposition the trial judge deemed appropriate was unaffected by the constitutionality of s. 85(4), it was wrong for the trial judge to decide the constitutionality of the section. By introducing the constitutional issue, the trial judge added to the complexity, cost and length of the trial proceedings and provoked an entirely meritorious appeal by the Crown. Had the trial judge not addressed the constitutional issue and simply determined, as he was required to do, a fit sentence, Kinnear could have been sentenced a month earlier. Presumably, had the trial judge sentenced him a month earlier, he would still have imposed a sentence of time served given the trial judge’s strong views of the conditions of Kinnear’s pre-trial incarceration. Kinnear spent an extra month in the terrible conditions at the Don Jail because the trial judge raised and pursued a constitutional issue that had no effect on the sentence he ultimately would have imposed.
(b) The Trial Judge Failed to Consider Binding Authority
[60] After the trial judge had raised the constitutionality of s. 85(4), he asked for written argument. Counsel provided extensive written submissions in which all of the relevant authorities were cited. The authorities included at least two cases from this court that were directly on point: R. v. Wheatle (1993), 86 C.C.C. (3d) 378 at para. 21 (Ont. C.A.); R. v. Spark (1986), 27 C.R.R. 28 at 29 (Ont. C.A.).
[61] The trial judge’s reasons finding s. 85(4) unconstitutional are largely conclusory and contain little analysis and no reference to the s. 12 jurisprudence, apart from an approving reference to the decision of the Manitoba Court of Appeal in R. v. Brown (1993), 80 C.C.C. (3d) 275. That decision was reversed by the Supreme Court of Canada: (1994), 93 C.C.C. (3d) 97 (S.C.C.).
[62] Unfortunately, the trial judge did not refer to this court’s decisions in R. v. Wheatle, supra, or R. v. Spark, supra. His failure to refer to Wheatle is particularly significant in that this court specifically declined to follow R. v. Brown, supra, the only authority relied on by the trial judge.
[63] The authorities from this court were binding on the trial judge and were determinative of the constitutional issue raised by him unless they were distinguishable. The trial judge made no effort to distinguish these authorities, but instead ignored them.
(c) The Proper S. 12 Analysis
[64] Finally, to the extent that the reasons of the trial judge reveal any analysis of s. 12, that analysis is inconsistent with the approach followed in binding authority from the Supreme Court of Canada and this court: see R. v. Goltz (1991), 67 C.C.C. (3d) 481 (S.C.C.); R. v. Morrisey (2000), 2000 SCC 39, 148 C.C.C. (3d) 1 (S.C.C.); R. v. McDonald (1998), 127 C.C.C. (3d) 57 (Ont. C.A.).
[65] In McDonald, supra, at para. 16, Rosenberg J.A. admirably described the approach to be taken to claims that a sentence contravened s. 12 of the Charter:
The sentencing provision will be found to infringe s. 12 if it would provide for and would actually impose a sentence that is so excessive or grossly disproportionate as to outrage decency in the particular circumstances of this offender. When the particular facts of the case do not result in gross disproportionality, the court moves to the second stage and it must consider whether the impugned provision would impose a grossly disproportionate punishment in reasonable hypothetical circumstances. If so, the section will be found to violate s. 12. Finally, if the court is persuaded that there is a violation of s. 12, it must consider whether the provision can be saved as a reasonable limit under s. 1 of the Charter.
[66] The first part of the s. 12 inquiry looks at the effect of the specific sentence on the specific offender. Section 12 will be infringed only if in all of the circumstances of the offence and the offender, the sentence is so excessive as to “outrage decency”. It is not enough that the sentence is harsh or even manifestly unfit in the sense that appellate intervention would be warranted but for the minimum penalty imposed by Parliament: R. v. McDonald at para. 72; R. v. Luxton (1990), 58 C.C.C. (3d) 449 at 459-60 (S.C.C.).
[67] It would appear that the trial judge intended to find that the imposition of a three year sentence would be grossly disproportionate to the sentence that would be appropriate for Kinnear having regard to his circumstances and the circumstances surrounding the crimes. At the same time, however, the trial judge held that had he been required to impose a three year sentence on the firearms charges, he would have given Kinnear credit for three years based on his pre-trial custody, suspended the passage of sentence and placed Kinnear on probation.
[68] It seems self-evident that a sentence of time served followed by probation cannot be described as so excessive as to “outrage decency”. The trial judge’s assertion that he would have imposed a suspended sentence followed by probation had he upheld the constitutionality of s. 85(4) is entirely irreconcilable with his finding that s. 85(4) contravened s. 12 because it required the imposition of a grossly disproportionate sentence. On the trial judge’s approach, the section had absolutely no effect on the determination of the appropriate sentence. One can only conclude that the trial judge misapprehended the nature of the gross disproportionality assessment required at the first stage of the analysis described in McDonald.
[69] Apart from this irreconcilable inconsistency in the trial judge’s reasons, the Crown also argued that the trial judge understated the seriousness of the offences committed by Kinnear in assessing whether s. 85(4) imposed a grossly disproportionate penalty.
[70] The trial judge acknowledged that the offences were serious, although “not the most serious of crimes”. He also stated:
It is important to bear in mind what this case is all about. It is about a young adult, alienated from his family and his community, living without any effective help or supervision, who steals a pair of socks from a retail store.
[71] I agree with Crown counsel’s submission. The trial judge’s characterization of Kinnear’s conduct gravely understates the seriousness of these crimes. Kinnear terrorized the security guards and other innocent victims. The serious risk to the guards and others created by Kinnear’s actions is self-evident. Section 85 draws no distinction between the use of a firearm and the use of an imitation firearm. The fact that Kinnear could not fire the sawed-off shotgun was not a mitigating factor.
[72] Kinnear’s offences were made all the more serious by the fact that he had purchased the weapon believing it was operable and intending to use it in the course of his criminal activities. Kinnear’s serious and dangerous activity was not the product of any momentary panic, but the almost inevitable result of his conduct in the weeks leading up to these events.
[73] On a proper appreciation of these offences, principles of denunciation and general deterrence had to play a significant part in determining an appropriate sentence. Kinnear’s criminal antecedence and his blatant disregard for court orders also indicated a need for specific deterrence. However, given Kinnear’s youth and potential, his long-term rehabilitation provided the best possible protection for the community. The evidence of Kinnear’s mother suggested that rehabilitation was a real possibility.
[74] Considering the serious nature of these offences, a significant jail term was required despite Kinnear’s youth. The length of that jail term depended very much on the sentencing judge’s assessment of the rehabilitative potential of Kinnear. Different judges could reasonably have taken different views of that potential. Consequently, the appropriate range of sentence was quite wide. Certainly, if a sentencing judge took a less optimistic view of Kinnear’s rehabilitative potential than did this trial judge, a sentence in the range suggested by the Crown (3 to 3 ½ years) would have been entirely appropriate and certainly not so grossly disproportionate as to outrage decency.[^2]
[75] The second phase of the s. 12 analysis described in McDonald, supra, requires that the court consider whether the impugned sentencing provision would require the imposition of a grossly disproportionate punishment in reasonable hypothetical circumstances.
[76] The trial judge briefly addressed this aspect of s. 12 in his reasons. He offered up a hypothetical in which an accused was detained by more than two security guards and threatened each of the guards to make good his escape. The trial judge observed that s. 85(4) would require an additional minimum one year consecutive sentence for each guard threatened. He reasoned that at some point, the number of guards threatened would render the total sentence imposed grossly disproportionate.
[77] The trial judge’s hypothetical ignores the operation of the Kienapple rule. As indicated earlier in these reasons, Kienapple would preclude convictions for more than one charge of using a firearm to commit an indictable offence arising out of the same transaction. The use of a firearm to threaten several guards at the same time and the same place in order to effect an escape would support only one conviction for using a firearm while committing an indictable offence.[^3]
[78] In McDonald at para. 72, Rosenberg J.A. observed:
I am not convinced that having regard to the objective gravity of any offence involving the use of a firearm, even an unloaded one, that a sentence approaching four years shocks the conscience.
[79] Those words are equally applicable to a minimum one year consecutive sentence for each transaction in which an accused uses an imitation firearm to effect an escape from lawful custody.
VI
Conclusion
[80] For the reasons set out above, I would allow Kinnear’s conviction appeal, set aside the convictions on counts 6 and 7, and based on the Kienapple rule, direct that stays be entered on those counts.
[81] As I would not vary the sentence imposed by the trial judge, the sentence appeal must be dismissed: Criminal Code, s. 687(1). I would, however, set aside the declaration that s. 85(4) is unconstitutional.
RELEASED: “DD” “JUN 15 2005”
“Doherty J.A.”
“I agree M.J. Moldaver J.A.”
“I agree E.E. Gillese J.A.”
[^1]: The Crown at trial and on appeal agreed that the Kienapple rule could apply to foreclose more than one conviction for multiple charges of using a firearm while committing an indictable offence, if those charges arose out of the same transaction. The Crown argued that the charges in this case arose out of more than one transaction.
[^2]: In his reasons, the trial judge erroneously indicated that the Crown was seeking a sentence of between 3 and 4 years “in addition to time served”. The Crown argued for a sentence of 3 to 3 ½ years subject to the appropriate reduction for the time spent in pre-trial custody. The Crown argued that Kinnear should be given two for one credit for his pre-trial custody.
[^3]: I do not suggest that there could only be one conviction for threatening see: supra, para. 43.