Court Information

Ontario Court of Justice

Date: May 15, 2018

Court File Nos.: 17-36271 and 18-25041

Parties

Between:

Her Majesty the Queen

— AND —

Andrew Robinson

Judicial Officer and Counsel

Before: Justice Paul Burstein

Heard on: March 23, 2018

Ruling on Application of Kienapple Principle released on: May 15, 2018

Counsel:

• I. Greenway — counsel for the Crown
• K. Grewal — for the defendant Andrew Robinson

Decision

BURSTEIN J.:

[1] Introduction to the Kienapple Principle

For over 40 years, the Supreme Court of Canada's decision in R. v. Kienapple has precluded courts from registering multiple convictions for the same "criminal act". While the rule in Kienapple has spawned much subsequent discussion on how courts are to determine whether multiple convictions relate to the same "criminal act", there has been little discussion on how courts are to determine which of a criminal act's multiple convictions should be conditionally stayed pursuant to the rule.

[2] The Facts and Charges

In this case, Mr. Robinson has been found guilty of two counts of possessing a Schedule I substance for the purposes of trafficking ("PFTP"), contrary to s. 5(2) of the Controlled Drugs and Substances Act. In one of those two counts, the Schedule I substance is particularized as being fentanyl. The other of the two counts specifies the Schedule I substance as heroin. Each of the two counts relate to Mr. Robinson's single criminal act of having been in possession of a clear plastic bag containing 57.4 grams of a brown substance. The police originally believed that brown substance to be heroin. Subsequent analysis of the contents of that substance showed that it was a "mixture of heroin, fentanyl and methamphetamine". The Crown concedes that there is no evidence Mr. Robinson knew that the brown substance contained fentanyl.

[3] Crown's Position and Defence Response

The Crown acknowledges that Kienapple's rule against multiple convictions applies in this case and, thus, that a conviction should only be registered in respect of one of the two counts for which Mr. Robinson has been found guilty (with the other count being conditionally stayed). The Crown contends that the conviction ought to be registered on the count of PFTP fentanyl as that is the "most serious" of the multiple convictions. Relying on the recently released decision of my colleague Justice B. Green in R. v. Lemieux, Mr. Robinson submits that the conviction should be registered in relation to the count of PFTP heroin and that the PFTP fentanyl count ought to be conditionally stayed.

The Evidence Adduced in Support of the Two Findings of Guilt

[4] Guilty Plea to Heroin Count

Mr. Robinson admitted that he was guilty of possessing the 57.4 grams of the brown substance for the purpose of trafficking. Mr. Robinson has also admitted that he believed the brown substance he was intending to traffick was heroin. Consistent with those admissions, Mr. Robinson pleaded guilty to Count 3, the charge of possessing heroin for the purpose of trafficking.

[5] Agreed Facts on Fentanyl Count

The Crown, however, insisted that Mr. Robinson also be arraigned on the count of PFTP fentanyl. Mr. Robinson was not prepared to plead guilty to that count. Instead, Mr. Robinson agreed to admit all of the facts which the Crown sought to prove at trial on the PFTP fentanyl count. That agreed statement of facts included the following.

[6] Police Investigation

In the summer of 2017, the police received credible and compelling information that Mr. Robinson was selling heroin and cocaine from his home in Bowmanville. As a result of receiving that information, police began watching the location at which Mr. Robinson was believed to be selling those drugs. Over the course of a few days in August of 2017, the police observed Mr. Robinson engage in meetings consistent with him trafficking in drugs.

[7] Search Warrant and Seizure

The police eventually obtained a search warrant for Mr. Robinson's home in Bowmanville. During the execution of that search warrant, the police found scales, cell phones, 118.8 grams of crack cocaine and "a clear plastic bag with [a] brown substance weighing 57.4 grams". The police originally believed that the brown substance was heroin. The police also located identification belonging to Mr. Robinson during their search.

[8] Scientific Analysis

As noted above, Mr. Robinson admitted that he believed the 57.4 grams of the brown substance contained an illicit drug, namely, heroin. Scientific analysis showed that the brown substance also contained some fentanyl (mixed in with the heroin). In light of Mr. Robinson's admission that he possessed that brown substance for the purpose of trafficking, the Crown was able to also establish that Mr. Robinson was guilty of Count 6 – PFTP fentanyl.

The OCJ Decision in R. v. Lemieux

[9] Similar Factual Circumstances

Similar to this case, the accused in R. v. Lemieux was charged with trafficking a single substance he believed (and intended) to be heroin but which, when scientifically analyzed, turned out to also contain an unknown quantity of fentanyl. In relation to the sale of that single substance, the Crown in R. v. Lemieux had sought separate convictions for trafficking in fentanyl and for trafficking in heroin. The defence position was that a conviction should only be registered for trafficking in heroin.

[10] Absence of Evidence Regarding Fentanyl

In R. v. Lemieux, there was no evidence the accused had been involved with, nor aware of, fentanyl being added to the heroin he had intended to traffick. There was also no evidence in R. v. Lemieux suggesting that the quantity of fentanyl present in the heroin was anything more than a trace amount. As Justice B. Green observed:

… The substance was actually heroin but it also contained fentanyl. There is no evidence about how much fentanyl was actually in the heroin. It could have been a negligible amount or a substantial amount. There is no expert evidence that the addition of fentanyl to heroin would have changed its appearance, colour, consistency or quality…. There is no evidence that, regardless of the amount of fentanyl in the heroin, [the accused] would have known that there was fentanyl in the heroin simply by ingesting it. There is no evidence about the prevalence of heroin being laced with fentanyl or why traffickers would add fentanyl to an already highly addictive and powerful drug like heroin.

[11] Green J.'s Application of Kienapple

Relying on the Kienapple principle, Green J. refused to register convictions in R. v. Lemieux "for both what he believed he was trafficking in and for an unknown quantity of a narcotic that was added to that substance in the absence of evidence of an intention to traffic in that specific substance". As Green J. explained:

The principles enunciated in the Kienapple and Prince decision were intended to address this type of case where the Crown is overreaching and unfairly seeking multiple convictions for a single delict. In the unique circumstances of this case, there is a strong factual and legal nexus between each of these counts. Although trafficking in fentanyl is arguably the more serious charge, considering the Crown is unable to prove the quantity of fentanyl in the substance (which will be discussed in more detail), the counts on the Information with respect to trafficking in fentanyl will be stayed. [Emphasis added.]

Determining Which Count Ought to be Conditionally Stayed Pursuant to the Rule Against Multiple Convictions

[12] The Issue Before the Court

For the purpose of this case, there is no need to revisit the long line of cases in which the Kienapple principle has been considered and applied. As noted above, in light of the Crown's concession, the issue in this case is not whether the Kienapple principle applies to the dual findings of guilt arising from Mr. Robinson's possession of the brown powered substance, but rather which of the two counts must be conditionally stayed.

[13] Limited Guidance on Which Conviction to Stay

Remarkably, despite its long jurisprudential history, little has been written on how a court is to go about deciding which of the "multiple convictions" should be stayed if the Kienapple principle is determined to apply. The limited guidance offered by the caselaw requires that convictions be registered for "only the most serious" of the multiple convictions.

[14] Determining the "Most Serious" Offence

The limited discussion in the caselaw on the issue of how to determine which of the "multiple convictions" is the "most serious" offence is likely due to the fact that in the vast majority of cases it is obvious which of the multiple convictions is the "most serious". Typically, that question will be answered by simply examining the legally prescribed punishments attached to each of the possible convictions.

[15] Identical Legal Elements

In this case, however, that analysis provides no help in determining which of the two offences is the "most serious". The two counts at issue in this case involve a finding of guilt for the exact same offence; namely, PFTP under s. 5(2) of the CDSA. In addition, both counts involve a finding of guilt in relation to a substance proscribed by the same Schedule in the CDSA (i.e., Schedule I). Consequently, each of the two counts at issue in this case attracts the same potential maximum (and minimum) sentences.

[16] Rejection of Crown's Sentencing Range Argument

Nevertheless, the Crown contends that PFTP fentanyl must be considered the more serious of the two offences because the range of sentences for PFTP fentanyl is higher than the range of sentences for PFTP equivalent amounts of heroin. I reject that argument for the following three reasons:

1. Systemic Concerns with Premature Sentencing Analysis

Given that the Kienapple principle determines which convictions will proceed to the sentencing phase, it seems wrong in principle for a court to first approximate the sentence it would impose on each of the multiple convictions in an effort to then decide which conviction will move forward for a determination of sentence. Such an approach could create a perception that the judge had already determined the sentence at the preliminary Kienapple stage before having heard evidence and argument at the actual sentencing hearing. Alternatively, if the Kienapple issue were to be informed by a complete sentencing record, considerable time would needlessly be spent as the parties make their case for the appropriate sentence on each of the multiple convictions at issue.

2. Lack of Legislative or Jurisprudential Support

Apart from the systemic challenges created by the Crown's proposed approach to the "more serious" determination, I am not persuaded that the range of appropriate sentences for PFTP fentanyl is necessarily higher than the range of sentences for PFTP an equivalent amount of heroin. That argument is not supported by either the legislation or the sentencing jurisprudence. Despite being aware of the dangers associated with fentanyl and heroin – having named both as proscribed substances in the CDSA – Parliament has not seen fit to carve out any specific sentencing approach for either substance. Both heroin and fentanyl are listed as Schedule I substances. Moreover, in R. v. Loor, the Ontario Court of Appeal expressly declined to fix a range of appropriate sentences for trafficking in fentanyl.

3. Absence of Evidence Regarding Quantity of Fentanyl

In any event, even if trafficking in fentanyl could "arguably" be considered the more serious of the two offences, considering that the Crown in this case tendered no evidence to prove that the quantity of fentanyl was anything more than a trace amount, I would adopt the reasoning of Justice Green in R. v. Lemieux in finding that the Crown has failed to meet its burden on that issue.

[17] Applying Factual and Legal Nexus Analysis

Rather than reason backwards from a premature determination of the sentence for each of the multiple convictions, I prefer to approach the issue using the principles articulated in Kienapple and its legal progeny. In my view, the determination of which offences to conditionally stay under Kienapple requires consideration of the same factors which courts have used to determine whether multiple convictions should even engage the Kienapple doctrine. Ever since the Supreme Court of Canada's 1986 decision in R. v. Prince, that determination has turned on whether there is both a "factual" and a "legal" nexus between the multiple convictions. It is those same factors which should also determine which of the multiple convictions are the "most serious" and, thus, should proceed through to a decision on sentence.

[18] Legal Elements Analysis

As noted above, determining which of the multiple convictions is the "most serious" has typically been settled by examining the "legal" elements of the various convictions. An offence carrying a lengthier maximum punishment or a mandatory minimum punishment could readily be determined to be more serious than an offence with a lesser maximum or no mandatory minimum. As noted above, the identical legal elements of the multiple convictions in this case do not tilt the balance in favour of either one being the "most serious".

[19] Proportionality and Fair Labelling

When the "most serious" issue cannot be determined by a comparative analysis of the multiple convictions' legal elements, a court must then turn to the "factual" elements with a view to determining which of those multiple convictions fully and fairly reflects the offender's moral blameworthiness for the single criminal act. Proportionality is the fundamental principle of sentencing. As the Supreme Court of Canada emphasized in R. v. Nasogaluak:

… the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

Proportionate sentencing was the animating purpose behind the emergence of the Rule in Kienapple. Proper application of the proportionality principle begins with fair labelling of the offender's criminal conduct.

[20] Defendant's Knowledge and Crown's Concession

In this case, the Crown conceded that there was no evidence Mr. Robinson ever knew (or even suspected) that the brown substance he possessed for the purpose of trafficking contained any fentanyl. When they seized that brown substance from Mr. Robinson, the police believed it was heroin. It was only once the brown substance had been scientifically analyzed that it became known some detectable amount of fentanyl had been mixed in with that heroin. However, like in R. v. Lemieux, the Crown here tendered no evidence to suggest that the quantity of fentanyl detected in the brown substance possessed by Mr. Robinson was anything more than a trace amount.

[21] Absence of Evidence of Added Risk

The mere presence of some fentanyl may have been enough in law to sustain the finding of guilt on the PFTP fentanyl count. However, in a case like this, evidence that there was a detectable amount of fentanyl cannot alone sustain a finding that PFTP fentanyl was the "most serious" offence within the meaning of Kienapple. There was no evidence showing that the brown substance in Mr. Robinson's possession contained an amount of fentanyl sufficient to pose some added risk of harm -- beyond the serious risk of harm already created by Mr. Robinson's possession of heroin for the purpose of trafficking. Nor was there any evidence showing that Mr. Robinson knew or ought to have known that the heroin he was intending to traffic was potentially more harmful because it may contain some fentanyl. Accordingly, there is nothing in the record before me to support a finding that the circumstances of the PFTP fentanyl offence were more serious than the circumstances of Mr. Robinson's PFTP heroin offence. The Crown cannot rely on mere speculation to support a factual finding aimed at justifying its demand for a longer term of imprisonment. The Crown must bear some measure of a burden when it comes to facts which may serve to increase an offender's legal jeopardy.

[22] Substituted Mental Element

Most importantly, the Crown in this case acknowledged that its only basis for establishing the requisite mental element for the charge of PFTP fentanyl was Mr. Robinson's admission that he knowingly possessed heroin for the purpose of trafficking. The Crown correctly contended that this belief was sufficient to support a finding of guilt for both PFTP fentanyl and PFTP heroin. While the findings of guilt on both counts may have been legally justified, the substituted mental element advanced by the Crown on the PFTP fentanyl count makes clear that a conviction for the PFTP heroin count fully and fairly reflects Mr. Robinson's moral culpability for having intended to traffic the brown substance he believed to be heroin.

[23] Disposition

The finding of guilt on the count of PFTP fentanyl (Count 6) is therefore conditionally stayed and a conviction is registered on the count of PFTP heroin (Count 3). Mr. Robinson will be sentenced on Count 3 having regard to the agreed facts presented at trial and any evidence presented at the sentencing hearing.

Released: May 15, 2018

Signed: Justice Paul Burstein