ONTARIO COURT OF JUSTICE
DATE: 2024-07-26 COURT FILE No.: 0711-999-22-71100125
IN THE MATTER OF an appeal under 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;
BETWEEN:
COUNTY OF ELGIN Appellant
— AND —
JOSEPH ROUSSEAU Respondent
Before: Justice Glen Donald Heard on: May 29th, 2024 Reasons for Judgment released on: July 26th, 2024
Counsel: Jack Huber, for the appellant Joseph Rousseau, Did not appear
On appeal from a stay of conviction imposed by Justice of the Peace A. Hampson on March 28th, 2024.
BACKGROUND
[1] On September 3, 2013 the respondent’s driver’s licence was suspended for the non-payment of fines. This suspension was the result of the interplay between s. 46 of the Highway Traffic Act and s. 69 of the Provincial Offences Act.
[2] On September 16, 2013, the respondent’s driver’s licence was suspended as a result of an outstanding debt owed by him to the Motor Vehicle Accident Claims Fund [1] (‘MVACF’). This suspension, is entirely unrelated to the other, flowed from s. 10 of the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41.
[3] On August 13, 2023, Mr. Jospeh Rousseau (the respondent) drove a motor vehicle on a St. Thomas highway. This would not have been problematic except his driver’s licence, as set out, was previously twice suspended. The police officer who saw him driving laid two separate charges for driving under suspension.
[4] At his ex-parte trial, Justice of the Peace Hampson ruled that R. v. Kienapple, [1975] 1 S.C.R. 729, applied and so she convicted him, but only once.
[5] The appellant [2] says the trial justice erred by improperly applying the Kienapple principle. They would have me register the second conviction and return the matter to the trial court for sentencing.
[6] The reasons that follow explain why I agree with the appellant and therefore will grant the remedy sought.
KIENAPPLE
[7] At the most fundamental level, the Kienapple principle according to Laskin J. at p. 540, is a rule designed to “protect an individual from an undue exercise by the Crown of its power to prosecute and punish”. Its proper application guards against multiple convictions (“double jeopardy”) in circumstances where the plea of autrefois convict is unavailable.
[8] It is fair to observe that while the spirit of the rule is simple, its application presents challenges.
[9] The Kienapple principle was thus revisited in R. v. Prince, [1986] 2 S.C.R. 480, where at paragraph 17 Dickson C.J. held that “it is elementary that Kienapple does not prohibit a multiplicity of convictions, each in respect of a different factual incident”.
[10] In terms of what was meant of ‘different factual incidents’ the Court recognized that, even beyond continuing offences, there often are difficulties in defining “when one act ends and another begins” [3]. Therefore, the factual nexus requirement of Kienapple may lead to different results depending on “the degree of generality at which an act is defined” [4].
[11] Following this theme, the Prince court noted with approval that in McKinney v. The Queen, [1980] 1 S.C.R. 401 (delivered orally) that a single act of hunting, one both out of season and at night while using lights [5], did not engage Kienapple and thus did not prevent multiple convictions.
[12] The Court also concluded that “a single act of an accused can involve two or more delicts against society which bear little or no connection to one and other” and then confirmed that rightfully, in those case, Kienapple ought not apply. Succinctly stating “[if] an accused is guilty of several wrongs, there is no injustice in his or her record conforming to that reality” [6].
[13] Further, in Prince, the Chief Justice warns:
I emphasize that in applying the above criteria it is important not to carry logic so far as to frustrate the intent of Parliament or as to lose sight of the overarching question whether the same cause, matter or delict underlies both charges. For example, there exist offences aimed at a particular evil which (in certain circumstances) contain as an element the commission of some other offence directed toward an entirely different wrong. [Emphasis mine.]
[14] Then in R. v. Wigman, [1987] 1 S.C.R. 246 a unanimous panel summarized the Kienapple principle as follows:
It is sufficient to simply reiterate that a two-part test must be met for the Kienapple rule to apply: there must be both a factual and legal nexus between the charges. 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.
ANALYSIS
[15] In my view, there are distinguishing factual and legal elements between the offences that preclude application of Kienapple. The trial justice’s failure to identify these elements frustrated the intent of the legislature which allows multiple suspensions to be registered against a driver’s licence. In the circumstances of this case, Mr. Rousseau was guilty of several wrongs and suffers no injustice in having his record align with reality. The following paragraphs in this section explain this conclusion.
[16] After careful consideration her Worship concluded “the wrong that is being addressed [by s. 53(1) of the HTA] is the act of driving while suspended. The reason for the suspension is not the delict or the wrong nor does it form part of it.”
[17] While her Worship correctly observed that the reason for the suspension is not a necessary element of the offence, it was open to the prosecutor seeking to sustain multiple convictions from a single incident of driving to adduce additional evidence to overcome concerns about Kienapple. Indeed, this is precisely what occurred in the case at bar.
[18] Although her Worship acknowledged that the reason for the suspension ‘may affect one’s ability to get one’s driver’s licence reinstated’ she concluded that a licence is no more suspended if there are multiple suspensions. From this conclusion flowed the finding that there was a factual nexus between each offence.
[19] With respect, I cannot agree with the learned trial justice’s finding that one’s licence is no more suspended if they suffer multiple suspensions [7]. Before his second suspension, the respondent’s suspension could have been addressed by him in one step: retire his outstanding fines. However, after his subsequent suspension on September 16, 2014 two steps lay between the respondent and his ability to lawfully drive again: retire his outstanding fines and retire his debt with the Fund.
[20] I would instead find that the respondent committed two distinct delicts. Driving, on a highway:
- Contrary to a suspension for unpaid fines;
- Contrary to a suspension the result of being a judgment debtor in relation to the MVACF;
[21] Proof of one suspension does not result in proof of the other.
[22] Here, the respondent’s single act of driving contravened each suspension. This finding aligns with R. v. Mertick, 2009 ONCJ 134 where McDermid J. found that Kienapple did not apply in a circumstance where a single act of possession of marijuana simultaneously violated two probation orders.
[23] Her Worship also concluded that the legal nexus for each offence was the same – respect for the justice system [8]. In my view, this finding was overbroad and caused her Worship to overlook distinguishing elements that preclude a finding of a legal nexus between the offences.
[24] The first of the respondent’s suspension was for unpaid fines. Fines, when paid, serve as a deterrent. Thus the respondent’s suspension for unpaid fines relates back to the societal interest of deterring infractions of the Highway Traffic Act and to maintaining the public safety of our roads and highways.
[25] The suspension that results from the non-payment of a debt owing to the MVACF is a civil debt enforcement mechanism.
[26] While I agree with her Worship that each suspension fosters the important overarching societal interest of respect for the justice system [9] I find that each suspension attends to distinct components of this much broader objective: deterrence and promoting public safety with the former and civil debt enforcement with the latter. Put differently, each societal interest is a different and distinct ingredient in a recipe that provides a well-respected justice system.
CONCLUSION
[27] When the respondent made the ill-fated decision to drive contrary to two distinct suspensions, in my view, there is no injustice in his record conforming to that reality in the circumstances of this case.
[28] For the above reasons, I would grant the respondent’s appeal, register the conviction and remit the matter to the learned trial justice for sentencing [10].
Footnotes
[1] One accrues a debt to the Motor Vehicle Accident Claims Fund, as I understand it, when they commit a tort as an uninsured impecunious motorist.
[2] The prosecutor argued both sides of the appeal in the absence of the respondent who, despite notice of the court date, like they did at trial, chose not to participate in the proceeding.
[3] Prince at para 20
[4] Ibid at para 20
[5] Both hunting out of season and hunting at night while using lights are separately prohibited acts.
[6] Supra note 3 at para 24
[7] Trial reasons at para 9
[8] Reasons at para 10
[9] As the prosecution points out in their factum, if the suspension was for medical reasons, this too would be a different delict. One where the societal interest would clearly be centered on ‘protection of the public’.
[10] It is clear to me that different societal interests being attended to by licence suspensions may attract different levels of denunciation and deterrence at the sentencing stage. Moreover, any concern about multiple convictions can be dealt with at the sentencing by applying the totality principle.