R. v. Prince, [1986] 2 S.C.R. 480

Her Majesty The Queen Appellant

v.

Sandra Prince Respondent

indexed as: r. v. prince

File No.: 18223.

1986: April 23; 1986: November 6.

Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Le Dain and La Forest JJ.

on appeal from the court of appeal for manitoba

Criminal law ‑‑ Kienapple principle ‑‑ Accused’s stabbing of a pregnant woman causing child’s premature birth and his death ‑‑ Accused convicted of causing bodily harm to the mother ‑‑ Whether rule against multiple convictions precludes a trial on a charge of manslaughter of the child.

Criminal law ‑‑ Procedure ‑‑ Prerogative writs ‑‑ Pre‑trial motion for a stay based on the principle in Kienapple dismissed ‑‑ Prohibition and certiorari sought by the accused ‑‑ Whether superior courts should decline to grant prerogative remedy on an interlocutory application in respect of the rule against multiple convictions.

The accused stabbed a pregnant woman in the abdomen causing the premature birth of her child and his death. The accused, who was convicted of causing bodily harm to the mother at her first trial, made a preliminary motion requesting a stay of proceedings on a charge of manslaughter of the child on the basis of the principle in Kienapple. The trial judge denied the motion holding that Kienapple was inapplicable. The accused then made an application to the Court of Queen's Bench for an order of prohibition to prohibit the trial court from proceeding on the manslaughter charge and for an order of certiorari to quash the indictment. The application was dismissed. On appeal, the Court of Appeal held that the accused could not be convicted on the charge of manslaughter, granted certiorari and quashed the indictment. This appeal is to determine whether the accused, who was convicted of causing bodily harm in respect of the mother, may also be tried for manslaughter in respect of the deceased child.

Held: The appeal should be allowed.

The rule against multiple convictions is applicable when there is a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences which form the basis of two or more charges. In most cases the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges? It will not always be easy to define when one act ends and another begins, but when such difficulties arise they can be resolved 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, and whether the accused's actions were related to each other by a common objective.

No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender's accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted. The requirement of sufficient proximity between offences will therefore only be satisfied if there is no additional and distinguishing element that goes to guilt in the offence for which a conviction is sought to be precluded by the Kienapple principle.

An element cannot be regarded as distinct or additional for the purpose of the rule against multiple convictions where (1) an element in one offence is a particularization of an element in another offence; (2) there is more than one method, embodied in more than one offence, to prove a single delict; and (3) when Parliament in effect deems a particular element to be satisfied by proof of a different nature because of social policy or inherent difficulties of proof. In applying these criteria, however, it is important not to carry logic so far as to frustrate Parliament's intent or as to lose sight of the overarching question whether the same cause, matter or delict underlies both charges.

In the case at bar, Kienapple is not applicable. The requirement of a sufficient factual nexus is satisfied‑‑a single act of the accused grounds both charges‑‑but there is no sufficient correspondence between the elements of the two offences to sustain the operation of the rule against multiple convictions. The first offence contains as an essential ingredient the causing of bodily harm to the mother; the second requires proof of the death of her child. Neither of these elements can be subsumed into the other. Moreover, in so far as crimes of personal violence are concerned, the rule against multiple convictions is inapplicable when the convictions relate to different victims.

Finally, notwithstanding the possibility of jurisdictional error in some cases, a superior court should generally decline to consider the merits of a Kienapple argument on an interlocutory application.

Cases Cited

Distinguished: Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729; considered: R. v. Hagenlocher (1981), 1981 CanLII 3239 (MB CA), 65 C.C.C. (2d) 101, aff'd 1982 CanLII 3914 (SCC), [1982] 2 S.C.R. 531; Krug v. The Queen, 1985 CanLII 2 (SCC), [1985] 2 S.C.R. 255; Côté v. The Queen, 1974 CanLII 137 (SCC), [1975] 1 S.C.R. 303; approved: R. v. Logeman (1978), 1978 CanLII 3916 (BC CA), 5 C.R. (3d) 219; R. v. Lecky (1978), 1978 CanLII 2524 (NS SC), 42 C.C.C. (2d) 406; R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65; R. v. Pinkerton (1979), 1979 CanLII 2998 (BC CA), 46 C.C.C. (2d) 284; R. v. Père Jean Grégoire de la Trinité (1980), 1980 CanLII 2902 (QC CA), 60 C.C.C. (2d) 542; referred to: R. v. Quon, 1948 CanLII 7 (SCC), [1948] S.C.R. 508; R. v. Siggins (1960), 1960 CanLII 109 (ON CA), 127 C.C.C. 409; Connelly v. D.P.P., [1964] A.C. 1254; R. v. Boyce (1975), 1975 CanLII 569 (ON CA), 23 C.C.C. (2d) 16; R. v. Allison (1983), 1983 CanLII 3567 (ON CA), 33 C.R. (3d) 333; McKinney v. The Queen, 1980 CanLII 164 (SCC), [1980] 1 S.C.R. 401, aff'g (1979), 1979 CanLII 2926 (MB CA), 46 C.C.C. (2d) 566; R. v. Harrison (1978), 1978 CanLII 395 (BC CA), 7 C.R. (3d) 32; R. v. Taylor (1979), 1979 CanLII 2879 (NL CA), 48 C.C.C. (2d) 523; R. v. Langevin (1979), 1979 CanLII 2999 (ON CA), 47 C.C.C. (2d) 138; McGuigan v. The Queen, 1982 CanLII 41 (SCC), [1982] 1 S.C.R. 284; R. v. Loyer, 1978 CanLII 194 (SCC), [1978] 2 S.C.R. 631; R. v. Gushue (1976), 1976 CanLII 52 (ON CA), 32 C.C.C. (2d) 189, aff'd on other grounds 1979 CanLII 56 (SCC), [1980] 1 S.C.R. 798; Terlecki v. The Queen, 1985 CanLII 16 (SCC), [1985] 2 S.C.R. 483; R. v. Birmingham and Taylor (1976), 1976 CanLII 1371 (ON CA), 34 C.C.C. (2d) 386; Hewson v. The Queen, 1978 CanLII 45 (SCC), [1979] 2 S.C.R. 82.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34 as amended, ss. 11, 205(5)(a), 206(2), 589, 663(2), 666(1).

Authors Cited

Béliveau, Pierre et Diane Labrèche. "L'élargissement du concept de "double jeopardy" en droit pénal canadien: de bis puniri a bis vexari" (1977), 37 R. du B. 589.

Braithwaite, William J. "Developments in Criminal Law and Procedure: The 1979‑80 Term" (1981), 2 Supreme Court L. R. 177.

Braithwaite, William J. "Down to the Core of the Kienapple" (1979), 9 C.R. (3d) 88.

Chasse, Kenneth L. "A New Meaning for Res Judicata and its Potential Effect on Plea Bargaining" (1974), 26 C.R.N.S. 20, 48 and 64.

Ewaschuk, E. G. "The Rule Against Multiple Convictions and Abuse of Process" (1975), 28 C.R.N.S. 28.

Jordan, James C. "Application and Limitations of the Rule Prohibiting Multiple Convictions: Kienapple v. The Queen to R. v. Prince" (1984‑85), 14 Man. L. J. 341.

Klinck, Dennis R. " "The Same Cause or Matter": The Legacy of Kienapple" (1983‑84), 26 Crim. L. Q. 280.

Leonoff, Heather and David Deutscher. "The Plea and Related Matters". In Criminal Procedure in Canada. Edited by Vincent Del Buono. Toronto: Butterworths, 1982, pp. 229‑262.

Mewett, Alan W. "Nemo Bis Vexari" (1973‑74), 16 Crim. L. Q. 382.

Salhany, Roger E. Canadian Criminal Procedure, 4th ed. Aurora: Canada Law Book, 1984.

Sheppard, A. F. "Criminal Law‑‑Rule Against Multiple Convictions" (1976), 54 Can. Bar Rev. 627.

APPEAL from a judgment of the Manitoba Court of Appeal (1983), 1983 CanLII 3571 (MB CA), 27 Man. R. (2d) 63, 9 C.C.C. (3d) 155, [1984] 2 W.W.R. 114, allowing the accused's appeal from a judgment of Kroft J. dismissing the accused's application for certiorari. Appeal allowed.

Stuart Whitley, for the appellant.

Barry Hart Sinder, for the respondent.

The judgment of the Court was delivered by

1. The Chief Justice‑‑This appeal raises once again the scope of the principle enunciated in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. A single act of the respondent, Sandra Prince, caused injury to one person and is alleged to have caused the death of another. Prince has been convicted of causing bodily harm in respect of the injured victim. The question is whether she may also be tried for manslaughter in respect of the deceased victim.

I

Facts

2. On January 1, 1981, Sandra Prince, by means of a single blow to the abdomen stabbed Bernice Daniels. At the time Daniels was six months pregnant. On January 2, 1981, Prince was charged with the attempted murder of Daniels. On January 6, 1981, Daniels gave birth to a child who lived for 19 minutes and then died. The cause of death is alleged to be traceable to the stabbing. The autopsy report indicated that the knife penetrated the amniotic sac, causing contamination of the amniotic fluid which in turn caused the child's premature birth. Because the fetus was not sufficiently developed, the child died.

3. Between December 7, 1981, and January 4, 1982, Prince was tried and acquitted of the attempted murder of Daniels but was convicted on a charge of causing bodily harm to Daniels. An appeal to the Manitoba Court of Appeal in respect of her conviction and sentence (six months imprisonment) was dismissed on October 20, 1982.

4. In the meantime, on July 1, 1981, following an inquest into the death of the child, and following Prince's committal for trial on the charge of attempted murder of Daniels, Prince was charged with manslaughter of the child as follows:

THAT she, the said SANDRA PRINCE, between the thirty‑first day of December, in the year of our Lord one thousand nine hundred and eighty, and the seventh day of January, in the year of our Lord one thousand nine hundred and eighty‑one, both dates inclusive, at the City of Winnipeg, in the Eastern Judicial District, in the Province of Manitoba, did unlawfully cause death to the unnamed male child of Bernice Daniels, and did thereby commit manslaughter.

A preliminary inquiry regarding this charge was held in February, 1982, and Prince was committed to stand trial. On April 29, 1983, Prince's lawyer made a preliminary motion to the trial judge, Barkman Co. Ct. J., requesting him to enter a stay of proceedings on the basis of the principle in Kienapple v. The Queen.

II

Judgments in the Manitoba Courts

5. Barkman Co. Ct. J. denied the motion. He held that Kienapple was inapplicable because, although there was only one act of the accused, there were two persons affected and there were two different elements: the wounding of Daniels, and the wounding of the child ultimately resulting in his death. Barkman Co. Ct. J. said that it was difficult to reconcile the decision in R. v. Hagenlocher (1981), 1981 CanLII 3239 (MB CA), 65 C.C.C. (2d) 101 (Man. C.A.) with other cases. The majority of the Manitoba Court of Appeal left the impression in its reasons in that case that the focus of the Kienapple inquiry was on the acts of the accused which grounded the charges. If a single act was involved, it appeared that Kienapple would be applicable according to those reasons. Barkman Co. Ct. J. suggested that whether Hagenlocher was correctly decided was a question which might possibly be resolved in time. In his view, the majority of the authorities indicated that Kienapple was inapplicable in multiple‑victim situations.

6. Prince then applied to the Court of Queen's Bench for an order of prohibition to prohibit the County Court Judges' Criminal Court from trying her on the manslaughter indictment, and for an order of certiorari quashing the indictment. Without dealing with the merits of the Kienapple argument, Kroft J. dismissed the application. In his view, the application was in the nature of an appeal from the decision of Barkman Co. Ct. J. on the preliminary motion. He felt the proper course for Prince was to appeal the decision of the trial judge at the conclusion of the trial.

7. In the Manitoba Court of Appeal, on an appeal from the decision of Kroft J., Matas J.A. delivered the reasons for a unanimous panel consisting also of O'Sullivan and Huband JJ.A. Matas J.A. observed that the decision of the Manitoba Court of Appeal in R. v. Hagenlocher was affirmed by this Court, 1982 CanLII 3914 (SCC), [1982] 2 S.C.R. 531, for the reasons delivered orally by Laskin C.J.:

We do not need to hear you, Mr. Margolis and Mr. Zaifman. We are all of the opinion that the conclusions reached by the majority judgment of the Manitoba Court of Appeal in applying the Kienapple principle were correct and hence this appeal must accordingly be dismissed.

Matas J.A. felt that Hagenlocher (which I will summarize below) was applicable to the facts of the present case. Accordingly, Prince could not be convicted on the manslaughter indictment. The Court of Appeal granted certiorari and quashed the indictment, noting that it would have been a jurisdictional error for Barkman Co. Ct. J. to have proceeded with a trial on the manslaughter charge and that no purpose would be served by refusing relief to Prince and thereby requiring her to submit to an unnecessary trial: (1983), 1983 CanLII 3571 (MB CA), 27 Man. R. (2d) 63, 9 C.C.C. (3d) 155, [1984] 2 W.W.R. 114.

III

The Kienapple Case

8. Since this Court's decision in Kienapple, there has been considerable controversy about the nature and scope of the principle of res judicata articulated for the majority by Laskin J., as he then was. Various commentators have expressed differing views about the meaning and application of the Kienapple case: see Dennis R. Klinck, " "The Same Cause or Matter": The Legacy of Kienapple" (1983‑84), 26 Crim. L. Q. 280; James C. Jordan, "Application and Limitations of the Rule Prohibiting Multiple Convictions: Kienapple v. The Queen to R. v. Prince" (1984‑85), 14 Man. L. J. 341; Alan W. Mewett, "Nemo Bis Vexari" (1973‑74), 16 Crim. L. Q. 382; A. F. Sheppard, "Criminal Law‑‑Rule Against Multiple Convictions" (1976), 54 Can. Bar Rev. 627; Kenneth L. Chasse, "A New Meaning for Res Judicata and its Potential Effect on Plea Bargaining" (1974), 26 C.R.N.S. 20, 48, 64; E. G. Ewaschuk, "The Rule Against Multiple Convictions and Abuse of Process" (1975), 28 C.R.N.S. 28; Pierre Béliveau and Diane Labrèche, "L'élargissement du concept de "double jeopardy" en droit pénal canadien: de bis puniri a bis vexari" (1977), 37 R. du B. 589 at pp. 628‑36; William J. Braithwaite, "Down to the Core of the Kienapple" (1979), 9 C.R. (3d) 88; Roger E. Salhany, Canadian Criminal Procedure (4th ed. 1984), at pp. 258‑63; Heather Leonoff and David Deutscher, "The Plea and Related Matters", in Vincent Del Buono (ed.), Criminal Procedure in Canada (1982), at pp. 258‑62; William J. Braithwaite, "Developments in Criminal Law and Procedure: The 1979‑80 Term" (1981), 2 Supreme Court L. R. 177, at pp. 213‑19. The courts also have expressed widely differing views regarding the proper scope of the Kienapple principle: contrast, for example, the majority opinion of Huband J.A. with the dissenting opinion of Monnin J.A., as he then was, in R. v. Hagenlocher.

9. The variance of views within the judiciary and in the learned journals suggests that the time may well be ripe for a review of the jurisprudence in this area. The appropriate point of departure is, of course, the judgment of the majority in Kienapple in which an accused was indicted on two counts in respect of a single act of non‑consensual sexual intercourse with a thirteen year old girl who was not his wife. The defendant, Kienapple, was charged with rape contrary to s. 143 and unlawful carnal knowledge of a female under fourteen years of age contrary to s. 146(1) of the Criminal Code. At page 744, Laskin J. said:

It is plain, of course, that Parliament has defined two offences in ss. 143 and 146(1), but there is an overlap in the sense that one embraces the other when the sexual intercourse has been with a girl under age fourteen without her consent. It is my view that in such a case, if the accused has been charged, first, with rape and, secondly, with a s. 146(1) offence, and there is a verdict of guilty of rape, the second charge falls as an alternative charge and the jury should be so directed. Correlatively, however, the jury should also be directed that if they find the accused not guilty of rape they may still find him guilty under s. 146(1) where sexual intercourse with a girl under age fourteen has been proved.

(Emphasis added.)

10. In describing the rationale underlying his conclusion Laskin J. referred to a principle that there ought not to be multiple convictions for the same "delict", "matter" or "cause". At page 750, he explained:

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.

(Emphasis added.)

And at p. 751:

If there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in a second count, the situation invites application of a rule against multiple convictions:...

(Emphasis added.)

The majority judgment at p. 753, however, recognized that Parliament could create two separate offences out of the same matter and could mandate multiple convictions if it made clear its intentions in this regard.

11. After considering the legislative history of the two offences in the Kienapple case, Laskin J. stated at pp. 753‑54:

If any conclusion can be drawn from this short history, it is that carnal knowledge of a victim under age ten, and later under age fourteen, with its lesser punishment after 1877 (and until that for rape was changed), was regarded as an alternative charge to rape, unnecessary where there was no consent (since age was not and is not a necessary averment in rape) but available where proof of want of consent could not be made or was doubtful.

(Emphasis added.)

12. Professor Klinck in the following passage at p. 286 of his article, " "The Same Cause or Matter": The Legacy of Kienapple", supra, has in my view correctly identified the manner in which the two charges in Kienapple were "alternative" to each other:

Sexual intercourse with a female under 14 could be regarded as a kind of "constructive rape"; it might be said that the statute deems a girl under 14 to be incapable of consenting.

It is only in this fashion that it can properly be said that "the same or substantially the same elements" made up the offences of rape and carnal knowledge of a female under 14 years of age.

13. Several commentators on the Kienapple decision have suggested that res judicata in criminal law is an inappropriate foundation upon which to rest a rule against multiple convictions, or at least that a new meaning had to be given to res judicata in order to support the Kienapple decision: Sheppard, supra, at p. 635; Ewaschuk, supra, at p. 30; Jordan, supra, at pp. 347‑48; Chasse, supra, at pp. 20‑21; and Mewett, supra, at p. 385. There may be some merit to questioning the choice of terminology selected by the majority, and for this reason I prefer to refer to the doctrine enunciated in Kienapple as a rule against multiple convictions or, simply, as the Kienapple principle.

14. What cannot seriously be denied, however, is that there was antecedent Canadian case law precluding multiple convictions in circumstances that did not fall neatly within the plea of autrefois convict, or within s. 11 of the Criminal Code (prohibiting multiple punishment for the "same offence"), or within the requirements of an included offence under s. 589: see, for example, R. v. Quon, 1948 CanLII 7 (SCC), [1948] S.C.R. 508, and R. v. Siggins (1960), 1960 CanLII 109 (ON CA), 127 C.C.C. 409 (Ont. C.A.) These cases, amongst others, prior to the Court's decision in Kienapple, make it clear that the 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. I therefore cannot agree with those commentators who refer to the Kienapple case as having created an entirely "new defence": Chasse, supra at p. 20; Jordan, supra, at p. 356. What was new in Kienapple relative to Quon (though not to Siggins) was the abandoning of an attempt to give effect to a rule against multiple convictions by "reading down" a Criminal Code provision. What was also new was an express recognition that the test for the application of the rule had to be framed not in terms of whether the offences charged were the "same offences" (or "included offences"), but in terms of whether the same "cause", "matter" or "delict" was the foundation for both charges.

15. This second change acknowledges that "offence" is a term of art and any given offence cannot be "the same as" or "included in" any other offence unless there is a precise correspondence in the definition of the offences. In the words of Lord Devlin, "legal characteristics are precise things and are either the same or not": Connelly v. D.P.P., [1964] A.C. 1254 (H.L.) See also Klinck, supra, at p. 285. In short, I believe it was the acknowledgment of the independent legal identity of different offences which led the majority in Kienapple to its careful choice of the words, "cause", "matter", or "delict" in lieu of "offence".

16. Unfortunately, some commentators and courts have wrongly inferred from these words that there need be no substantial nexus between the offences for which an application of the Kienapple principle is sought, providing there is a common act of the accused underlying the charges. The excerpts which I have quoted above from the Kienapple case, including phrases such as "substantially the same elements", "alternative charges", and "one [offence] embraces the other", suggest that the majority thought otherwise.

IV

The Scope of the Kienapple Principle

(i) The Factual Nexus Between the Charges

17. It is elementary that Kienapple does not prohibit a multiplicity of convictions, each in respect of a different factual incident. Offenders have always been exposed to criminal liability for each occasion on which they have transgressed the law, and Kienapple does not purport to alter this perfectly sound principle. It is therefore a sine qua non for the operation of the rule against multiple convictions that the offences arise from the same transaction.

18. The degree of factual identity between the charges that is required to sustain the application of the rule is exemplified by the decision of this Court in Côté v. The Queen, 1974 CanLII 137 (SCC), [1975] 1 S.C.R. 303, which involved two offences normally capable of supporting the rule against multiple convictions: see Hewson v. The Queen, 1978 CanLII 45 (SCC), [1979] 2 S.C.R. 82, at p. 97. In Côté, the accused had been found in possession of property two years after his conviction for a robbery in respect of the same property. The accused had been sentenced for the robbery offence, imprisoned and released from prison when the police found him in possession of the stolen property. Evidently the accused had hidden the fruits of his robbery before he served his jail sentence. It was argued that possession by the original thief was merely a continuation of the act of theft.

19. The majority of the Court, however, held that the accused's possession was sufficiently removed in time and circumstance from the original taking of the property so that the accused could be convicted of both offences. Fauteux C.J. (Ritchie, Abbott and Judson JJ. concurring) wrote, at pp. 310‑11:

In my opinion one cannot validly maintain, on the one hand, that continuation of the thief's possession‑‑whether for weeks, months or years‑‑is always a continuation of the act of theft or, if one prefers, a continuation of the commission of the theft, and one cannot, on the other hand, maintain that at the very time and place in which the thief takes or converts the thing, and so acquires possession of it, he is committing the offence of unlawful possession dealt with in s. 296.

Determination of the time when the offence of theft is consummated and the offence of unlawful possession, described in s. 296, so far as the thief is concerned, begins, cannot be resolved in the abstract. However, the difficulty that may exist in determining this time, according to the circumstances of each case, does not affect the substance of the law.

For Pigeon J. (Martland J. concurring) it was the intervening conviction itself which separated the theft from the possession. In his view, an accused could not receive judicial sanction to continue breaking the law. For a continuing offence there is no undue multiplication of convictions when the second conviction relates to a continuation of the offence beyond the date of the first conviction.

20. In most cases, I believe, the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges? As Côté demonstrates, however, it will not always be easy to define when one act ends and another begins. Not only are there peculiar problems associated with continuing offences, but there exists the possibility of achieving different answers to this question according to the degree of generality at which an act is defined: see Klinck, supra, at p. 292; Leonoff and Deutscher, supra, at p. 261; and Sheppard, supra, at p. 638. 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.

(ii) The Nexus Between the Offences: Need There be One?

21. The next question which must be addressed is whether the presence of a sufficient factual nexus is the only requirement which must be met in order to justify application of the Kienapple principle. Counsel for Sandra Prince refers in his factum to the Kienapple principle as one relating to multiple convictions for the same act. Similarly, Sheppard, in his early commentary on Kienapple, propounds a same transaction test for the rule against multiple convictions. Some courts, too, have referred to the "same act" or "same transaction" underlying two offences in terms which might suggest that that was sufficient to sustain the operation of the rule: see, for example, R. v. Boyce (1975), 1975 CanLII 569 (ON CA), 23 C.C.C. (2d) 16 (Ont. C.A.), R. v. Allison (1983), 1983 CanLII 3567 (ON CA), 33 C.R. (3d) 333 (Ont. C.A.) and Hagenlocher (Man. C.A.)

22. In my opinion, the application of Kienapple is not so easily triggered. Once it has been established that there is a sufficient factual nexus between the charges, it remains to determine whether there is an adequate relationship between the offences themselves. The requirement of an adequate legal nexus is apparent from the use by the majority in Kienapple of the words "cause", "matter" or "delict" in lieu of "act" or "transaction" in defining the principle articulated in that case. More telling is the fact that Laskin J. went to considerable pains to discuss the legislative history of rape and carnal knowledge of a female under 14 years and to conclude that the offences were perceived as alternative charges when there was non‑consensual intercourse with a female under 14. I am not prepared to regard Laskin J.'s analysis in this regard as unnecessary or irrelevant to the outcome in Kienapple, which it would of course be if the rule against multiple convictions applied whenever there was a sufficient factual nexus between the charges.

23. In my opinion, the weight of authority since Kienapple also supports the proposition that there must be sufficient nexus between the offences charged to sustain the rule against multiple convictions. In a unanimous judgment in McKinney v. The Queen, 1980 CanLII 164 (SCC), [1980] 1 S.C.R. 401, delivered orally by Laskin C.J., the Court saw no reason for interfering with a decision of the Manitoba Court of Appeal reported at (1979), 1979 CanLII 2926 (MB CA), 46 C.C.C. (2d) 566. Although Kienapple was not referred to in the reasons of this Court, it had been argued in the Court of Appeal. McKinney and others were charged and convicted of hunting out of season and hunting at night with lights contrary to ss. 16(1) and 19(1), respectively, of the Wildlife Act, R.S.M. 1970, c. W140. Both charges arose out of the same hunting incident. O'Sullivan J.A. for the majority held that the case involved two "delicts". Monnin J.A., dissenting on another issue, said that hunting out of season and hunting with lights were two different "matters", totally separate one from the other and not alternative one to the other. The judges of the Court of Appeal all agreed that Kienapple was inapplicable. Thus, notwithstanding there was but a single act of hunting, there were distinct delicts, causes or matters which would sustain separate convictions.

24. Numerous other cases can be cited to illustrate that a single act of an accused can involve two or more delicts against society which bear little or no connection the one to the other. R. v. Logeman (1978), 1978 CanLII 3916 (BC CA), 5 C.R. (3d) 219 (B.C.C.A.) involved charges of driving while suspended and impaired driving; R. v. Lecky (1978), 1978 CanLII 2524 (NS SC), 42 C.C.C. (2d) 406 (N.S. Co. Ct.), contributing to juvenile delinquency and trafficking in a narcotic; R. v. Earle (1980), 24 Nfld. & P.E.I.R. 65 (Nfld. C.A.), breach of recognizance and possession of a narcotic; R. v. Pinkerton (1979), 1979 CanLII 2998 (BC CA), 46 C.C.C. (2d) 284 (B.C.C.A.), breach of probation and common assault; R. v. Père Jean Grégoire de la Trinité (1980), 1980 CanLII 2902 (QC CA), 60 C.C.C. (2d) 542 (Que. C.A.), contempt of court and unlawfully detaining children. Notwithstanding that a single act of the accused appears in each of these cases to have given rise to two charges, Kienapple was held to be inapplicable. In my view, these cases were correctly decided. If an accused is guilty of several wrongs, there is no injustice in his or her record conforming to that reality. In short, I agree with the following remarks of Lambert J.A. in R. v. Harrison (1978), 1978 CanLII 395 (BC CA), 7 C.R. (3d) 32 (B.C.C.A.), at p. 37:

It is not sufficient to consider the charges and to ask whether conviction on one will involve conviction on another. It is not sufficient to consider the facts and to ask whether only one act is involved. The facts and the charges must be considered together and in their relationship to each other.

There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions.

(iii) Is it Sufficient that the Offences Share a Common Element?

25. It has frequently been suggested that the presence of a common element in the offences charged will be sufficient to attract the Kienapple principle. Ewaschuk, supra, at p. 41 of his 1975 article on the rule against multiple convictions suggests:

If the offences stem from the same act and have a common element or elements, then Kienapple should apply.

The common element test rests on the proposition or principle that an act which constitutes an element of an offence can only be used to sustain a single conviction. It is thereafter "used up" for the purposes of the criminal law. Mewett, supra, at pp. 383‑84, explained the Kienapple case in this light:

Kienapple is as good an illustration as any. The offence on count one embraces the actus reus of (i) sexual intercourse (ii) woman not his wife and (iii) no consent. On count two, it embraces (i) sexual intercourse (ii) woman not his wife and (iii) under fourteen. But two of the elements necessary under count two have become, as Laskin, J., stated, res judicata‑‑they are used up, leaving, on count 2 only the third element dangling in the air. The acts (nouns) of the accused caused by his acting can only be used once‑‑either for count one or count two but not both. Any acts not previously adjudicated remain, but, detached from the now adjudicated other acts, could not support a conviction.

(Emphasis added.)

26. This principle against the duplication of elements appears to underlie a number of judicial decisions: see, for example, R. v. Taylor (1979), 1979 CanLII 2879 (NL CA), 48 C.C.C. (2d) 523 (Nfld. C.A.), at pp. 537‑38 and R. v. Allison, supra, at pp. 339‑40. But, like the "same act" test, it fails to explain a number of cases which I believe were correctly decided, such as McKinney and Logeman.

27. In any event, I observe that a common element test has already been considered and rejected by this Court. In Côté v. The Queen, supra, at p. 310, Fauteux C.J. wrote:

The fact that [a thief's] possession is a common ingredient of both offences [i.e. theft and unlawful possession] is no reason to exclude or ignore what is actually the crucial factor distinguishing one from the other, and is of the essence of their respective nature.

The majority in Côté thus pointed in the direction of a test which focused not on the presence or absence of a common element, but on the presence or absence of additional, distinguishing elements.

28. Indeed, such a focus is apparent even in the Kienapple case. At page 755, Laskin J. specifically addressed the elements that were different in the two offences for which the Crown sought convictions:

In the circumstances of the present case, the superadded element of age in s. 146(1) does not operate to distinguish unlawful carnal knowledge from rape. Age under fourteen is certainly material where consent to the sexual intercourse is present; but once that is ruled out, as it is in the present case, it becomes meaningless as a distinguishing feature of the offences of rape and unlawful carnal knowledge.

(Emphasis added.)

29. Most recently, in Krug v. The Queen, 1985 CanLII 2 (SCC), [1985] 2 S.C.R. 255, this Court unmistakably focused on the presence of distinguishing elements, rather than on the presence of shared elements, in assessing the applicability of Kienapple. Krug was charged with robbery under s. 302(d) and with various firearms offences including an offence under s. 83(1)(a). Krug submitted that the Kienapple principle at common law and as allegedly constitutionalized in ss. 7 and 11(h) of the Canadian Charter of Rights and Freedoms precluded convictions for the firearms offences. His arguments regarding the s. 83 conviction were rejected in a unanimous judgment, delivered by La Forest J.

30. La Forest J. adopted the following passage from the reasons of Martin J.A. in R. v. Langevin (1979), 1979 CanLII 2999 (ON CA), 47 C.C.C. (2d) 138 (Ont. C.A.), at p. 145:

Notwithstanding that in most cases of "armed robbery" the offender will have used the weapon, none the less, s. 83(1), by making the use of a firearm an essential element of the offence created by the subsection, unlike s. 122 which required only that the offender have a firearm on his person, imports a further element in addition to those which suffice to constitute theft while armed with a firearm.

(Emphasis added.)

Or, as expressed by La Forest J. himself at pp. 262‑63:

[The doctrine of res judicata] would apply to prevent conviction for both offences if the difference between the two was limited solely to the fact that s. 83 particularizes the form of weapon since the specific weapon was, of course, the weapon used in both offences. But s. 83 also requires that the firearms be used, an act not necessarily encompassed in being armed with it, and there was evidence of use apart from that of being armed. In short, to be convicted of an offence under s. 83 it was necessary to prove that the accused did something beyond what is required to establish the offence under s. 302(d).

(Emphasis added.)

31. It has been a consistent theme in the jurisprudence from Quon, through Kienapple and Krug that the rule against multiple convictions in respect of the same cause, matter or delict is subject to an expression of Parliamentary intent that more than one conviction be entered when offences overlap: see, in particular, McGuigan v. The Queen, 1982 CanLII 41 (SCC), [1982] 1 S.C.R. 284. In Krug, La Forest J. was careful to explain that the presence of additional, distinguishing elements was in itself an expression of such an intent. No element which Parliament has seen fit to incorporate into an offence and which has been proven beyond a reasonable doubt ought to be omitted from the offender's accounting to society, unless that element is substantially the same as, or adequately corresponds to, an element in the other offence for which he or she has been convicted.

32. I conclude, therefore, that the 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.

33. There is, however, a corollary to this conclusion. Where the offences are of unequal gravity, Kienapple may bar a conviction for a lesser offence, notwithstanding that there are additional elements in the greater offence for which a conviction has been registered, provided that there are no distinct additional elements in the lesser offence. For example, in R. v. Loyer, 1978 CanLII 194 (SCC), [1978] 2 S.C.R. 631, Kienapple was applied to bar convictions for possession of a weapon for the purpose of committing an offence when convictions were entered for the more serious offence of attempted armed robbery by use of a knife. Although the robbery charges contained the element of theft which distinguished them from the weapons charges, there were no elements in the weapons charges which were additional to or distinct from those in the robbery charges. Accordingly, it was appropriate for the Court to apply Kienapple to bar convictions on the lesser weapons charges rather than on the robbery charges.

(iv) When is an Element of an Offence not Additional or Distinct?

34. I now turn briefly to the question of when an element of an offence sufficiently corresponds to another element so that it cannot be regarded as additional or distinct. When can it be said that elements are "substantially the same" or "alternative" the one to the other? This is a question which defies precise answers. Differences of degree are often important and, as La Forest J. has pointed out, abstract logic must be supplemented by an awareness of practical considerations in ascertaining Parliament's intention in creating different offences: Krug, supra, p. 269. Without purporting to be exhaustive, I believe that there are at least three ways in which sufficient correspondence between elements can be found, each of which is subject always to the manifestation of a legislative intent to increase punishment in the event that two or more offences overlap.

35. First, an element may be a particularization of another element. In Krug, the Court was called upon to consider not only the relationship between s. 83(1)(a) and s. 302(d), as described above, but also the relationship between s. 83(1)(a) and s. 84. Section 84 made it an offence to point a firearm at a person. Section 83(1)(a), it will be recalled, made it an offence to use a firearm while committing an indictable offence. The trial judge had characterized the element of "pointing at a person" as an ingredient additional to "use". This Court disagreed, saying, "It is obvious that pointing a gun is a manner of using it" (p. 268). Accordingly, the Court referred to pointing as a particularization of use. Under the circumstances, it was difficult to believe that Parliament intended "automatically to make the same objectionable behaviour the subject of two separate offences" (p. 270).

36. In general, the particularization in one offence of an element of another offence should not be regarded as a distinguishing feature that renders Kienapple inapplicable. Parliament may create offences of varying degrees of generality, with the objective (vis‑à‑vis the more general offence) of ensuring that criminal conduct will not escape punishment because of a failure of the drafters to think of each individual circumstance in which the conduct might be committed, or with the objective (vis‑à‑vis the more specific offence) of addressing with certainty particular conduct in particular circumstances. In the absence of some indication of Parliamentary intent that there should be multiple convictions or added punishment in the event of an overlap, the particularization of an element ought not to be taken as a sufficient distinction to preclude the operation of the Kienapple principle.

37. A second way in which elements may correspond relates to there being more than one method, embodied in more than one offence, to prove a single delict. In R. v. Gushue (1976), 1976 CanLII 52 (ON CA), 32 C.C.C. (2d) 189 (Ont. C.A.), affirmed on other grounds, 1979 CanLII 56 (SCC), [1980] 1 S.C.R. 798, the accused was charged under s. 124 with giving evidence in a judicial proceeding that was contrary to his own previous evidence. He was also charged with perjury contrary to s. 121. The Court reached the conclusion that convictions under both offences would have infringed the Kienapple principle. I agree. Although s. 121 and s. 124 have different elements, the difference is clearly not a reflection of any Parliamentary intent to add extra punishment when both offences can be proven. Section 124 is designed merely to facilitate proof of false evidence having been given, notwithstanding that no one particular statement can be proven false. Parliament has merely succumbed to the imperatives of logic: if two contradictory statements are given, one of them must be false and the delict of giving false evidence must have been committed on one of the two occasions.

38. The third situation in which there is sufficient correspondence between elements to sustain the Kienapple principle is somewhat similar. It arises when Parliament in effect deems a particular element to be satisfied by proof of a different nature, not necessarily because logic compels that conclusion, but because of social policy or inherent difficulties of proof. The Kienapple case itself affords one example. There, as we have seen, the element of the victim's age served as a substitute for the element of non‑consent. A girl of less than fourteen years of age could not in Parliament's opinion meaningfully consent to sexual intercourse. Another example is provided by Terlecki v. The Queen, 1985 CanLII 16 (SCC), [1985] 2 S.C.R. 483. Although the case largely dealt with a procedural issue, the Court's decision was predicated on the applicability of Kienapple as between the offences of impaired driving contrary to s. 234 and "over 80" contrary to s. 236. Impairment is inherently difficult to prove, and Parliament has deemed a certain proportion of alcohol in one's blood to constitute an impairment of driving ability. The differences between the elements of these offences are explained by an attempt to facilitate the apprehension by the police or the conviction by the courts of persons who are guilty of essentially the same wrongful conduct: see Leonoff and Deutscher, supra, at p. 261. I believe that elements which serve only as an evidentiary proxy for another element cannot be regarded as distinct or additional elements for the purposes of the rule against multiple convictions.

39. 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. Such was the relationship between the offences in Lecky, Earle, Pinkerton and Père Jean Grégoire. In these cases, it could be argued, a substantive offence was subsumed by a greater, generic offence: Klinck, supra, at pp. 301‑02. To illustrate, the offence of breach of probation contains as an element the non‑compliance with a probation order which, as a matter of law, requires the accused to keep the peace and be of good behaviour: s. 663(2). The fact that breach of probation is an offence punishable by summary conviction (s. 666(1)) is a clear indication that Parliament cannot have intended a conviction for that offence to operate as a bar to a conviction for the substantive offence (which might attract a far more severe penalty) merely because the substantive offence might be regarded as a particularization of a failure to keep the peace and be of good behaviour. Plainly, breach of probation is an offence designed to protect the effective operation of the criminal justice system, a societal interest which is entirely different from that protected by an offence such as assault. Accordingly, Kienapple had no application in those four cases.

V

Applicability of the Kienapple Principle in the Present Case

40. As has been noted above, the respondent Sandra Prince has been convicted of causing bodily harm to Bernice Daniels. She has been charged with a second offence, namely, the manslaughter of Daniels' child, arising out of the same act of stabbing. I should, perhaps, explain that no question arises regarding the viability of a manslaughter charge founded on an act prior to the victim's birth. Section 206(2) reads as follows:

41. ...

(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.

The only issue before the Court, therefore, is the applicability of Kienapple.

41. I have no hesitation in concluding that the requirement of a sufficient factual nexus is satisfied in the present appeal. A single act of the accused grounds both charges. It is true that the stabbing produced two separate consequences, the injury to Bernice Daniels and the death of the child. But such matters as the consequences of an act, the circumstances in which it was committed, or the status of the victim are most appropriately considered in the analysis of the legal nexus requirement. For it is only when consequences, circumstances, or status are incorporated into elements of an offence that they are relevant.

42. Is there sufficient correspondence between the elements of the two offences to sustain the operation of the rule against multiple convictions? One offence contains as an essential ingredient the causing of bodily harm to Bernice Daniels. The other offence requires proof of the death of Daniels' child. I cannot see how either of these elements can be subsumed into the other. There is no sense in which it can be said that one is a particularization of the other or is designed to facilitate proof of the other.

43. The respondent relies heavily on the Hagenlocher case. The accused in Hagenlocher was charged with manslaughter and with wilfully setting fire to a substance which was likely to cause a building to catch fire contrary to s. 390. He had poured some vodka on a hotel bed and set fire to it. The fire spread through the hotel, causing the death of one person by asphyxiation and extensive property damage. On the facts it is evident that the manslaughter charge was grounded in s. 205(5)(a), which reads:

44. ...

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act

The unlawful act was the wilful setting fire to a substance. Assuming that Hagenlocher was correctly decided, in my view the result can only be justified if it is regarded as a case in which all the elements of the s. 390 offence were incorporated into a greater offence. The manslaughter charge consisted of (i) an unlawful act, particularized as the setting of a fire likely to cause a building to burn, and (ii) a consequence of that act, that is, the death of a person. No elements of the s. 390 offence remained to sustain a second conviction. If this Court adopted reasons inconsistent with those I have just outlined, then I believe the Court erred. But, in my opinion, this Court's approval of the reasoning below was restricted to the conclusion that Kienapple applied in that case. I should add that to treat the arson offence as a particularization of the "unlawful act" requirement in s. 205 is, at best, at the very outer edges of the Kienapple principle. However, the Court has not been asked to reconsider the correctness of Hagenlocher in the present appeal, and I refrain from doing so.

44. Even if the manslaughter charge in the case at bar is seen to be framed under s. 205(5)(a) rather than s. 206 the distinction between the present case and Hagenlocher is readily apparent. The lesser offence in Hagenlocher proscribed only an unlawful act, the setting of a fire. The lesser offence in the present case, on the contrary, also proscribes particular consequences which lie at the heart of that offence.

45. Although the above analysis suffices to dispose of this appeal, I wish to underline that the conclusion I have reached reflects the importance which the drafters of the Code have attached to criminal conduct that results in bodily injury or death of the victim or victims. Many of the provisions of the Criminal Code, particularly those in respect of crimes of violence, contain an escalation of penalties for acts of the accused that result in graver consequences than otherwise identical conduct. Parliament's concern for the physical safety of the public would be frustrated by holding that either of the respective elements of bodily injury to Bernice Daniels or the death of the child were (to use the words of Laskin J. in Kienapple) "meaningless as a distinguishing feature".

46. It is, moreover, of some interest to the present case that the majority judgment in Kienapple at p. 750 referred to the death of a victim of violent crime as a "new relevant element". It is clear from this reference that the consequence of a wrongful act of an accused is an "element" which is capable of distinguishing two convictions in respect of a single unlawful act by an accused.

47. Also of particular relevance to the present appeal is a passage at pp. 744‑45 in which Laskin J. referred to his conclusion in Kienapple in the following terms:

The rationale of my conclusion that the charges must be treated as alternative if there is a verdict of guilty of rape on the first count, that there should not be multiple convictions for the same delict against the same girl, has a long history in the common law.

(Emphasis added.)

It would appear from this passage that, at least in so far as crimes of personal violence are concerned, the rule against multiple convictions is inapplicable when the convictions relate to different victims. Indeed, I believe it was never within the contemplation of the majority in Kienapple that the rule enunciated therein would preclude two convictions for offences respectively containing as elements the injury or death of two different persons.

48. Society, through the criminal law, requires Prince to answer for both the injury to Bernice Daniels and the death of the child, just as it would require a person who threw a bomb into a crowded space to answer for the multiple injuries and deaths that might result, and just as it compels a criminally negligent driver to answer for each person injured or killed as a result of his or her driving: see R. v. Birmingham and Taylor (1976), 1976 CanLII 1371 (ON CA), 34 C.C.C. (2d) 386 (Ont. C.A.)

49. I have undertaken the analysis of the present case as though the respondent were seeking to bar a conviction on the lesser offence of causing bodily harm to Bernice Daniels. In fact, she seeks to bar a conviction on the more serious charge of manslaughter, having already been convicted of causing bodily harm. The Crown elected to proceed by way of successive trials rather than seek joinder. Although I do not suggest that the Crown did so in an effort to avoid the rule against multiple convictions, it is perhaps worth emphasizing that the Kienapple principle cannot be avoided by the simple expedient of proceeding in this fashion. Had I reached a different conclusion on the principal issue in this appeal, it would accordingly have been necessary to consider whether a trial on the more serious charge would have been entirely precluded, or whether, by analogy to cases such as Loyer and Terlecki, the trial should have been undertaken on the understanding that a stay would be entered on the lesser offence in the event of a conviction on the more serious offence. However, since I have concluded that Kienapple has no application to the offences charged, I need not address that issue.

50. Although it was not argued in this Court, I wish to add that in my view it is normally appropriate for a superior court to decline to grant a prerogative remedy on an interlocutory application in respect of the rule against multiple convictions. That rule has proved to be a fertile source of appeals. The delay engendered by an erroneous application of the Kienapple principle prior to the conclusion of the trial is regrettably illustrated by the present case. Prerogative remedies are discretionary, and notwithstanding the possibility of jurisdictional error in some cases, it would generally be preferable for superior courts to decline to consider the merits of a Kienapple argument on an interlocutory application.

51. I would allow the appeal, reverse the decision of the Manitoba Court of Appeal granting a writ of certiorari and an order quashing the indictment, and remit the matter for trial on the manslaughter indictment.

Appeal allowed.

Solicitor for the appellant: The Department of the Attorney General, Winnipeg.

Solicitors for the respondent: Nozick, Sinder & Associates, Winnipeg.