R. v. Provo, [1989] 2 S.C.R. 3
Donald Wayne Provo Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. provo
1988: December 15; 1989: July 13.
Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the court of appeal for manitoba
Criminal law ‑‑ Jurisdiction ‑‑ Appellate court ‑‑ Kienapple principle ‑‑ Incest and sexual assault ‑‑ Accused found guilty on both charges but conviction on lesser charge not entered ‑‑ Accused acquitted of incest on appeal ‑‑ Whether or not Court of Appeal had jurisdiction to substitute conviction on lesser charge even though the Crown had not appealed ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 150(1), 246.1, 613(2), (3), (8), 623(1).
The appellant was charged with committing incest by having sexual intercourse with his daughter contrary to s. 150 of the Criminal Code and with sexually assaulting her contrary to s. 246.1 of the Code. The appellant was convicted of incest and acquitted of sexual assault because of the application of the rule against multiple convictions as set in Kienapple v. The Queen. The Court of Appeal allowed the appeal from the incest charge, entered a conviction on the sexual assault charge and remitted the matter of the sexual assault charge back to the trial judge for the imposition of sentence. The Crown had not appealed the appellant's acquittal on the sexual assault charge. At issue is whether the Court of Appeal had jurisdiction to substitute a conviction for sexual assault for the acquittal entered at trial because of Kienapple when the Crown had not appealed the acquittal for sexual assault.
Held: The appeal should be dismissed.
The use of conditional stays of charges in which convictions are barred by the rule against multiple convictions is preferable to the use of acquittals. The stay is conditional on the final disposition of the more serious charge on which the accused has been convicted. If the accused's appeal from the conviction on that charge is dismissed or the accused does not appeal within the specified times, the conditional stay becomes permanent and is tantamount to a judgment or verdict of acquittal for the purpose of an appeal or a plea of autrefois acquit. If, on the other hand as is the case here, the accused's appeal from the conviction is successful, the conditional stay dissolves and the appellate courts, while allowing the appeal, can make an order remitting to the trial judge the count or counts which were conditionally stayed because of the Kienapple principle even though no appeal was taken from the conditionally stayed counts. A permanent stay should be recorded on the "Kienappled" offence to reflect that reasons of policy and not the accused's lack of culpability account for the refusal to enter a conviction.
The Court of Appeal should first decide whether to allow or dismiss appellant's appeal of his conviction for incest. That decision would then determine the court's jurisdiction to deal with the acquittal of sexual assault.
The Court of Appeal's power, under s. 613(3), to substitute a verdict that should have been found only arises when it dismisses an appeal under s. 613(1)(b)(i). In this case the appellant's appeal on the incest charge was not dismissed. Its jurisdiction is not, however, exhausted in exercising its power under s. 613(2) to quash the conviction and to direct an acquittal; the Court is given a broad ancillary power "to make any order ... that justice requires" under s. 613(8). Section 613(8), which has been given a broad, liberal interpretation, gives the Court of Appeal a broad supplementary power to make any order that justice requires when it exercises its appellate powers under s. 613.
As a general rule a Court of Appeal cannot disturb an acquittal unless the Crown appeals from it but an exception to this general proposition exists in the context of Kienapple. This exception accommodates the special relationship between offences which arise out of the same delict and which are subject to special treatment under the Kienapple principle. Here, the general rule should give way to the exception: the appellant's acquittal on the sexual assault charge could properly be considered by the Court of Appeal in the absence of an appeal by the Crown.
The Court of Appeal, when it allowed the appeal on the incest charge under s. 613(2), could then have exercised its supplementary powers under s. 613(8) to dispose of the sexual assault charge. However, it would have been more appropriate to remit the matter to the trial judge to register a conviction on the sexual assault charge and sentence the appellant for that offence rather than itself entering a conviction on the sexual assault charge on the basis of the clear finding of the trial judge. This course preserves the appellant's right to launch an appeal from the sexual assault conviction.
Cases Cited
Considered: Terlecki v. The Queen, 1985 16 (SCC), [1985] 2 S.C.R. 483, aff'g (1983), 1983 ABCA 87, 4 C.C.C. (3d) 522; Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729; R. v. Loyer and Blouin, 1978 194 (SCC), [1978] 2 S.C.R. 631; Hammerling v. The Queen, 1982 223 (SCC), [1982] 2 S.C.R. 905; distinguished: R. v. Pringle, 1989 65 (SCC), [1989] 1 S.C.R. 1645; referred to: R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128; R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903; Elliott v. The Queen, 1977 209 (SCC), [1978] 2 S.C.R. 393; R. v. Seymour (1954), 38 Cr. App. R. 68; R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618; Rickard v. The Queen, 1970 20 (SCC), [1970] S.C.R. 1022; Guillemette v. The Queen, 1986 59 (SCC), [1986] 1 S.C.R. 356; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480; Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 150(1), (2), (3), (4), 246.1(1), (2), 613(1)(a)(i), (ii), (iii), (b)(i), (2)(a), (b), (3), (8), 623(1).
APPEAL from a judgment of the Manitoba Court of Appeal (1987), 1987 6918 (MB CA), 47 Man. R. (2d) 210, allowing an appeal from conviction by Jewers J. and entering a conviction on a lesser and proven charge arising out of the same incident for which no conviction had been entered. Appeal dismissed.
Martin D. Glazer, for the appellant.
Stuart J. Whitley, for the respondent.
Wilson J.
The judgment of the Court was delivered by
WILSON J. -- The issue on this appeal is the jurisdiction of a Court of Appeal, when allowing an accused's appeal from a conviction on a charge of incest, to deal with an acquittal of the accused on a charge of sexual assault when that acquittal resulted from the application of the rule against multiple convictions and the Crown did not appeal that acquittal.
1. The Facts
On June 18, 1983 the appellant and his wife separated after a 3-year marriage which produced two children, a son Michael aged 5 and a daughter Tracey aged 4. The appellant also had a step-son John aged 11. By agreement with his wife, Corrine Provo, the appellant was allowed access to his children and his step-son on the weekends while she retained permanent custody.
During these weekend visits the children stayed at the appellant's residence in Winnipeg, Manitoba. When the visits started in June, 1983 the sleeping arrangements were that the appellant slept alone in a single bed in his bedroom and the two younger children, Michael and Tracey, slept in a double bed in the same room. The older child, John, slept on a couch in the living room. Some time before December, 1984 this arrangement was changed and the appellant and his daughter Tracey slept in the double bed while Michael slept in the single. The explanation given for this change was that Michael and Tracey could not sleep peacefully in the same bed.
On December 26, 1984 Corrine Provo confronted the appellant with an allegation that he was sexually molesting his daughter Tracey after Tracey had complained to her. The appellant replied that he had an erection while sleeping in the same bed as Tracey and that Tracey had wakened him up complaining. The appellant denied any intentional wrongdoing and offered to see a counsellor with his wife if necessary.
On January 4, 1985 Tracey was examined at the Children's Hospital by a pediatrician who found that the child's vaginal opening was twice the normal size and that there was a healed laceration in the child's hymen. The police were contacted and the appellant was arrested at his home the next day.
The appellant was charged with committing incest by having sexual intercourse with his daughter contrary to s. 150 of the Criminal Code, R.S.C. 1970, c. C-34, as amended, and with sexually assaulting her contrary to s. 246.1 of the Criminal Code. These charges proceeded by way of indictment and the appellant was tried on September 12 and 13, 1985 in the Court of Queen's Bench of Manitoba. The appellant was convicted of incest and acquitted of sexual assault because of the application of the rule against multiple convictions.
2. The Applicable Legislation
Section 150 of the Criminal Code:
- (1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.
(2) Every one who commits incest is guilty of an indictable offence and is liable to imprisonment for fourteen years.
(3) No accused shall be determined by a court to be guilty of an offence under this section if the accused was under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred.
(4) In this section, "brother" and "sister", respectively, include half-brother and half-sister.
Section 246. 1 of the Criminal Code:
246.1 (1) Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for ten years; or
(b) an offence punishable on summary conviction.
(2) Where an accused is charged with an offence under subsection (1) or section 246.2 or 246.3 in respect of a person under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused is less than three years older than the complainant.
Section 613 of the Criminal Code:
- (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,
(2) Where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and
(a) direct a judgment or verdict of acquittal to be entered, or
(b) order a new trial.
(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and affirm the sentence passed by the trial court or impose a sentence that is warranted in law.
(8) Where a court of appeal exercises any of the powers conferred by subsection (2), (4), (6) or (7), it may make any order, in addition, that justice requires.
Section 623(1) of the Criminal Code:
- (1) The Supreme Court of Canada may, on an appeal under this Part, make any order that the court of appeal might have made and may make any rule or order that is necessary to give effect to its judgment.
3. The Courts Below
Manitoba Court of Queen's Bench
At trial the pediatrician who examined Tracey testified that the laceration of her hymen could have been caused by accident or as a result of sexual abuse. If the latter were the case Dr. Benoit testified that the injury could have been caused by penetration by a penis, a finger or an object. Tracey, aged 5 at the time of trial, testified as an unsworn witness on direct examination to the effect that there was penetration by the appellant's penis. On cross-examination she said that her testimony was not true, but later agreed on re-examination that she had told the truth on her direct examination. Michael, aged 6, testified as an unsworn witness that he observed the appellant penetrate Tracey with his penis but his testimony, like his sister's and understandably given their age, was capable of supporting inferences to the contrary. The appellant testified that he had not sexually assaulted his daughter. The trial judge stated that he was satisfied on the evidence that there was penile penetration by the appellant. He concluded:
For all of these reasons then, I have concluded that I must accept the evidence of the two children. It follows then that there was certainly a sexual assault upon Tracey Lynn committed by the accused. It was submitted that there was no incest because there wasn't a sufficient degree of penetration shown, but in my view there was, having regard to the medical evidence, therefore, my conclusion is that the accused should be convicted on both counts in the indictment.
After the trial judge had made this statement counsel for the appellant submitted that the appellant could only be convicted on one as opposed to both of the incest and sexual assault counts because they both arose from the same incident, i.e, the incident which had led to Corrine Provo's allegations on December 26, 1984 and the subsequent laying of charges against the appellant. The trial judge agreed, convicted the appellant of the more serious charge of incest and acquitted him of the charge of sexual assault.
On January 14, 1986 the appellant moved to have the trial re-opened. The trial judge decided to hear medical evidence in support of the appellant's motion at a later date. This evidence was heard on November 4, 1986 when the trial judge dismissed the motion to re-open the trial and sentenced the appellant to 2 years imprisonment.
Manitoba Court of Appeal
The appellant appealed his conviction on the incest charge to the Manitoba Court of Appeal (O'Sullivan, Philp and Twaddle JJ.A.) on the basis that the Crown had not proved beyond a reasonable doubt that the appellant had penetrated his daughter with his penis. The Crown did not appeal the acquittal of the appellant on the sexual assault charge.
The Court of Appeal [(1987), 1987 6918 (MB CA), 47 Man. R. (2d) 210] agreed that there was insufficient proof of sexual intercourse to support the conviction for incest but found that the case of sexual assault was made out. The Court of Appeal was, however, divided as to their powers once the appeal on the incest conviction was allowed. Twaddle J.A. held for the majority that a conviction for the lesser offence of sexual assault could be entered. He stated at p. 213:
The entry of an acquittal on the less serious of two charges arising out of the same delict is, in my view, conditional upon the conviction on the other charge not being quashed on appeal. If a court of appeal is of the opinion that the accused was not properly convicted on the more serious charge, but was properly convicted (i.e. found guilty) on the less serious charge, the court exercising its powers under s. 613(1)(b)(i) and s. 613(3) of the Criminal Code may dismiss the appeal, but substitute a conviction on the less serious charge.
Twaddle J.A. then ordered that the matter be remitted back to the trial judge to impose a new sentence for sexual assault. O'Sullivan J.A. held in dissent that the Court of Appeal had no power to enter a conviction on the sexual assault charge, that the appellant was entitled to plead autrefois acquit to that charge, and that the entry of a conviction would be an impermissible collateral attack on the verdict of the trial judge as a superior court. He stated at pp. 215-16:
It is true that the transcript indicates that the verdict of acquittal was entered in error. But I do not think we can set aside an acquittal in a superior court simply on the ground it was erroneous unless there is an appeal to us from the acquittal. I think the integrity of the court process requires us to follow what was said by McIntyre J. in the Supreme Court of Canada in R. v. Wilson (1983), 1983 35 (SCC), 51 N.R. 321 at 325:
"In the Manitoba Court of Appeal, Monnin J.A. said:
`The record of a superior court is to be treated as absolute verity so long as it stands unreversed.'
"I agree with that statement. It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well-settled in the authorities that such an order may not be attacked collaterally -- and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. Where appeals have been exhausted and other means of direct attack upon a judgment or order, such as proceedings by prerogative writs or proceedings for judicial review, have been unavailing, the only recourse open to one who seeks to set aside a court order is an action for review in the High Court where grounds for such a proceeding exist. Without attempting a complete list, such grounds would include fraud or the discovery of new evidence."
O'Sullivan J.A. distinguished the case at bar from this Court's decision in Terlecki v. The Queen, 1985 16 (SCC), [1985] 2 S.C.R. 483 [hereinafter Terlecki] by stating that in Terlecki the Court of Appeal only had the power to enter the conviction on the less serious offence (a conviction which was barred at trial by the rule against multiple convictions) because the trial judge had not registered a conviction on the less serious offence and this Court had construed that to be the equivalent of a stay. O'Sullivan J.A. concluded:
But in the case before us I do not see how it is possible for us to construe a verdict of acquittal as being the equivalent of a stay.
4. The Issues
The main issue presented on this appeal is whether the Court of Appeal erred in law in holding that it had jurisdiction to set aside the conviction of incest and substitute a conviction for sexual assault in the absence of an appeal taken by the Crown against the acquittal for sexual assault, such acquittal having been entered by reason of the application of the rule against multiple convictions. This issue raises, however, a larger issue, namely what approach should a trial judge take in applying the Kienapple principle against multiple convictions.
(a) The Kienapple Principle
There appears to be some confusion in the courts as to the proper approach a trial judge should take in applying the rule against multiple convictions as set out by this Court in Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729 [hereinafter Kienapple]. In this case the trial judge was faced with the option of registering two possible convictions which could arise from the same delict. Following the requirements of the rule, the trial judge properly entered a conviction for the more serious offence of incest. Then, despite his conclusion that the Crown had established that the appellant had committed all the elements of the offence of sexual assault, he entered an acquittal on the charge of sexual assault.
The trial judge's approach to this matter finds support in the decision of this Court in R. v. Loyer and Blouin, 1978 194 (SCC), [1978] 2 S.C.R. 631 [hereinafter Loyer and Blouin]. In that case the Court, for the first time after its decision in Kienapple, dealt with the proper procedure to be followed in dealing with offences of greater and lesser severity which could arise from the commission of the same delict. Laskin C.J. set out the procedure to be followed by trial judges in such circumstances at p. 635:
Where a trial before a judge alone or before a judge and jury proceeds on two or more counts of offences of different degrees of gravity, and the same delict or matter underlies the offences in two of the counts, so as to invite application of the rule against multiple convictions, the trial judge should direct himself or direct the jury that if he or they find the accused guilty on the more serious charge, there should be an acquittal on the less serious one; but if he or they should acquit on the more serious charge, the question of culpability on the less serious charge should be pursued and a verdict rendered on the merits.
Again, if at the trial, there is a plea of guilty to the more serious charge, and a conviction is registered, an acquittal should be entered or directed on the less serious, alternative charge. However, if, as was the case here, the accused pleads guilty to the less serious charge, the plea should be held in abeyance pending the trial on the more serious offence. If there is a finding of guilty on that charge, and a conviction is entered accordingly, the plea already offered on the less serious charge should be struck out and an acquittal directed.
Both the trial judge and the majority of the Court of Appeal applied Loyer and Blouin in this case.
However, since the decision in Loyer and Blouin, doubt has been expressed by this Court as to the wisdom of using the acquittal procedure for this purpose. In Hammerling v. The Queen, 1982 223 (SCC), [1982] 2 S.C.R. 905 [hereinafter Hammerling], the Court held that the Manitoba Court of Appeal had properly allowed the accused's appeal from convictions on seven counts of theft by reason of the application of the rule against multiple convictions and that the Crown was entitled in the same case to appeal acquittals from nine counts of criminal breach of trust and that convictions could be entered on those charges. In a concurring opinion, Lamer J. anticipated the difficulties which could arise from the use of the procedure set out in Loyer and Blouin and the consequent requirement for formal appeals from acquittals entered solely by reason of the rule against multiple convictions. He stated at pp. 910-11:
But, as regards the future, this Court's decision in Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729, should be reconsidered and modified to the following extent: whenever a court is of the view that the principles laid down in Kienapple should be applied, the court should enter a stay of the proceedings, in the stead of entering the acquittal.
This way of proceeding has two advantages. First, it avoids situations such as that which we are facing in the present case where a Court of Appeal is being ordered to reconsider an acquittal though no appeal was taken from that decision, and understandably so. But, secondly, the more fundamental reason is that, whilst a person should not be convicted more than once for essentially the same conduct, such a principle does not of necessity have as a corollary, when multiple charges are laid and a conviction entered on one of them, his right to an acquittal on all others. A stay fully accommodates the policy consideration underlining this Court's decision in Kienapple whilst avoiding entering an acquittal notwithstanding proof beyond a reasonable doubt of conduct that constitutes guilt of a crime.
In the subsequent case of Terlecki, supra, the Court unanimously upheld the Alberta Court of Appeal (1983), 1983 ABCA 87, 4 C.C.C. (3d) 522, to the effect that, when a court of appeal allows an appeal on one offence, it can then make an order in relation to other charges that had been conditionally stayed by reason of Kienapple notwithstanding that there had been no Crown appeal with respect to the stayed charges. In Terlecki the trial judge had found the accused guilty of both impaired driving and driving with a blood alcohol level over 80mg/100ml but had entered a conviction only on the "over 80" offence because of Kienapple. The trial judge declined to enter a conviction on the impaired driving charge. The accused's appeal on the "over 80" charge was allowed because of a problem with the breathalyzer certificate. The accused submitted that, once this was done, the trial judge's refusal to enter a conviction on the impaired driving charge could not be disturbed absent an appeal by the Crown. The Court of Appeal agreed that as a general rule a disposition could not be disturbed when no appeal was taken but stated at p. 529:
But the situation created by the rule in Kienapple, supra, affords a fit occasion for an exception to the general rule and s. 613(8) authorizes this sensible approach.
The Court of Appeal noted Lamer J.'s comment in Hammerling that it was perfectly understandable for the Crown not to appeal the refusal to convict on the impaired driving charge when it had no reason to appeal unless the conviction on the other offence arising from the same delict was overturned. In Terlecki the Court of Appeal decided it would be appropriate to return the matter to the summary convictions appeal court to decide whether to enter a conviction on the impaired driving count even though there had been no formal appeal on that matter. This Court dismissed the accused's appeal, the Chief Justice stating at pp. 483-84:
We find no error in the Court of Appeal in construing the trial judge's not registering a conviction on the count of impaired driving under s. 234 of the Criminal Code as equivalent to entering a stay on the charge. We differ from the Court of Appeal only in that we would return the matter back to Stevenson Prov. Ct. J. rather than Moshansky J., the Appeal Court Judge, to consider whether to register a conviction on the s. 234 charge and if so, to impose sentence.
In my view, this Court implicitly approved in Terlecki the use of conditional stays of charges in which convictions are barred by the rule against multiple convictions as outlined by Lamer J. in Hammerling as a preferable route to the use of acquittals suggested in Loyer and Blouin. I emphasize that the stay is conditional on the final disposition of the charge on which the accused has been convicted. As the Court of Appeal explained in Terlecki at p. 529:
We say a conditional stay for the condition should be that the stay is only for the period until the charge on which the accused has been found guilty is finally disposed of on appeal or by the expiration of time for appeal.
If the accused's appeal from the conviction arising from the same delict is eventually dismissed or the accused does not appeal within the specified times, then the conditional stay becomes a permanent stay and in accordance with this Court's judgment in R. v. Jewitt, 1985 47 (SCC), [1985] 2 S.C.R. 128, that stay becomes tantamount to a judgment or verdict of acquittal for the purpose of an appeal or a plea of autrefois acquit. If, on the other hand as is the case here, the accused's appeal from the conviction is successful, the conditional stay dissolves and the appellate courts, while allowing the appeal, can make an order remitting to the trial judge the count or counts which were conditionally stayed by reason of the application of the rule against multiple convictions notwithstanding that no appeal was taken from the conditionally stayed counts. This case makes clear the practical advantages of the use of conditional stays. It is, as Lamer J. pointed out in Hammerling and the Alberta Court of Appeal echoed in Terlecki, quite understandable that the Crown would not launch a cross-appeal from an acquittal arising from what, in its view, may very well be a perfectly correct application of the Kienapple principle. It is only if and when the conviction for the other offence arising from the same delict is upset that such an appeal becomes appropriate and necessary. The conditional stay procedure gives the appellate court the flexibility to remit the other offence to the trial judge should the need arise and avoids the necessity of filing appeals on some kind of contingency basis.
In addition to these practical advantages the use of a conditional stay of proceedings as opposed to an acquittal more accurately reflects the policy reasons which preclude the registering of a conviction. The accused who would be guilty of an offence except for the application of the rule against multiple convictions is not, in my view, deserving of an acquittal in the true sense that the state had not met its burden of proving the elements of the offence. If, as is the case here, the trial court pursues the preferable and safe course of making findings on all the counts charged, it will be clear that all the elements of the offence have been proved against the accused even if the registering of a conviction is barred for the policy reasons underlying the Kienapple principle. The policy considerations here are analogous to those which apply when proceedings against an accused are stayed because of entrapment. They are concerned with the integrity and fairness of the administration of justice rather than with the culpability of the accused. In R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, at p. 972, this Court noted that entry of a stay of proceedings would only be appropriate after the trier of fact determined that the accused was not entitled to an outright acquittal. Similarly, once an accused's appeal from the conviction arising from the same delict has been dismissed or the accused's time to appeal that conviction has run out, it would be preferable that a permanent stay be recorded on the "Kienappled" offence to reflect that reasons of policy and not the accused's lack of culpability account for the refusal to enter a conviction. The trial judge should determine whether the accused is entitled to an acquittal before the independent policies of either the rule against entrapment or the rule against multiple convictions is applied.
(b) The Jurisdiction of the Court of Appeal
My conclusion that the preferable procedure for both practical and policy reasons is for the trial judge to enter a conditional stay rather than an acquittal under Kienapple does not settle the question of the Court of Appeal's jurisdiction in this case.
The Court of Appeal, in entering the conviction on the sexual assault charge after it had allowed the appeal from the incest charge, purported to exercise its power under s. 613(3) to substitute the verdict that should have been found and remit the matter to the trial court for sentencing. The problem with its approach is that the Court of Appeal's power to substitute the verdict that should have been found only arises when it dismisses an appeal under s. 613(1)(b)(i). In this case the appellant's appeal on the incest charge was not dismissed; it was allowed because of a doubt as to whether all the elements of that offence had been made out. The Court of Appeal supported the exercise of its power under s. 613(3) with the following conclusion at p. 214:
In the result, I would dismiss the appeal against conviction, but substitute a verdict of guilty of sexual assault.
This, in my respectful view, puts the cart before the horse in the sense that the substituted verdict of a conviction for sexual assault has determined the Court's decision as to whether the appeal of the conviction for incest should be dismissed or allowed. The proper course was clearly for the Court of Appeal to decide first whether the appellant's appeal of his conviction for incest should be allowed or dismissed. That decision would then determine the court's jurisdiction to deal with the acquittal of sexual assault.
My conclusion that the entry of a conviction on the sexual assault charge cannot be supported as an exercise of the Court of Appeal's jurisdiction under s. 613(3) of the Criminal Code does not exhaust the jurisdiction of the Court of Appeal in this case. The Court of Appeal exercised its jurisdiction under s. 613(1) of the Code to allow the appeal from the incest conviction on the ground that it could not be supported by the evidence, quashed the conviction and directed the entry of a verdict of acquittal under s. 613(2). In exercising its power under s. 613(2) the Court of Appeal is given a broad ancillary jurisdiction under s. 613(8) of the Code to make "any order, in addition, that justice requires". This Court has construed the powers granted to the Court of Appeal under s. 613(8) in a generous manner consistent with its broad remedial purposes. For example in Elliott v. The Queen, 1977 209 (SCC), [1978] 2 S.C.R. 393, the Court held that the section authorized the Court of Appeal, when ordering a new trial under s. 613(4)(b) of the Code, to amend a count of the indictment. The Court rejected the accused's argument that, because the order for a new trial could not have been made unless the indictment was amended, the amendment was not "in addition" to the Court of Appeal's exercise of its power to order a new trial. Justice Ritchie stated at pp. 431-32:
It was contended on behalf of the appellant that the order for a new trial could not have been made unless the amendment had been granted and that the amendment was therefore not an order "in addition" to the exercise of the court's power under subs. (4)(b)(i), but rather that it was a prerequisite to the granting of a new trial.
In my view when Parliament authorized the Court of Appeal, in the exercise of its power, to order a new trial, to "make any order, in addition, which justice requires" it must be taken as having authorized that Court under those circumstances to make any additional order which the ends of justice require whether the order for a new trial is dependent upon the additional order or not. I do not think that the wide powers conferred on the Court of appeal by s. 613(8) are to be narrowly construed but rather that they are designed to ensure that the requirements of the ends of justice are met, and are to be liberally construed in light of that overriding consideration.
I note that in his dissent in the Court of Appeal O'Sullivan J.A. adopted the following statement of Goddard L.C.J. in R. v. Seymour (1954), 38 Cr. App. R. 68, at p. 69, as a guide for interpreting the Court of Appeal's appellate jurisdiction under s. 613 of the Criminal Code:
That he was a guilty man...there is no doubt, but a prisoner is always entitled to the benefit of a technical point if he can find one.
If by the invocation of this authority O'Sullivan J.A. meant to suggest that the Criminal Code should be given a technical construction in order to benefit the accused, then I must respectfully disagree. This Court in R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618 [hereinafter Paré] has rejected overly technical or narrow constructions of criminal law statutes in order to benefit the accused. In Paré the Court refused to read the words "while committing" in the then s. 214(5) of the Code (now s. 231(5)) so as to require that the murder and the underlying offence occur simultaneously even though such a narrow construction was grammatically possible and would benefit the accused. If there is an ambiguity in the statute, only reasonable alternatives should be adopted regardless of whether a narrow but unreasonable construction would work to the accused's benefit. There is, in my respectful view, no reasonable alternative to a broad reading of the Court of Appeal's ancillary jurisdiction under s. 613(8) given its broad wording and remedial purpose. The section gives the Court of Appeal a broad supplementary power to make any order that justice requires when it exercises its appellate powers under the enumerated subsections of s. 613.
A liberal construction of the Court of Appeal's powers under s. 613(8) is also required in order to give effect to the conditional stay procedure adopted by the Court in Terlecki. For example, when an appeal is allowed under s. 613(2) the Court of Appeal will use its powers under s. 613(8) to remit to the trial judge the offence which was conditionally stayed by virtue of Kienapple and which in most cases will not be the subject of a separate appeal.
It is, of course, true that as a general rule a Court of Appeal cannot disturb a verdict of acquittal unless there has been an appeal by the Crown from that acquittal: see Rickard v. The Queen, 1970 20 (SCC), [1970] S.C.R. 1022; Guillemette v. The Queen, 1986 59 (SCC), [1986] 1 S.C.R. 356. Nevertheless, it has been expressly recognized by the Alberta Court of Appeal, and certainly implicitly by this Court in Terlecki, that in the particular context of Kienapple there should be an exception to the general proposition in order to accommodate the special relationship between offences which arise out of the same delict and are subject to special treatment under the rule against multiple convictions. I note that this Court made it clear in R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, that, for the Kienapple principle to apply, there must be a proximate factual and legal nexus between the different offences. It would be my view that this is a case in which the general rule requiring an appeal should give way to the exception and that the appellant's acquittal on the sexual assault charge could properly be considered by the Court of Appeal in the absence of an appeal by the Crown.
For the same reasons concerning the special relationship between the offences, I would reject the argument that dealing with the acquittal on the sexual assault charge under s. 613(8) constituted an impermissible collateral attack on that verdict as prohibited by this Court's decision in Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594. In this case the verdict of acquittal of sexual assault was prompted solely by the application of Kienapple to the incest conviction. Once the incest conviction was challenged, the sexual assault acquittal was also in doubt. In the particular context of the rule against multiple convictions the attack on the sexual assault verdict cannot be said to be "collateral" to the disposition of the incest charge. The two counts arose from the same delict and were inextricably tied together by the Kienapple principle.
Having allowed the appeal on the incest charge under s. 613(2), the Court of Appeal could in this case exercise its supplementary powers under s. 613(8) to deal with the sexual assault charge. In this case the Court of Appeal decided to enter a conviction on the sexual assault charge given the clear finding of the trial judge that all the elements of the sexual assault offence had been established and the fact that the appeal of the incest conviction was allowed because of a doubt as to the element of penetration which was not an element of the sexual assault charge. In my view, it would have been more appropriate for the Court of Appeal to have remitted the matter back to the trial judge to register a conviction on the sexual assault charge and sentence the appellant for that offence. This is a preferable route to the Court of Appeal or this Court itself entering the conviction in that it preserves the appellant's right to launch an appeal from the sexual assault conviction if he so desires. Under section 623(1) of the Criminal Code this Court may make any order that the Court of Appeal might have made under its broad powers under s. 613(8). Accordingly, I would remit the matter back to the trial judge for the entry of a conviction on the sexual assault charge and the imposition of sentence on that conviction. The appellant, in my view, suffers no unfairness in this procedure since the trial judge came to the clear conclusion that he was guilty of sexual assault and refused to enter a conviction for that offence only because of the rule against multiple convictions. I am also mindful that a new trial should be avoided if possible given the tender years of the victim and the trauma involved in testifying all over again.
I should note by way of addendum that in this case, unlike the case of R. v. Pringle, 1989 65 (SCC), [1989] 1 S.C.R. 1645 [hereinafter Pringle] only two charges were laid against the appellant, incest and sexual assault. This distinguishes the present case, as far as the appropriate relief is concerned, from Pringle in which there were four counts against the accused and it was necessary therefore to remit the matter back to the trial judge, not to enter convictions on the other counts, but to determine on which of the other counts to enter convictions.
5. Disposition
I would dismiss the appeal and remit the matter of the sexual assault charge back to the trial judge for entry of a conviction and imposition of the appropriate sentence.
Appeal dismissed.
Solicitor for the appellant: Martin D. Glazer, Winnipeg.
Solicitor for the respondent: The Attorney General of Manitoba, Winnipeg.
