ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 3676/10
DATE: 2012-03-09

B E T W E E N:

Her Majesty the Queen

Timothy M. Hill, for the Respondent

Respondent

• and -

Antonio Gigliotti

J. Ronald Charlebois, for the Accused

Accused

HEARD: March 6, 2012

The Honourable Justice J. R. Henderson

KIENAPPLE DECISION

INTRODUCTION

[1] In R. v. Kienapple , 1974 SCC 14 , [1975] 1 S.C.R. 729 , Laskin J. described the legal principle that precludes multiple convictions for two offences that arise from the same delict, matter or cause. That is, even though the factual circumstances of a case may form the basis of two separate offences, if the same cause or matter is contemplated by the two offences, then one of the counts should be stayed .

[2] In the present case, the jury found the accused (hereinafter called “Gigliotti”) guilty of two offences: Number one, that he committed the offence of sexual assault on S.S. (hereinafter called “S.S.”); and number two, that he did by threats and with intent induce S.S. to engage in sexual intercourse and fellatio thereby committing the offence of extortion.

[3] Counsel for Gigliotti submits that these two offences arise from the same delict, matter or cause, and therefore Gigliotti should be convicted on one count only; not on both counts. That is, defence counsel submits that the Kienapple principle should apply in this case; that a conviction should be registered on the more serious extortion count; and that the sexual assault count should be stayed.

THE KIENAPPLE PRINCIPLE

[4] In the Kienapple case, Laskin J. reviewed the long-standing principle that there should not be multiple convictions for the same delict, matter, or cause. Laskin J. wrote, at page 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 the second count, the situation invites application of the rule against multiple convictions ."

[5] It is acknowledged that Parliament has the power to create legislation such that convictions for two separate offences can stand even though both arise out of the same circumstances. However, unless there is a clear indication from Parliament that multiple convictions are envisaged, the principle against multiple convictions should apply.

[6] In R. v. Prince (1986), 1986 SCC 40 , 30 C.C.C. (3d) 35 (S.C.C.) , the Supreme Court of Canada expanded on the Kienapple decision. In Prince , Dickson C.J. stated that the rule against multiple convictions only applies where there is a relationship of sufficient proximity first between the facts, and second between the offences that form the basis of the charges. That is, if there is a proximate relationship between the facts (a factual nexus) and there is a proximate relationship between the offences (a legal nexus), then there should not be multiple convictions. See paras. 17 to 24 of the Prince decision.

THE CIRCUMSTANCES OF THIS CASE

[7] In order to analyze this application, it is necessary to briefly review the factual circumstances in the present case. There was considerable disagreement as to the facts at trial, but the jury ultimately found Gigliotti guilty of the two offences. Therefore, I have to assume that the jury accepted S.S.’s testimony beyond a reasonable doubt, and I am bound by the jury's findings of fact.

[8] Therefore, I accept that S.S. stole a vodka cooler from her workplace, and the theft was discovered by her employer, Gigliotti. Gigliotti then telephoned S.S. at her home and demanded that she be at his house within 20 minutes, otherwise the police would come to her house.

[9] When S.S. arrived at Gigliotti's house, he gave her a choice. He told her that he could call the police and have her arrested, or he would “own her”. She chose the latter option.

[10] Immediately thereafter, Gigliotti started to undress her. S.S. protested, but Gigliotti repeated his threat to call police and S.S. acquiesced. Then, Gigliotti directed S.S. into the bedroom where he proceeded to engage in sexual activity with her. The sexual activity involved several different acts, including sexual intercourse and fellatio.

[11] During the course of the sexual encounter S.S. indicated to Gigliotti that she did not consent to the sexual activity. However, on two further occasions while they were in the bedroom Gigliotti repeated his threat to call police if S.S. did not continue to engage in sexual activity with him. Thus, in light of Gigliotti's threats to call the police, S.S. reluctantly complied.

ANALYSIS

[12] I will analyze this application in two parts. First, I will consider the factual nexus between the two counts. Second, I will consider the legal nexus between the two counts.

[13] Regarding the factual nexus, I must determine if the two offences arise out of the same fact situation. The sexual assault offence was committed when Gigliotti intentionally touched S.S. in a sexual manner without her consent, knowing that she did not consent. In the circumstances of this case, the start of the sexual assault occurred when Gigliotti partially undressed S.S., directed her to the bedroom, and started to have sexual intercourse with her.

[14] The extortion offence was committed when Gigliotti induced S.S. into engaging in sexual intercourse by threatening to call police. Thus, the start of the extortion offence was when Gigliotti told S.S. that she had two options; that he could call the police or he would own her.

[15] There is no requirement that an accused obtain a benefit in order to complete an extortion offence. However, in this case the Indictment is very specific. Count number two alleges that Gigliotti did, by threats, induce S.S. into engaging in sexual intercourse and fellatio. Therefore, the extortion offence was not completed in this case until Gigliotti partially undressed S.S., directed her into the bedroom, and engaged in sexual intercourse with her.

[16] In the Prince case at para. 20, the Court held that the factual nexus is satisfied if the same act of the accused grounds each of the charges. However, that decision suggests that it will not always be easy to define when one act ends and another begins. In the same paragraph the Court stated that in order to determine whether there was a sufficient factual nexus, a judge must have regard to factors such as the proximity of the events in time and place, the presence or absence of intervening events, and whether the accused’s actions were related to each other by a common objective.

[17] There is one previous case, R. v. Davis , 1999 SCC 638 , [1999] 3 S.C.R. 759 , in which the Kienapple principle was considered with respect to charges of extortion and sexual assault. However, the facts in the present case should be distinguished from those in the Davis case. In Davis , various acts of both sexual assault and extortion were spread out over two or three months, causing the Court to find at para. 73 that the requisite factual nexus did not exist.

[18] In the present case, clearly the acts of the accused with respect to sexual assault and extortion were very close in time and place. Both offences took place in Gigliotti's house and the sexual assault took place immediately after the extortion threat was made. In fact, the extortion offence was fully completed when Gigliotti commenced to have sexual intercourse with S.S., and the sexual assault commenced at that time with that same act.

[19] Furthermore, when they were in Gigliotti’s bedroom, Gigliotti repeated his extortion threat on two further occasions during a time in which several sexual activities occurred. Thus, the acts of extortion were intertwined with the acts of sexual assault.

[20] In addition, there were no intervening events and Gigliotti's actions in committing both offences related to the same common objective; i.e. obtaining sexual intercourse from S.S..

[21] For all of these reasons, I find that there is a strong factual nexus between the two counts.

[22] Regarding the legal nexus, I must determine whether there is a sufficient relationship between the two offences themselves. In this respect both the Kienapple case and the Prince case make it clear that the rule is broader than the simple prohibition of multiple convictions for the same offence. At para. 14 of Prince the Court, referring to the Kienapple decision, wrote, “ … 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.”

[23] In the Prince case at para. 32, the Court concluded that a sufficient legal nexus between the offences will be satisfied if there is no additional and distinguishing element in one offence that is not contained in the other offence. In a discussion of this concept at para. 34, the Court held that if the elements of one offence are substantially the same as or alternative to the elements of the other offence, then there is a sufficient legal nexus between the two offences. The Court went on at paras. 35 through 38 to describe three ways in which an element of one offence may be the same as or alternative to an element of another offence.

[24] In general, the elements of sexual assault are quite different from the elements of extortion. However, it must be recognized that the extortion count here is particularized in the Indictment as extortion that induced S.S. into engaging in sexual intercourse and fellatio.

[25] If I consider the extortion count first, I note that the Crown must prove that Gigliotti threatened S.S.; that he did so with intent to induce S.S. into sexual activity; and that S.S. was induced by the threat into sexual activity. Therefore, if the Crown proves all of the elements of this particular extortion count, the Crown will also have proved all of the elements of sexual assault. That is, the sexual assault count is subsumed in the extortion count. In this way all of the elements of sexual assault are included in the extortion count.

[26] If I consider the sexual assault count first, I note that the act of extortion by Gigliotti essentially forms the lack of consent element of the sexual assault count. That is, where the particulars of the extortion include a threat that induces S.S. to engage in sexual activity, then the extortion vitiates S.S.’s consent to sexual activity. Thus, the elements of extortion are the same as or an alternative to the lack of consent element in the sexual assault count.

[27] In summary, the elements of extortion are included in the sexual assault offence, and the elements of sexual assault are included in the extortion offence. Therefore, in this way, I find that the elements of extortion are substantially the same as the elements of sexual assault in the present case. I find that there is a sufficient legal nexus between the two counts. The two counts refer to the same matter, cause, or delict.

CONCLUSION

[28] In conclusion, I find that the Kienapple principle applies in this case.

[29] A conviction will be registered on count number two, extortion of sexual intercourse and fellatio, contrary to s.346(1) of the Criminal Code of Canada . Count number one will be stayed conditionally pending sentencing on count number two.

Henderson, J.

Released: March 9, 2012

COURT FILE NO.: 3676/10
DATE: 2012-03-09

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen Respondent - and – Antonio Gigliotti Accused KIENAPPLE DECISION Henderson, J.

Released: March 9, 2012