R. v. Kienapple (1974), 1 N.R. 322 (SCC)
MLB headnote and full text
R. v. Kienapple
Indexed As: R. v. Kienapple
Supreme Court of Canada
Fauteux, C.J.C., Abbott, Martland,
Judson, Ritchie, Spence, Pigeon,
Laskin and Dickson, JJ.
February 12, 1974.
Summary:
This case arose out of a charge on two counts of sexual offences against a 13 year old girl. Count 1 charged the accused with rape contrary to s. 143 of the Criminal Code and count 2 charged the accused with unlawful carnal knowledge of a female under 14 years of age contrary to s. 146(1) of the Criminal Code. The accused was tried, convicted and sentenced on both counts. On appeal to the Ontario Court of Appeal the appeal was dismissed without written or recorded reasons.
On appeal to the Supreme Court of Canada the appeal was allowed and the conviction for unlawful carnal knowledge (count 2) was quashed. The Supreme Court of Canada stated that both count 1 and count 2 arose out of the same wrongful act by the accused and that the principle of res judicata precludes multiple convictions for the same delict, even though the matter is the basis of two separate offences – see paragraph 11.
Fauteux, C.J.C., Abbott, J., Martland, J. and Ritchie, J., dissenting, would have dismissed the appeal because counts 1 and 2 constituted separate offences for which the accused could be separately convicted and sentenced. Ritchie, J., stated that the cases dealing with double punishment are not relevant to the issue of whether the accused could be convicted in respect of two separate offences – see paragraph 46.
Criminal Law – Topic 76
Res judicata – Multiple convictions for the same subject matter precluded – The accused was charged under two counts, count 1 was for rape and count 2 was for sexual intercourse with a girl under 14 – The accused was convicted and sentenced on both counts – The Supreme Court of Canada quashed the conviction and sentence on count 2 because of the principle of res judicata which precludes multiple convictions for the same wrong or delict – See paragraph 11.
Words and Phrases
Offence
– The Supreme Court of Canada discussed the meaning of the word “offence” in the Criminal Law – See paragraph 8.
Words and Phrases
Nemo debet bis puniri pro uno delicto
– The Supreme Court of Canada discussed the meaning of the phrase “nemo debet bis puniri pro uno delicto” (no one should be punished twice for the same fault) in the Criminal Law – See paragraph 7.
Words and Phrases
Res judicata
– The Supreme Court of Canada discussed the meaning of the phrase “res judicata” in the Criminal Law – See paragraphs 10 and 11.
Cases Noticed:
Hudson v. Lee (1589), 4 Co. Rep. 43a, 76 E.R. 989, folld. [para. 7].
Cox and Paton v. The Queen, [1963] S.C.R. 500, folld. [para. 7].
R. v. Miles (1890), 24 Q.B.D. 423, folld. [para. 8].
Rex v. Thomas, [1950] 1 K.B. 26, folld. [para. 8].
Wemyss v. Hopkins (1875), L.R. 10 Q.B. 378, folld. [para. 9].
R. v. Quon, [1948] S.C.R. 508, folld. [para. 9].
Connelly v. Director of Public Prosecutions, [1964] A.C. 1254, folld. [paras. 9, 41].
R. v. Morris (1867), L.R. 1 C.C.R. 90, folld. [para. 13].
Rex v. Lockett, [1914] 2 K.B. 720, folld. [para. 15].
Kelly v. The King (1916), 54 S.C.R. 220, folld. [para. 15].
R. v. Siggins, [1960] O.R. 284, folld. [para. 15].
Connelly v. Director of Public Prosecutions, [1964] A.C. 1354, folld. [para. 16].
Rex v. Kendrick and Smith (1931), 23 Cr. App. R. 1, folld. [para. 16].
R. v. Hodgson (1973), 57 Cr. App. R. 502, folld. [para. 21].
Rex v. Marcus and Richmond, [1931] O.R. 164, folld. [para. 22].
Cox & Paton v. The Queen, [1963] S.C.R. 500, dist. [para. 35].
Belyea v. The King, [1932] S.C.R. 279, folld. [para. 36].
Paradis v. The King, [1934] S.C.R. 167, folld. [para. 36].
McDonald v. The Queen, [1960] S.C.R. 186, folld. [para. 36].
Rex v. Thomas (1949), 33 Cr. App. R. 200, folld. [para. 38].
R. v. Barron, [1914] 2 K.B. 570, folld. [para. 39].
Reg. v. King, [1897] 1 Q.B. 214, folld. [para. 39].
R. v. Quon, [1948] S.C.R. 508, dist. [para. 42].
Reg. v. Siggins, 127 C.C.C. 409, dist. [para. 42].
Wemys v. Hopkins (1875), L.R. 10 Q.B. 378, folld. [para. 43].
Statutes Noticed:
Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 11 [para. 12]; sect. 143, sect. 146(1) [para. 4].
Counsel:
J.D. Morton, Q.C., for the appellant;
D.A. McKenzie, for the respondent.
JUDSON, SPENCE, PIGEON and DICKSON concurred with LASKIN, J. FAUTEUX, C.J.C., ABBOTT and MARTLAND, J., concurred with RITCHIE, J. FAUTEUX, C.J.C., and MARTLAND, J., delivered separate reasons for judgment which are set out below.
