Krug v. The Queen

La Forest J.‑‑This case concerns the application of the principle of double jeopardy at common law and under the Canadian Charter of Rights and Freedoms when multiple charges arise out of the same transaction.

Background

The appellant was charged with the following offences:

1. ...that he, on or about the 12th day of October 1981 at the City of Sault Ste. Marie in the District of Algoma, did unlawfully attempt to steal a Ford Pick‑Up Truck, and a Buick automobile from Town and Country Towing, while armed with an offensive weapon, to wit: Browning 308 rifle, contrary to sections 303 and 421 of the Criminal Code of Canada , and

2. ... that he on or about the 12th day of October, 1981 at the City of Sault Ste. Marie in the District of Algoma, did use a firearm, to wit: a Browning 308 Rifle bearing serial number 3377731, while attempting to commit an indictable offence, contrary to section 83(1) (a) of the Criminal Code of Canada , and

... that he on or about the 12th day of October, 1981 at the City of Sault Ste. Marie in the District of Algoma, did unlawfully have in his possession a weapon, to wit: a Browning 308 rifle bearing serial number 3377731, for a purpose dangerous to the public peace, contrary to section 85 of the Criminal Code of Canada , and

... that he on or about the 12th day of October, 1981 at the City of Sault Ste. Marie in the District of Algoma, did unlawfully and without lawful excuse, point a firearm, to wit: a Browning 308 Rifle bearing serial number 3377731, at Jim McAllister, contrary to section 84(1) of the Criminal Code of Canada .

3. The applicable provisions, so far as relevant, read as follows:

83. (1) Every one who uses a firearm

(a) while committing or attempting to commit an indictable offence,

...

whether or not he causes or means to cause bodily harm to any person as a result thereof, is guilty of an indictable offence and is liable to imprisonment

...

(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1).

84. (1) Every one who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded,

(a) is guilty of an indictable offence and is liable to imprisonment for five years; or

(b) is guilty of an offence punishable on summary conviction.

...

85. Every one who carries or has in his possession a weapon or imitation thereof, for a purpose dangerous to the public peace or for the purpose of committing an offence, is guilty of an indictable offence and is liable to imprisonment for ten years.

302. Every one commits robbery who

...

(d) steals from any person while armed with an offensive weapon or imitation thereof.

4. The appellant pleaded guilty to the first count and not guilty to the remaining counts. The Crown, with the consent of the appellant, then read the facts in support of the plea of guilty and of the other counts. Those facts are as follows:

During the first two weeks of August 1981, while the appellant and his wife were visiting friends in Sault Ste. Marie, their car and truck were repossessed by a finance company and taken to the premises of Town and Country Towing. They returned to visit the same friends on October 10 or 11 and on October 12 the appellant became adamant about taking his two vehicles back. At 8:30 p.m. that evening he ordered his wife and son into a truck, and taking a Browning 308 rifle with him, said that he was going to Town and Country Towing to get his vehicles back and that he would shoot anybody who got in his way.

When they arrived at the premises of Town and Country Towing, they found the door to the office locked and one Jim McAllister inside. The appellant knocked on the door and, when McAllister responded, the appellant lifted the rifle and ordered McAllister to open the door. As McAllis­ter complied with this demand the appellant ordered him to walk back and as he did so he heard the mechanism of the rifle being loaded. Subsequently, the rifle was lifted so that it was pointed in the general direction of McAllister. In the course of the discussion which ensued between the appellant and McAllister, the police arrived at the scene. Aware of their arrival, McAllister grabbed the rifle, pushed the appellant and pinned him against the wall. On checking the rifle, the police found a shell in the chamber and three in the clip. The rifle was subsequently test‑fired and found to be capable of firing.

The charges were heard by Vannini D.C.J. who, on October 25, 1982, found the appellant guilty on the first count, attempted theft while armed with an offensive weapon, contrary to ss. 303 and 421 of the Criminal Code . The case was then adjourned to allow the parties to prepare submissions regarding the question whether the appellant could be convicted on the remaining counts.

On December 9, 1982, the trial judge [(1982), 7 C.C.C. (3d) 324] further found the appellant guilty of the second count, using a firearm while attempting to commit an indictable offence contrary to s. 83(1)(a) of the Code, as well as of the fourth count, pointing a firearm at another person contrary to s. 84(1). These two counts, he found, were distinct and separate from the first count and from one another so that the principle against double jeopardy, enunciated in Kienapple v. The Queen, [1975] 1 S.C.R. 729, was inapplicable.

In his view, however, the principle applied in respect of the third count, possession of a weapon contrary to s. 85 of the Code. The factual elements constituting this offence were substantially the same as those involved in the first count, attempting to steal while armed with an offensive weapon.

The trial judge then discussed the possible application of the Charter . Since, in his view, the offences of which the appellant was charged were separate and distinct offences, the multiple convictions of the appellant did not constitute a deprivation of his right to liberty or security in violation of the principles of fundamental justice under s. 7 of the Charter or of his right not to be retried for a crime for which he had already been acquitted or found guilty and punished under s. 11(h) of the Charter . Nor, he added, did the multiple convictions and consequent punishment constitute cruel and unusual punishment under s. 12 of the Charter .

An appeal to the Court of Appeal of Ontario was dismissed [(1983), 7 C.C.C. (3d) 337 (note)]. On June 6, 1983 the appellant was given leave to appeal to this Court.

Argument on Appeal

On this appeal the argument on behalf of the appellant may thus be summarized. At common law the principle nemo debet bis puniri pro uno delicto prohibited punishing an offender twice for the same offence. The pleas of autrefois acquit and convict could be raised to prevent that occurrence. The principle came to be understood as also comprising nemo bis vexari which prohibited multiple convictions arising out of the same wrongful act. The bis vexari principle was expanded by Laskin J. (later C.J.C.) in the Kienapple case, supra, at p. 751, in the following terms:

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....

This is really an application of res judicata to criminal law and it is not concerned with whether the two offences are the same but whether the accused is being punished for substantially the same factual occurrence. Where an act underlies an offence, the same act cannot be used again to constitute the factual basis of a conviction for another offence. Laskin J., in Kienapple, thus put it, at p. 750:

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. Moreover, it cannot be the case that if an accused is tried on several counts charging different offences, he is liable to be convicted and sentenced on each count, and yet if he was tried and convicted on one only he would be entitled to set up the defence of res judicata as a defence to other charges arising out of the same cause or matter.

Counsel for the appellant contends that the conviction of the accused of attempted robbery while armed with a firearm, coupled with his conviction for using a firearm while attempting to commit an indictable offence, was contrary to the principle set forth in Kienapple. So too was his conviction for the offence of pointing a firearm contrary to s. 84(1). Counsel conceded, however, that Parliament could abrogate the Kienapple principle by apt legislation and, indeed, that this court in McGuigan v. The Queen, [1982] 1 S.C.R. 284, had held that an accused could be convicted of robbery under s. 302(d) and of using a firearm while committing an offence under s. 83(1)(a) even though this was contrary to the Kienapple principle. Dickson J. (now C.J.C.), speaking for the majority of the Court in that case, said at p. 318:

In my view Parliament has in the enactment of s. 83 departed from the fundamental common law principle of the criminal law that nemo debet bis puniri pro uno delicto, elaborated in Kienapple, and has shown that the use of a firearm in the commission of the offence of robbery shall also constitute a separate and distinct offence under s. 83 for which a separate and additional (increased in the case of second or subsequent offence) punishment shall be imposed.

Counsel, however, sought to get around this difficulty by relying on ss. 7 and 11(h) of the Charter which read as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

11. Any person charged with an offence has the right

...

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

These provisions, which, he underlined, were enacted after the McGuigan case, were intended to elevate the principle against multiple convictions or double punishment to the status of an entrenched constitutional right. In short, he argued, Parliament can no longer abrogate the rule in Kienapple.

Sections 83 and 302(d)

Before looking into the Charter issues, it is, I think, useful to examine the threshold question of the application of the Kienapple principle in relation to ss. 83 and 302(d). Section 302(d) makes it an offence to steal from any person while armed with an offensive weapon. Section 83 by contrast provides that every one who uses a firearm while committing or attempting to commit an indictable offence is guilty of an offence. Not only is the particular offensive weapon particularized by s. 83; it requires that the firearm be used. It must be remembered that the principle in the Kienapple case is ultimately grounded in the doctrine of res judicata. That doctrine 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).

It is not like the offence under the third count of being in possession of a weapon under s. 85 of the Code, which the trial judge rightly held to fall within the Kienapple principle, for if one is armed with a firearm, one must necessarily be in possession of an offensive weapon, since the latter expression includes a firearm. By contrast, as Dickson J. noted in the McGuigan case, at p. 318, the use of a firearm is not an essential ingredient in the crime of robbery under s. 302(d), and it was not necessary to prove that he used the firearm to establish that he was armed with it. As he further observed, however, the purpose and effect of s. 83 was to impose an additional penalty for what is, in a case like the present, in effect, an aggravated form of robbery. To convict an accused under that section it must be established that the accused did something more than is required for the offence of robbery, namely that he used a firearm.

My own view is that the words used in the two provisions are clear enough to arrive at this result without relying on a specific intention of Parliament or on antecedent law. However, in the context in which McGuigan was decided, these concerns were uppermost in the minds of the judges who decided it. As a result, Dickson J. stressed that Parliament, by restructuring s. 83, clearly contemplated multiple prosecutions and convictions where the use of firearms was involved and that this displacement of the Kienapple principle must be respected by the courts. This served to distinguish the previous decision of this court in R. v. Quon, [1948] S.C.R. 508, which had interpreted the predecessor provision to s. 83 as restricted to offences of which possession of a firearm was not an essential element. But this predecessor provision applied to the possession of a firearm. The specific intention of Parliament in enacting s. 83 to cover new ground became evident when it chose to employ the word "use" rather than "has upon his person", i.e., possession, as was done in the predecessor provision. Parliament's intention was to preclude the application of the Kienapple principle and has, of course, to be respected.

But it is important for our purpose to underline the manner in which Parliament achieved this purpose. This was done by creating a new and distinct offence that precluded the application of the Kienapple principle. To convict an accused under the new offence, an additional ingredient had to be established beyond what was required to prove robbery as defined by s. 302(d). Not only must he be armed (and so in possession) of a firearm; he had to use it to be convicted under the new s. 83.

This approach is inherent in various parts of Dickson J.'s judgment but his reliance on Martin J.A.'s judgment in the Ontario Court of Appeal in R. v. Langevin (1979), 47 C.C.C. (3d) 138, underlines his position. In his concluding remarks Dickson J. had this to say [at p. 319]:

For the foregoing reasons, and for the reasons given by Mr. Justice Martin in the Langevin case, I conclude that the conviction on the charge of attempted armed robbery did not preclude a conviction on the charge under s. 83 of the Code. I would dismiss the appeal.

(Emphasis is mine.)

When one turns to the remarks of Martin J.A. in R. v. Langevin, supra, which deals with the same two provisions, one finds the following statement at p. 145:

Being "armed" with an offensive weapon and "using" an offensive weapon are not synonymous. A person is "armed" with an offensive weapon if he is equipped with it: see R. v. Sloan (1974), 19 C.C.C. (2d) 190 at p. 192. "Using" a firearm includes pulling out a firearm which the offender has upon his person and holding it in his hand to intimidate another: see Rowe v. The King (1951), 100 C.C.C. 97 at p. 101, [1951] 4 D.L.R. 238, [1951] S.C.R. 713 at p. 717. 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.

The introduction of the requirement of the use of the firearm while committing or attempting to commit an indictable offence also removes some of the absurdities referred to in R. v. Quon, supra, and to which a literal interpretation of s. 122 led, when applied to offences involving possession of a firearm.

In coming to this conclusion, Martin J.A. placed considerable stress, as had Dickson J., on Parliament's specific intention in enacting s. 83(1)(a). That is scarcely surprising. Section 83(1)(a) formed part of extensive revisions of the Criminal Code popularly known as the "gun control" legislation which clearly revealed, in Dickson J.'s words, at p. 317, that parliament was "gravely concerned with the proliferation of firearm‑related crime" and that it intended to impose severe restrictions on the use of firearms. In interpreting words like "armed" and "using", the penumbrae of which have considerable overlap, the courts must, in attempting to unravel Parliament's intention, necessarily closely examine the context in which the legislation was enacted. The specific selection of the word "use" rather than "possession" in that context served to underline what Parliament had in mind.

That this was the essential problem in McGuigan is also evident from the language of Laskin C.J. who dissented. He did not read into the gun control legislation a Parliamentary intention to override the Kienapple principle and his decision was grounded in his view that there really was no substantial difference between "using" a firearm in s. 83 and being in "possession" of a firearm, the expression employed in its predecessor section (s. 122) and dealt with in the Quon case. Thus at p. 299 of his judgment he says:

The pistol or revolver brandished by the robber in the Quon case to intimidate the victim, was clearly in his possession within the then s. 122; and it could be said that it was "used", if that expression had then been in s. 122. "Use" was, of course, the basis of the s. 83(1)(a) conviction in Langevin and also in the present case. Of course, if in the Langevin case or in the present case the accused had committed a robbery while in possession of an offensive weapon, but without using the weapon (and I postulate a distinction between possession and use), then he could not in any event have been charged under s. 83(1)(a).

He further reasoned that there was no substantial difference between being "armed" with a firearm and "using" it. Thus he says at p. 301:

To hold a person guilty under s. 83(1)(a) where he has pleaded or been found guilty of robbery, that is theft while armed with a firearm, carries no clear distinction for me from a conviction of robbery while armed with a firearm which the accused brandished resulting in an acquittal in Quon of being in possession of a firearm while committing robbery.

In sum, as in McGuigan, there were in the present case factual elements of use in addition to mere possession, specifically the loading and the pointing of the firearm. The Kienapple principle has, therefore, no application here in relation to the offences under ss. 83 and 302(d).

The Charter

I come now to the Charter , and first to s. 7. I have gone at length into the McGuigan case to underline that the essential question there was whether the word "use" imported an ingredient into s. 83(1)(a) not present in the offence of robbery while "armed" as defined in s. 302(d). So put, it seems to me that we are not concerned solely with a situation where Parliament redefines an existing provision or displaces the Kienapple principle. For Parliament could enact such provisions when there was no relevant earlier legislation and it could do so in such precise words that the interpretation problem in McGuigan did not arise. That would not violate the rule in Kienapple or, for that matter, any other settled rule against multiple convictions. The question, then, is not so much whether Parliament can displace the Kienapple principle, but whether "fundamental justice" within the meaning of s. 7 is breached by convicting an accused who has already committed a robbery of a second offence punishable by mandatory imprisonment for using, as opposed to being armed with, a firearm in committing that robbery.

That brings us squarely to what Parliament has done and why it has done it; not how it has done it. Now what Parliament has done in this case, we saw, is in substance to create an aggravated form of robbery, to punish more severely an accused who uses a firearm in perpetrating that offence by imposing an additional penalty including a mandatory period of imprisonment. Parliament's reason for so acting was its grave concern with the proliferation of firearm‑related crime.

That this aggravated form of robbery exposes the victim to serious injury or death and that there has been a proliferation of such firearm‑related offences in recent years scarcely needs demonstration. Under these circumstances, the creation of such an offence does not, in my view, constitute a departure from fundamental justice.

Whether Parliament would in certain circumstances be prevented by s. 7 from defining or redefining a single transaction so as to create a series of offences for no obvious reason I need not consider. Nor need I consider whether, in a particular situation, the imposition of a mandatory sentence offends against the principles of fundamental justice or constitutes cruel and unusual punishment. These issues were not argued before this Court.

In view of my conclusion on the question of multiple convictions, it becomes unnecessary to discuss s. 11(h) of the Charter .

Sections 83 and 84

There remains the question whether the Kienapple principle applies so as to absolve the appellant from being convicted under the fourth count of pointing a firearm under s. 84 in view of his conviction on other counts. I shall, for the moment, confine my remarks to the interplay between that section and s. 83. It is obvious that pointing a gun is a manner of using it and at first blush the Kienapple situation would seem to apply when a person is charged with offences under both provisions. The trial judge, however, saw the particularizing of pointing s. 84 as providing an additional ingredient like that in McGuigan sufficient to indicate an intention by Parliament to create a separate and distinct offence. There were, he noted, many different ways in which a firearm may be used. His reasoning appears in the following paragraph [at p. 336]:

In the case now before me the accused made "use" of the firearm by producing it, then by loading it and then by pointing it as well. Because a firearm may be used within the meaning of s. 83(1)(a) in many ways other than by pointing it at another and Parliament created the offence under s. 83 and the offence under s. 84 at the same time, I do hold that they are separate and distinct offences and that by reason thereof ss. 7 , 11 and 12 of the Charter and the principle of Kienapple do not foreclose a conviction for both offences with the punishment therefore to be governed by the "disproportionality principle."

If by this statement the trial judge meant that a person might be convicted of both offences even where there was no other evidence of use other than the pointing, I cannot agree with him. It is true that Dickson J. in McGuigan stressed the difference between "use" and "armed" and con­cluded that use meant something more than being armed. The use as so construed was necessary to bring s. 83 into operation. Here we have the reverse situation, the extra ingredient being in the offence of pointing.

It may be, however, that the courts below thought that the accused should be convicted of both offences because there was evidence of other types of uses of the firearm sufficient to support a charge under s. 83 either as additional to the robbery or the pointing charge. This poses a more difficult problem from a purely logical standpoint. The fact is, however, that all these types of uses were brought forward in a prosecution for all these charges. Moreover, in the case of the pointing charge, one would be securing a conviction on the more serious charge on the basis of a use preparatory to, and less dangerous than, the pointing. So far as the robbery is concerned, the accused, it must be remembered, is already receiving additional punishment under s. 83 for having used a firearm during its commission.

Practical considerations such as these militate against a too rigorous application of logic in attempting to discern Parliament's intention. The trial judge's analogy from McGuigan does not appear to me to be persuasive. As I see it, it is quite reasonable to hold that Parliament intended to create an offence of using a firearm while engaged in a robbery that is separate and distinct from the offence of robbery. Indeed, it is hard to imagine what Parliament could reasonably have intended by s. 83 if it did not expect it to apply to robbery and other offences where the use of firearms is most prevalent. Particularly is this so in the context I have already described.

But when an essential ingredient of an offence, such as the offence against pointing, includes the use of a firearm, it is difficult to believe that Parliament intended by s. 83 automatically to make the same objectionable behaviour the subject of two separate offences, each with its own penalty. And, as I mentioned, if a firearm is used in the commission of another offence, s. 83 provides a far more serious penalty than for pointing it, fourteen years imprisonment with minimum periods of imprisonment as opposed to five years. It would, therefore, require far clearer language than appears in the legislation to persuade me that Parliament contemplated the type of result that prevailed below.

The foregoing conclusion receives support from R. v. Langevin, supra. There Martin J.A., we saw, also stressed the ingredient of using a firearm in s. 83 in addition to being armed with it, which is the requisite under s. 302(d). But he saw a clear distinction between that situation and one involving the offence of pointing. At page 145 he had this to say:

Mr. Hunt conceded during argument that it would not be reasonable to interpret s. 83 as applying to offences which by their definitions in the Code require the use of a firearm as a constituent of the offence, for example, pointing a firearm at another (s. 84(1) (rep. & sub. idem)) and discharging a firearm with intent to wound (s. 228).

More recently, Martin J.A., again speaking for the Ontario Court of Appeal, reiterated this view in R. v. Allison and Dinel (1983), 5 C.C.C. (3d) 30, a case involving a multiplicity of offences decided after the decision of the trial judge in the present case. Martin J.A. there dealt with the interrelationship of a charge under s. 83 and one of wounding and maiming under s. 228. The latter section creates a series of offences, some of which include the discharge of a firearm as a constituent element to the offence while others require instead the causing of bodily harm. In his view, s. 83 could not be invoked in the case of offences requiring the discharge of a firearm. After quoting the passage from Langevin just cited, he added the following remarks at p. 40:

We see no reason to change the opinion expressed in that case. We do not think it would be sensible to construe that section as enabling s. 83 to be invoked in those circumstances. Such an indictment would, in effect, allege that A, while committing the indictable offence of pointing a firearm (or discharging a firearm with intent, etc.), did unlawfully use a firearm, contrary to s. 83. We would not think such an interpretation of s. 83 would be sensible or should be ascribed to Parliament.

As can be seen from that case, this approach can at times lead to fine distinctions. This, however, should not obscure the fundamental differences between the two situations with which we are dealing. In making the major amendments known as the gun control legislation, Parliament must have intended to create a further deterrence to the use of firearms in offences such as robbery that may be committed without the use of a firearm but where such use is prevalent. But these considerations have no bearing where the principal offence itself requires as a necessary ingredient the use of a firearm. It is difficult to see what distinct and separate offence is created in such a case, both being concerned with the use of a firearm, and I fail to see how this can be altered by the fact that a particular use is specified in the principal offence. Accordingly, the Kienapple principle should apply in relation to the second and fourth counts. The gravity of the offence under s. 83(1)(a) being greater, I do not think a verdict of guilty should have been entered in respect of the charge of pointing. The Charter argument does not, therefore, arise in this context.

Conclusion

For these reasons I would allow the appeal against conviction on the fourth count, quash the conviction thereon and order a verdict of not guilty to be entered in lieu thereof. In other respects, the appeal should be dismissed.