Kienapple v. R.

LASKIN J.

There are no facts in dispute in this appeal and only the barest narration is necessary for its disposition. The appellant accused was indicted jointly with another male person on two counts of sexual offences against a girl admittedly thirteen years of age at the time. The offences charged were (1) rape, con-

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trary to s. 143 of the Criminal Code, and (2) unlawful carnal knowledge of a female under fourteen years of age, contrary to s. 146(1).

The relevant portion of the trial judge’s charge to the jury in respect of these two counts was as follows:

As to Kienapple, your possible verdicts are guilty or not guilty on Count 1, rape; if you find him guilty on Count 1, then you need not consider any of the included offences that I am about to mention and mentioned previously and you may also proceed at once to find him guilty on Count 2, because a conviction for rape also includes a finding of intercourse with a girl. It is admitted that she is under fourteen. So that you may find him guilty on Counts 1 and 2, but if you find him not guilty on Count 1, that is of rape, then you should consider whether it has been proven that he is guilty in Count 2, that is of having had sexual intercourse with a girl under fourteen. If you find him guilty of rape, then you stop right there because that takes care of the other count. If you find him not guilty of rape, go on to consider whether there was intercourse in Count 2.

The jury, on this direction, brought in a verdict of guilty on both counts, and the accused was subsequently sentenced to two concurrent terms of imprisonment of ten years. The Court of Appeal of Ontario dismissed the accused’s appeal without written or recorded reasons. Leave to appeal to this Court was given on the following question:

Whether the accused, having been convicted of rape, should in respect of the same single act have also been convicted of sexual intercourse with a female under the age of fourteen, not being his wife.

I should say that the issue raised by this question was not raised in the Courts below.

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Sections 143 and 146(1), as amended by 1972 (Can.), c. 13, s. 70, reads as follows:

143. A male person commits rape when he has sexual intercourse with a female person who is not his wife,

(a) without her consent, or

(b) with her consent if the consent

(i) is extorted by threats or fear of bodily harm,

(ii) is obtained by personating her husband, or

(iii) is obtained by false and fraudulent representations as to the nature and quality of the act.

146.

(a) is not his wife, and

(b) is under the age of fourteen years,

whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.

The punishment for rape is prescribed by s. 144 which, as also amended by 1972 (Can.), c. 13, s. 70, reads now as follows:

Every one who commits rape is guilty of an indictable offence and is liable to imprisonment for life.

At the material time, so far as the charges against the accused were concerned, the punishments provisions for the two offences also included liability to be whipped. Section 140 is material to the definition of the offence under s. 146(1) in providing that the fact that there was consent to the commission of the offence is not a defence.

It is common ground that unlawful carnal knowledge under s. 146(1) is not an included offence on a charge of rape. Indeed, it could not be because s. 146(1) embraces two situations, one of which has all the ingredients of rape but is in respect of a female under age fourteen, and the second is inconsistent with rape in that there is consent. In a case therefore where there has

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been sexual intercourse with a girl under age fourteen and the question of consent is in issue (the burden being on the Crown on a charge of rape to negative it beyond a reasonable doubt), it is entirely understandable that the Crown would seek to indict an accused on two counts, as in the present case. Where the jury brings in a verdict of guilty on the first count of rape, there being only one act of sexual intercourse involved with the same girl, it has perforce found that the sexual intercourse was without consent and there can be no finding of guilt on the second count on the basis of consent, albeit this is not a defence. It is said, however, that there is no inconsistency in finding the accused guilty under s. 146(1) simply on the basis of the verdict of guilty of rape; such a finding, it is contended, merely fastens on that aspect of s. 146(1) which I described as paralleling all the ingredients of rape but in respect of a female under age fourteen.

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.

The rationale of my conclusion that the charges must be treated as alternative if there is

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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. A convenient beginning is with the maxim expressed in Hudson v. Lee^[13], at p. 990, “nemo debet bis puniri pro uno delicto”, which although framed in terms of double punishment, has come to be understood as directed also against double or multiple convictions; in short, nemo bis vexari as well as nemo bis puniri. This was exemplified in the unanimous judgment of this Court in Cox and Paton v. The Queen^[14], which involved, inter alia, convictions of the accused on two counts, numbered (1) and (3), for conspiracy to steal and conspiracy to defraud, both relating to the same money and securities. Cartwright J., as he then was, speaking for this Court, held that the Manitoba Court of Appeal had properly quashed one of the convictions. He put the matter in these words (at p. 516):

The reason that the convictions on counts 1 and 3 cannot both be supported is not that they are “mutually destructive”, as was said of the counts in R. v. Mills [1959] Cr.L.Rev. 662, but rather that if both were allowed to stand the accused would in reality be convicted twice of the same offence. It is the same conspiracy which is alleged in the two counts and it would be contrary to law that the accused should be punished more than once for the same offence.

Of course, in a strict sense, Cox and Paton was no more a case of multiple convictions for the same offence than is the present case. Rather it was a case, as is the present one, of multiple convictions for the same matter. It is clear to me that in the context of the decision in Cox and Paton the word “offence” was used in

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the sense attributed to it by Pollock B. in The Queen v. Miles^[15] at p. 436, where he said:

At the trial it was proved on behalf of the prisoner, and admitted by counsel for the prosecution, that the first four counts of the indictment referred to the same matter as the offence mentioned in the record. In substance, therefore, the plea and the evidence establish that there was but one offence, and that the acts done by the defendant in respect of which he was convicted, by whatever legal name they might be called, were the same as those to which the indictment referred, and therefore the rule of law Nemo debet bis puniri pro uno delicto applies, and if the prisoner were guilty of the modified crime only he could not be guilty of the same acts with the addition of malice and design.

That case involved a charge of wounding laid under a statute. There had been a previous conviction for assault at common law, and although the offences were different it was held that the accused could not be convicted again for the same matter. Reference was made to The Queen v. Miles by Humphreys J. in Rex v. Thomas^[16], at p. 30 as follows:

The accused entered a plea in bar in which he alleged that the assault of which he had been convicted previously and the wounding and battery in the first four counts of the indictment, were one and the same assault and battery and not other and different. The Court for the Consideration of Crown Cases Reserved upheld the appellant’s plea, which they regarded as an informal plea of autrefois convict, and it is important to examine the reasons why they so held. All the judges considered that the plea and the evidence established that there was one offence only committed by the accused. It was one and the same assault, although in three of the counts that assault was alleged to have been accompanied by circumstances of aggravation.

Blackburn J. had earlier expressed a similar

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view in his judgment in Wemyss v. Hopkins^[17] at p. 381 when he said (in respect of a case where there were successive prosecutions under different statutes):

I think the fact that the appellant had been convicted by justices under one Act of Parliament for what amounted to an assault is a bar to a conviction under another Act of Parliament for the same assault. The defence does not arise on a plea of autrefois convict, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a Court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence.

This statement was quoted with approval by Kellock J. in The King v. Quon^[18], at p. 519. In Connelly v. Director of Public Prosecutions^[19], Lord Pearce, at p. 1362 referred to Wemyss v. Hopkins and like cases for the proposition that “the court in its criminal jurisdiction retained a power to prevent a repetition of prosecutions even when it did not fall within the exact limits of the pleas in bar”.

The pleas in bar are dealt with in ss. 535 to 537 and s. 743(2) of the Criminal Code. So far as autrefois convict is concerned, the relevant provisions, for present purposes, are ss. 536 and 537(1)(a) which speak, respectively, of “the identity of the charges” and, in that connection, “that the matter on which the accused was given in charge on the former trial is the same in whole or in part”. This last quoted provision in s. 537(1)(a) suggests that, so far at least as successive prosecutions are involved, the plea of autrefois convict goes beyond strict identity of offences and is akin to res judicata. But even if the pleas of autrefois be narrowly construed,

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res judicata as a common law defence to a charge is preserved by s. 7(2) of the Criminal Code.

In my view, the term res judicata best expresses the theory of precluding multiple convictions for the same delict, although the matter is the basis of two separate offences. In Studies in Criminal Law (1964) by Morris and Howard, the authors in an essay entitled Res Judicata in the Criminal Law, at p. 252, say that “res judicata as a general principle concerns itself only with the question whether an issue has been decided not with the question in whose favour the decision went”. Although transit in rem judicatam, as used by Blackburn J. in Wemyss v. Hopkins, supra, is more appropriate to a plea of autrefois acquit or issue estoppel, it is clear that he was concerned with a matter more akin to double jeopardy and autrefois convict, as was Cartwright J. in the Cox and Paton case. Where there has been a previous conviction of an accused, whether in a former trial or on one count of a multicount indictment, issue estoppel is obviously an inappropriate term to urge against a further conviction of another offence. So too would be autrefois convict in its strict connotation; hence, the utility of res judicata.

On this view, nothing is added or subtracted by s. 11 of the Criminal Code which reads as follows:

Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is,

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unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

This provision had its origin, as a general provision, in An Act respecting Punishments, Pardons and the Commutation of Sentences, R.S.C. 1886, c. 181, s. 3 where it was as follows:

Whenever any offender is punishable under two or more Acts or two or more sections of the same Act, he may be tried and punished under any of such Acts or sections, but no person shall be twice punished for the same offence.

The above-quoted s. 3 was an amalgam of earlier legislation having a particular application and found in The Offences against the Person Act, 1869 (Can.), c. 20, ss. 40 and 41, The Wreck and Salvage Act, 1873 (Can.), c. 55, s. 33, and The Breaches of Contract Act, 1877 (Can.), c. 35, s. 6. It was carried literally into the first Criminal Code, 1892 (Can.), c. 29, s. 933, but in the 1906 revision it underwent a change to conform with s. 33 of the United Kingdom Interpretation Act, 1889 (U.K.), c. 63. The present s. 11 of the Criminal Code is in substance a reenactment of the United Kingdom s. 33, but with a slight alteration in language. In its material terms, it conforms to the comparable United Kingdom section. I find it a curious provision because in its opening words (“where an act or omission is an offence under more than one Act…”) it appears to reflect the maxim nemo bis vexari, and yet in its concluding words (“not liable to be punished more than once for the same offence”) it reflects the maxim nemo debet bis puniri pro uno delicto’.

Humphreys J. in Rex v. Thomas, supra, insisted on a literal application of those concluding words, rejecting a text-book gloss on them as embracing “act” and “cause” as well as “offence” in the strict sense. I do not think that his illustration of successive successful prosecu-

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tions for assault and for manslaughter (after the assault victim dies), as shown in Regina v. Morris^[20], is a convincing support for reading s. 33 with literal emphasis on its concluding words and no emphasis on its opening words. That situation and the one that was presented in Rex v. Thomas itself (conviction of wounding with intent to murder, followed by an indictment for murder when the victim dies) can stand on their own without warranting a restrictive reading of the English s. 33 and our s. 11. The ensuing death brings into view a new relevant element not present when the first conviction occurred. That is not so in the case at bar. I would note, further, that if manslaughter and assault were charged in the same indictment the accused could not be convicted of both because of the included offence rule.

I cannot view s. 11 as modifying the scope of res judicata, let alone the scope of the pleas of autrefois as defined in ss. 535 to 537 of the Criminal Code. 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.

Although there have been cases where multiple convictions were registered, when in substance only one “crime” has been committed, refusal to interfere on appeal was justified on

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the “no substantial wrong” basis because only one sentence was imposed: see Rex v. Lockett^[21], Kelly v. The King^[22]. The better practice, however, is to avoid multiple convictions, as was done in the Cox and Paton case, and earlier by the Ontario Court of Appeal in Regina v. Siggins^[23], which relied on the opinion of Kellock J. in The King v. Quon, supra. Siggins was a not uncommon case of charging an alleged thief, found in possession of stolen goods, with both theft and unlawful possession. It was there said (at p. 285) that

The Crown is entitled to lay both charges against him, but at the trial, if the jury convict of theft they should not convict on the charge of unlawful possession. If they acquit on the charge of theft they may then consider and, if they see fit to do so, convict on the charge of unlawful possession.

In short, in relation to potentially multiple convictions, it is important to know the verdict on the first count, just as in the case of successive prosecutions it is important to know the result of the first trial: see Friedland, Double Jeopardy (1969), at p. 94.

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: see Connelly v. Director of Public Prosecutions^[24], at pp. 1305 and 1308, per Lord Morris of Borth-y-Gest; cf. Rex v. Kendrick and Smith^[25].

I test the matter in two other ways. If an accused may be charged on two counts, as in the present case, and may properly be found guilty on each for the one act of sexual intercourse with the same girl, it should be open to the Crown to charge him successively in the

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same way. If it obtains a verdict of guilty of rape it should be entitled to prefer another charge under s. 146(1) in order to obtain another verdict of guilty and seek a further consecutive sentence. Yet it seems clear enough that on the second charge, res judicata would be a complete defence since all the elements and facts supporting the conviction of rape would necessarily be the same under s. 146(1). Moreover, since the occurrence involved a proved negation of consent, there could be no conviction under the second aspect of s. 146(1) when there has been a conviction of rape.

In saying that res judicata (as an expression broader than autrefois convict) would be a complete defence, I am applying the bis vexari principle against successive prosecutions, a principle that, according to Morris and Howard, in the essay mentioned earlier, is grounded on the Court’s power to protect an individual from an undue exercise by the Crown of its power to prosecute and punish.

The second test is to reverse the order of the counts in the present case. If on the first charge of an offence under s. 146(1) the jury brings in a verdict of guilty, it would be inconsistent to find an accused guilty on a second count of rape because there may have been consent; and even if not, the considerations underlying res judicata would preclude a verdict of guilty of rape. Of course, if on a first count under s. 146(1) the accused was found not guilty, there could obviously be no finding of guilty of rape unless on the basis that the girl involved was over age fourteen; apart from that, there has been either no sexual intercourse proved even if there was no consent, or there has been no sexual intercourse proved albeit there was consent.

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Parliament’s power to constitute two separate offences out of the same matter is not in question, but unless there is a clear indication that multiple prosecutions and, indeed, multiple convictions are envisaged, the common law principle expressed in the Cox and Paton case should be followed. Neither the definitions of the respective offences nor their history gives any support to the view that that common law principle has been ousted. The limits of punishment are the same, and I have already spoken of the ingredients of the respective offences. As a matter of history, the present s. 146(1) has its origin in s. 269 of the original Criminal Code 1892 (Can.), c. 29, which used the phrase “carnally knows” instead of “sexual intercourse” both for that offence and for rape. Section 269 was taken from s. 39 of the Offences against the Person Act, R.S.C. 1886, c. 162 which, as amended by 1890 (Can.), c. 37, s. 12 raised the age ingredient from ten years to fourteen and added whipping to the prescribed punishment of a term for life or for not less than five years. When the Offences against the Person Act was first enacted in Canada by 1869, c. 20, carnal knowledge of a girl under ten was a capital offence under s. 51, as was rape; but, unlike rape, which remained a capital offence until the enactment of 1953-1954 (Can.), c. 51, s. 136 (although whipping was added in 1921 to the alternative maximum punishment of life imprisonment), the maximum punishment for unlawful carnal knowledge was changed to a life term by 1877 (Can.), c. 28, s. 2.

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

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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. As a practical matter, this situation invited statutory reform to make it possible for a jury to return a verdict of guilty of unlawful carnal knowledge on a charge of rape of a girl under fourteen. In England, this situation was met by the Criminal Law Amendment Act, 1885 (U.K.), c. 69, s. 9, and similar enactments were made in the Australian States: see Howard, Australian Criminal Law (2nd ed. 1970), pp. 172-3. The English provision was continued under s. 37 of the Sexual Offences Act, 1956 (U.K.), c. 69, but was repealed by s. 10 and Schedule 3, s. 13(1)(d)(i) of the Criminal Law Act, 1967 (U.K.), c. 58; and see Regina v. Hodgson^[26].

We have never had legislation of that kind in Canada, and hence we continue to be governed by the law as to included offences, which excludes a conviction under s. 146(1) on a charge of rape. Rex v. Marcus and Richmond^[27], a judgment of the Ontario Appellate Division, is particularly illustrative. The accused was charged with rape the victim being a girl under age fourteen. There was some question at the trial whether the Crown proved want of consent, and the trial judge charged the jury, wrongly, that it was open to them to bring in a verdict of guilty of unlawful carnal knowledge of a girl under age fourteen. In setting aside the verdict and ordering a new trial on the charge of rape the Court added (at p. 166) that “it is probable that the Crown will see fit to lay a further charge based upon the provisions of sec.

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301 [now s. 146(1)]”.

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. No doubt, it can be taken into account on sentence under s. 146(1), but, equally, it can be considered under s. 143; and I can see no basis for departing from the principle under discussion if the age of the victim happens to be thirteen instead of fifteen when the maximum punishment is the same under both s. 143 and s. 146(1).

In the result, I would allow the appeal and quash the conviction for unlawful carnal knowledge under s. 146(1), and, of course, the concurrent sentence of ten years imposed in consequence of that conviction must also fall.

Appeal allowed, FAUTEUX C.J. and ABBOTT, MARTLAND and RITCHIE JJ. (dissenting)

.

Solicitor for the appellant: J.D. Morton, Toronto.

Solicitor for the respondent: The Attorney General of Ontario.