R. v. Provo, [1989] 2 S.C.R. 3 (1989)

R. v. Provo, [1989] 2 S.C.R. 3

Donald Wayne Provo Appellant v.

Her Majesty The Queen Respondent indexed as: r. v. provo

File No.: 20472.

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 acc...

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