R. v. Kinnear (R.), (2005) 199 O.A.C. 323 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Doherty, Moldaver and Gillese, JJ.A.
• Citation: (2005), 199 O.A.C. 323 (CA)
• Date: 15 June 2005

R. v. Kinnear (R.) (2005), 199 O.A.C. 323 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JN.047

Her Majesty The Queen (applicant/appellant on sentence appeal/respondent on conviction appeal) v. Robert Kinnear (respondent on sentence appeal/appellant on conviction appeal)

(C40755; C40767)

Indexed As: R. v. Kinnear (R.)

Ontario Court of Appeal

Doherty, Moldaver and Gillese, JJ.A.

June 15, 2005.

Summary:

The trial judge made findings of guilt on the following charges against the accused: theft (count 1); two counts of threatening death (counts 2 and 3); possession of a weapon, to wit a sawed-off shotgun, for a purpose dangerous to the public peace (count 4); escaping lawful custody (count 5); two counts of using an imitation firearm while committing the indictable offence of threatening death (counts 6 and 7); and using an imitation firearm while committing the indictable offence of escaping custody (count 8). The trial judge decided that a sentence totalling one year, nine months and seven days was appropriate for the accused. The trial judge gave the accused a credit covering the entire sentence where the accused had spent 11 months in the Don Jail. As a result, the trial judge suspended sentence and placed the accused on probation for three years. The trial judge also held that s. 85(4) of the Criminal Code, which required consecutive sentences for certain accompanying convictions for using an imitation firearm while committing an indictable offence, violated the prohibition against cruel and unusual punishment in s. 12 of the Charter. The accused appealed against conviction. The Crown appealed against sentence, not seeking a variation but rather seeking to overturn the ruling that s. 85(4) was unconstitutional.

The Ontario Court of Appeal allowed the accused's appeal in part. The court set aside the convictions on counts 6 and 7, and, based on the Kienapple rule, directed that stays be entered on those counts. The court dismissed the sentence appeal but set aside the declaration that s. 85(4) was unconstitutional.

Civil Rights - Topic 3822

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Sentences - General - [See Courts - Topic 584 ].

Courts - Topic 5

Stare decisis - Authority of judicial decisions - Authority and use of precedents - General - [See Courts - Topic 584 ].

Courts - Topic 584

Judges - Duties - To determine issues - Section 85(4) of the Criminal Code required consecutive sentences for certain convictions accompanying a conviction for using an imitation firearm while committing an indictable offence - In the present case, the trial judge believed that s. 85(4) required three one-year consecutive sentences in addition to sentences for other offences - The trial judge held that this constituted cruel and unusual punishment and ruled that s. 85(4) violated s. 12 of the Charter - The trial judge imposed a sentence totalling one year, nine months and seven days less a credit covering the entire sentence where the accused had spent 11 months in the Don Jail - As a result, the trial judge suspended sentence and placed the accused on probation for three years - The trial judge would have imposed the same sentence even if he had found that s. 85(4) was constitutional as he would also have given credit for the entire sentence - The Ontario Court of Appeal quashed the ruling that s. 85(4) was unconstitutional where: (1) the constitutionality of s. 85(4) was irrelevant; (2) the trial judge failed to consider and apply binding authority from the court; and (3) even if prior decisions of the court were distinguishable, the trial judge's finding that s. 85(4) imposed cruel and unusual punishments was "entirely at odds with the analysis provided in the controlling precedents from this court and the Supreme Court of Canada" - See paragraphs 57 to 81.

Criminal Law - Topic 76

General principles - Res judicata (multiple convictions for same subject matter precluded) - General principles - The Ontario Court of Appeal discussed the Kienapple principle - Referring to Supreme Court of Canada authority, the court stated that the Kienapple rule precluded multiple convictions for different offences only where there was both a factual and a legal nexus connecting the offences - The factual nexus was established where the charges arose out of the same transaction - The legal nexus existed if the offences constituted a single wrong or delict - See paragraphs 27 to 40.

Criminal Law - Topic 80

General principles - Res judicata (multiple convictions for same subject matter precluded) - Circumstances when defence may be raised - The accused was caught shoplifting but he escaped after pointing a non-functional sawed-off shotgun at two security officers and threatening to shoot them and pointing the sawed-off shotgun at a third officer - This led to: (1) three convictions on two charges of threatening and one charge of escaping lawful custody; and (2) three convictions on charges of using an imitation firearm while committing an indictable offence - The Ontario Court of Appeal, on the basis of the Kienapple principle, upheld the set (1) convictions absent legal nexus between the offences - As for set (2), the court held that the Kienapple principle foreclosed convictions on all three charges - Those charges represented a single criminal wrong justifying only one conviction - See paragraphs 41 to 56.

Criminal Law - Topic 82

General principles - Res judicata (multiple convictions for same subject matter precluded) - Bars to raising the defence - [See Criminal Law - Topic 80 ].

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, consd. [para. 27].

R. v. Provo, [1989] 2 S.C.R. 3; 97 N.R. 209; 59 Man.R.(2d) 1; 49 C.C.C.(3d) 417, refd to. [para. 28].

R. v. D.W.P. - see R. v. Provo.

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93; 30 C.C.C.(3d) 35, consd. [para. 30].

R. v. McGuigan, [1982] 1 S.C.R. 284; 40 N.R. 499; 66 C.C.C.(2d) 97, refd to. [para. 40].

R. v. Krug, [1985] 2 S.C.R. 255; 62 N.R. 263; 11 O.A.C. 187; 21 C.C.C.(3d) 193, refd to. [para. 40].

R. v. Brown (B.B.), [1994] 3 S.C.R. 749; 173 N.R. 317; 97 Man.R.(2d) 169; 79 W.A.C. 169; 93 C.C.C.(3d) 97, refd to. [para. 40].

R. v. Woods and Feuerstein (1982), 65 C.C.C.(2d) 554 (Ont. C.A.), consd. [para. 54].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 59].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

R. v. Wheatle (G.G.) (1993), 67 O.A.C. 373; 86 C.C.C.(3d) 378 (C.A.), refd to. [para. 60].

R. v. Spark (1986), 27 C.R.R. 28 (Ont. C.A.), refd to. [para. 60].

R. v. Brown (B.B.) (1993), 83 Man.R.(2d) 216; 36 W.A.C. 216; 80 C.C.C.(3d) 275 (C.A.), revd. [1994] 3 S.C.R. 749; 173 N.R. 317; 97 Man.R.(2d) 169; 79 W.A.C. 169; 93 C.C.C.(3d) 97, refd to. [para. 61].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161; 67 C.C.C.(3d) 481, refd to. [para. 64].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 148 C.C.C.(3d) 1, refd to. [para. 64].

R. v. McDonald (C.) (1998), 111 O.A.C. 25; 127 C.C.C.(3d) 57 (C.A.), refd to. [para. 64].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161; 58 C.C.C.(3d) 449, refd to. [para. 66].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 85(2)(a) [para. 46]; sect. 85(4) [para. 50].

Counsel:

Susan G. Ficek, for the applicant/appellant on the sentence appeal and the respondent on the conviction appeal;

Paula Rochman, for the respondent on the sentence appeal and the appellant on the conviction appeal;

John North and Steve Coroza, for the intervenor, Attorney General of Canada.

This appeal was heard on April 20, 2005, by Doherty, Moldaver and Gillese, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Doherty, J.A., and released on June 15, 2005.