Kienapple and Convictions: Optics and the Legal System

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Canadian criminal cases always have a style of cause (name of the case) that says R v [SURNAME]. The “R” stands for either Rex (King) or Regina (Queen), depending on who sits on the throne in Britain. This is because criminal charges are public wrongs, or wrongs against society at large. Personal wrongs are addressed in tort law, which has a lower standard of proof (the balance of probabilities instead of criminal law’s guilt beyond a reasonable doubt), and the perpetrator of an assault, to take one example, can be both charged by the Crown in criminal law and sued by the victim himself under tort law.

The public nature of criminal law entails a great deal of accountability. Optics is crucial to the successful operation of criminal law – justice being done is imperative, but it must also be clear to the public at large that justice is being done. Public trust in our legal system overall is necessary for it to continue to function. From a civil liberties standpoint, the importance is obvious: if we lack trust in our legal system, how can we reasonably expect to avail ourselves of our civil liberties?

While looking through the digital pages of the excellent Whitehorse Star, I came across a worrying comment which showed the great importance of optics. The comment read, unedited and in full:

On March 4, 2019, Judge Cozens rendered his decision in R. v. M.J.H., 2019 YKTC 11 which essentially saw M.J.H. convicted of break and enter to commit an indictable offence of sexual assault. The sexual assault happened and is described in the decision. However, Judge Cozens judicially stayed the sexual assault charge. M.J.H. can now say he did not commit a sexual assault even though he in fact did. Although being sexually assaulted is considered to be a consideration in a Gladue analysis committing a sexual assault can disappear with a Gladue analysis an [sic] subsequent spin. The victim disappears… She is effectively erased with a few judicially pecked keystrokes… THIS IS NOT JUSTICE – THIS IS BARBARIC!!! Where are the Victims Rights Groups? Where are the protests?

Those who have seen the 1976’s Taxi Driver, 1991’s The Punisher, or even 1994’s Wyatt Earp know this sentiment well, and fans of world-famous bands like Metallica (“…And Justice for All”) and Slayer (“Dittohead”) hear it expressed it in their lyrics. Where do we turn if our justice system no longer delivers justice? The answers, in film and song, are bleak.

Upon reading the sentencing decision and doing a bit of research, Justice Cozens appears to have made the right legal decision. His error, which prompted the zealous comment above, lay primarily in overestimating the legal knowledge of those who would read his reasons for sentencing. This is a common problem with experts in any field, or for those with comparatively greater knowledge than their interlocutors or audience. My goal here is to fill in the gaps that are likely so obvious to Justice Cozens that he felt no need to address them in his reasons for sentencing.

Here, in full, is the offending paragraph:

M.J.H. was convicted after trial of the offence of break and enter and commit sexual assault contrary to s. 348(1)(b) of the Criminal Code (R. v. M.J.H., 2018 YKTC 45).  A conviction on the s. 271 offence of sexual assault was conditionally stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R 729.

Our commenter was correct in noting that the sexual assault simpliciter (legalese for on its own or without qualification) was stayed. A stay is stopping a legal proceeding. On its face, it certainly appears that the defendant, M.J.H., is getting away with sexual assault. We can see in the sentencing reasons that he did indeed commit the sexual assault. Why would the Court do this? Gladue reasons, which I have addressed in more detail elsewhere on this blog, are brought up by our commenter, but that analysis misses the mark. The key to understanding the legal reasoning of Justice Cozens here lies in the unexplained “principle in R v Kienapple” Justice Cozens refers to without further comment.

R v Kienapple is a Supreme Court of Canada decision from 1974. The facts are unnecessary to delve into and are not pleasant reading. The principle Justice Cozens refers to is this:

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 a species of the ubiquitous “double jeopardy” rule but with a small twist. It is easiest to explain by example: you cannot be convicted of both first degree murder and manslaughter for causing the death of the same person. It would be illogical and unjust to convict someone of murder twice for killing one person; it is impossible to cause a single person two deaths. In this scenario, manslaughter is the “lesser charge,” meaning it carries less of a mandatory sentence and is seen as slightly less morally blameworthy by society at large. When two charges that are essentially the same are proved on the facts, the application of the “principle in Kienapple” tends to dictate that the lesser charge is left by the wayside and a conviction entered on the charge with a greater sentence (and often higher degree of moral blameworthiness).

Returning to our case, Justice Cozens stayed the sexual assault simpliciter charge not because he intended to “erase” the victim, but rather to ensure that justice was served. M.J.H. committed one sexual assault and can therefore only be convicted of sexual assault once. Section 348.1(b), which M.J.H. was convicted under, merely adds an “aggravating circumstance” of home invasion to a violent crime (“violence or threats of violence to a person or property”).

An aggravating factor is one which makes a crime “worse,” for lack of a better term. Sentencing guidelines in our Criminal Code state the following at Section 718.2(a) in part:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender… [Emphasis added].

In convicting M.J.H. under Section 348.1(b), Justice Cozens ensured a harsher sentence for a crime which undoubtedly deserves one. Sexual assault is a horrible crime on its own, but is made “worse” (or more morally blameworthy) when someone invades another person’s home – their domain, their castle, their safe place – and then commits that abhorrent act. The sentence should reflect this added violation, and in his sentencing decision Justice Cozens ensured that it would. Overall, in my understanding, justice was done.

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.