Disparities between elements and legal consequences of charges disqualified application of Kienapple

Criminal Law – Defences – Res judicata

In 2014, accused, who had history of driving offences under Criminal Code and Highway Traffic Act (Ont.) (“HTA”), was convicted of driving while disqualified and failing or refusing to provide breath sample and was sentenced to 90 days’ incarceration and one-year driving prohibition. Because it was accused’s fourth Criminal Code driving offence, Ministry of Transport suspended his licence for life. In July 2016, accused was charged with operating motor vehicle while disqualified under Criminal Code and four HTA offences, including driving while licence suspended. Accused pleaded guilty to two HTA offences and at subsequent criminal trial was convicted of driving while disqualified. Accused appealed his conviction of driving while disqualified arguing it should be stayed pursuant to Kienapple principle. Appeal dismissed. There were significant number of disparities between elements and legal consequences of charges so as to disqualify application of Kienapple principle. Although driving while unauthorized was foundation of each charge, HTA offence was strict liability offences and Criminal Code offence had mens rea component, and Crown bore heavy burden of proof. Requirement that disqualification leading to license revocation must arise out of previous Criminal Code offence was not necessary under HTA as HTA offence could be prompted by numerous administrative and regulatory breaches. There was significant difference in penalties between two offences. Gravaman of offences were different as HTA violation was violation of administrative suspension while Criminal Code offence involved violation of court order. HTA offence pertained to driving on highway while Criminal Code offence was not so limited. Difference between two charges gave rise to different delicts out of same set of facts and applying Kienapple in these circumstances would be inappropriate.

R. v. Summers (2019), 2019 CarswellOnt 9824, 2019 ONSC 3746, Nathalie Champagne J. (Ont. S.C.J.).

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