IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Blinn, 2009 NSPC 19
Date: May 26th, 2009
Docket: C#1760231, C#1763671
Registry: Digby, Nova Scotia
Between:
Her Majesty The Queen
v.
Adrien Bernard Blinn
Judge: Jean-Louis Batiot, J.P.C.
Written decision: May 26th, 2009
Charge(s): 78(3) LCA and 253(b) CC
Counsel: Rosalind Michie, Crown Prosecutor
Philip J. Star, Q.C., Defence Counsel
By The Court:
[1] This is an application to have the charge, contrary to section 253(1)(b) of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46 (thereafter the Code), quashed or stayed: its basis is the same evidence sustaining a conviction for an offence contrary to s. 100A of the Motor Vehicle Act, R.S.N.S. 1989, ch. C-293, (thereafter MVA); such prosecution infringes prospectively the Kienapple principle, forbidding multiple convictions.
[2] An agreed statement of facts is as follows:
On the 11th day of February, 2007, the Accused was apprehended by the RCMP operating a motor vehicle at approximately 3:45 a.m.. After noting various signs of alcohol consumption, the Accused was eventually read a demand to provide a sample of his breath into an Approved Screening Device, which resulted in a “Fail” reading. He subsequently provided samples of his breath pursuant to a breathalyser demand resulting in readings over the permissible limit.
The Accused was a newly licensed driver within the meaning of the relevant section of the Motor Vehicle Act at the time of his apprehension by the RCMP.
The Accused was charged with various offences arising out of this matter including a charge contrary to Section 100A(1) of the Motor Vehicle Act, as well as a charge contrary to Section 253(b) of the Criminal Code.
The Accused, through his counsel, entered a plea of guilty in Provincial Court in Comeauville on August 27th, 2007 to the charge contrary to Section 100A(1) MVA and was sentenced accordingly.
ISSUE
[3] Does the conviction for a charge contrary to Section 100A(1) of the Motor Vehicle Act against the Accused preclude him from being convicted of an offence contrary to Section 253(b) of the Criminal Code arising out of the same set of circumstances/incident?
[4] Mr. Blinn has already been convicted and has served his sentence upon pleading guilty through counsel on August 27th, 2007 to the s. 100A (1) offence of the MVA. He was also charged under s. 253(1)(b) of the Code, prohibiting anyone from driving a motor vehicle with a blood/alcohol concentration of over .08 mg of alcohol in 100 ml of one’s blood, arising out of the same fact situation.
[5] S. 100A(1) of the MVA forbids a licensed learner, a newly licensed driver or one with less than two years experience (before the coming into force of that section) to “operate or have care of control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such quantity that the concentration in his blood exceeds .00 milligram”.
[6] In Canada, generally, anyone with a driver’s licence may drive a motor vehicle on a highway having consumed alcohol, as long that person’s ability to drive is not impaired by alcohol or a drug, or the blood/alcohol concentration is .o8 mg of alcohol in 100 ml of blood, or less, under s. 253 of the Code.
[7] Both charges may trigger similar consequence, but s. 253 includes prohibition from driving, and a possible jail term, particularly for repeat offenders.
[8] There is no evidence as to any readings. The sentence imposed was a fine and a six month suspension from driving.
[9] Being a provincial offence, s. 100A is not an included offence; it appears however to be the same delict or matter, but for a different level of blood/alcohol concentration, and for a different class of driver.
JURISPRUDENCE
[10] The Supreme Court of Canada, in R. v. Kienapple (1974) 15 C.C.C. (2d) 524 prohibits double jeopardy, i.e. to be convicted for two similar offences, arising from the same circumstances.
[11] Crown counsel argues there is not a sufficient factual and legal nexus between the offences to bring this principle to bear in the case at bar. It relies on R. v. Prince (1987), 30 C.C.C. (3d) (S.C.C.): as the criminal offence requires a higher consumption of alcohol, and the provincial offence requires the driver be newly licensed (in this case), these unique features are not common elements to both offences and they cannot be subsumed in each other. Accordingly ... the additional elements contained in the two offences preclude the operation of the Kienapple principle.
[12] When there are two related offences, based on the same set of facts, the Crown must elect to proceed with the more serious one first:
Where a trial .... proceeds on two or more counts of offences of different degrees of gravity, and the same delict or matter underlies the offences in two of the counts, so as to invite application of the rule against multiple convictions, the trial judge
should direct himself ... that if he finds th accused guilty on the more serious charge, there should be an acquittal on the less serious one;... R. v. Loyer and Blouin [1978], 40 C.C.C. (2d) 291 (S.C.C.), at p. 5 (attempted armed robbery and dangerous weapon possession).
[13] In P. v. The Queen [1989], 49 CCC (3d) 417, the Supreme Court of Canada held that the trial judge should enter a conditional stay on the lesser charge. Such a stay would dissolve, on the successful appeal of the more serious charge. The case is then referred back to the trial judge for conviction and sentencing.
[14] Here the Crown elected to act first on the lesser charge; having obtained a conviction, is it open to it to go to trial on the more serious charge?
[15] It is a Crown, not an accused’s election:
Kienapple doctrine cannot apply to bar a conviction of the more serious offence of which (as here) the accused would otherwise, on the evidence, be found guilty simply by offering a plea of guilty to the less serious offence and having the plea accepted (Loyer, at p. 5).
[16] What then when an accused has already been sentenced?
[17] In Kienapple, five out of nine judges held there that unlawful carnal knowledge of a girl under 14 (s. 146(1)) was 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 the age of 14, and the second is inconsistent with rape in that there is no consent (At p. 14).
[18] When both charges are tried and the accused is convicted of rape, he cannot also be convicted of unlawful carnal knowledge. It is prohibited as a multiple conviction since it arises from the “same delict against the same girl”, either by virtue of the plea of autrefois convict (Section 537(1)(a)), or by the broader common law defence of res judicata.
[19] The relevant inquiry, as far as res judicata is concerned, is whether the same delict or matter (rather than the same offence) is comprehended by two or more offences. Indeed Laskin, C.J.C. states, at p. 15 of Kienapple, supra, at 2004 Canada Law Book Inc.:
“ .... if the accused has been charged, first, with rape and secondly, with section 146 offence [unlawful carnal knowledge] 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 Section 146(1) where sexual intercourse with a girl under age 14 has been proved.
[20] At page 20
“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 the second count, the situation invites application of a rule against multiple convictions. ................................................
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 same way. If it obtains a verdict of guilty of rape it should be entitled to prefer another charge under Section 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, will be a complete defence since all the elements and facts supporting the conviction of rape would necessarily be the same under Section 146(1). Moreover, since the occurrence involved a proved negation of consent, there could be no conviction under the second aspect of Section 146(1) when there has been a conviction of rape.
[21] In effect, it is the same act against the same girl who happens to be under the age of 14. A conviction on the greater charge pre-empts a conviction on the second and lesser charge (if one can label it such, as both charges carry a possible life sentence). Both charges have the same factual nexus.
[22] R. v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.) provides an example of insufficient nexus between charges. The same stab wound of a mother, with the resulting death of the unborn child shortly after its birth caused both injuries. They were two different persons (by operation of law), although in one body at the time of the offence. Neither of these elements could be subsumed into the other, therefore the rule against multiple convictions would not apply. At p. 53, Dickson, C.J.C. states:
One offence contains as an essential ingredient the causing of bodily harm to Bernice Daniels. The other offence requires proof of the death of Daniels’ child. I cannot see how either of these elements can be subsumed into the other. There is no sense in which it can be said that one is a particularization of the other or is designed to facilitate proof of the other.
[23] In fact, the wounding of the mother may not necessarily cause the death of the child, nor the corollary be necessary factual as well; except, in this case, the mother was stabbed in the abdomen and the one stab caused injuries to both bodies.
[24] Gleaned from Prince, supra, there are three questions to ask, to determine wether the Kienapple principle applies:
(1) Does the same act of the accused ground each of the charges (At p. 44)?
(2) Is there an adequate relationship between the offences themselves (at p. 45)? For example, the offences of hunting at night, or hunting out of season are distinct delicts (p. 46), as are the offences of armed robbery, use of firearm or to have firearm on his person may import a further element (at p. 48), i.e. is it a particularization of the weapon, or that the firearm be used, as one may be armed with it, and not necessarily use it. (R. v. Langevin (1979), 47 C.C.C. (2d) 138 (Ont. C.A.)).
(3) Is it sufficient that the offences share a common element? In Kienapple, the common elements were sexual intercourse with a woman not his wife.
[25] The court concluded, at p. 49:
that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.
APPLICATION
[26] In the case at bar, but for the concentration of alcohol, the charges are similar: the prohibition of driving a motor vehicle with alcohol in one’s bloodstream. The provincial offence forbids the presence of any alcohol (zero tolerance); the criminal charge tolerates an amount up to .08 milligrams in 100 milliliters of blood.
[27] The provincial offence is not repugnant to the criminal offence; it only imposes a higher standard, onto a specific group of people, the young or inexperienced driver, who, otherwise must abide by the criminal standards. It thus complements the criminal legislation.
[28] Further, being a strict liability offence, the Crown bears a lower threshold of proof, in that it does not have to establish the mens rea of the offence.
[29] Thirdly, the sentence is a lesser one.
[30] Yet the Crown must prove the same element of the offence, driving a motor vehicle with alcohol in one’s bloodstream, on a day and place specified in the information.
[31] Both charges arise from the same set of facts. This answers question one above positively. Both address the same issue, indeed with different standards, but nevertheless have the same nexus in fact and in law, one with a stricter tolerance. They are not distinct delicts (para. 24(2) above); indeed the same evidence proves both charges, except that one need not be over .08, yet be over .00.
[32] If both charges had been tried together – and they should have been, to avoid duplicate procedures; see R. v. Clunas, [1992] 1 S.C.R. 595 – and the evidence of presence of alcohol in the bloodstream had been short of the .08 standards but above .00, it would have been opened to the trier of facts to convict on the s.100A MVA offence.
[33] Here, that conviction for the s.100A offence has already been entered, and the sentence served. The Crown elected -- as is its right -- to proceed with that charge first and obtained a conviction and a sentence, nearly two years ago. That conviction has exhausted all the common elements, in the same transaction, of both charges, since having a blood alcohol level over .00 in alcohol in 100 ml of blood necessarily encompasses being over .08 as provided by s. 253(1)(b).
[34] Adopting the comment of E.W. Ewaschuk, cited at p. 47 of Prince, supra, “If the offences stem from the same act and have a common element or elements, then Kienapple should apply”. Here, it clearly does.
[35] The accused happened to fall within the age/experience definition of s. 100A charge; he may, or may not, have been over .08; being over .00 encompasses being over .08; he has already paid his debt to society for having had any alcohol in his bloodstream. The Crown, with a first conviction, has exhausted the evidence; it cannot be used any further to form the basis of another charge. The issue is res judicata. The distinguishing factor of the s. 253 charge become meaningless (Kienapple, at p.22, Canada Law Book). To possibly convict the accused would offend the principle of Kienapple.
[36] Dickson, C.J.C. (at p. 55, Prince), suggests that the Kienapple principle may not be avoided by obtaining a conviction on a lesser charge and then proceed, in a subsequent trial, on the more serious charge, the very issue in the case at bar. Given his conclusions that they were distinct
charges, he did not have to consider whether the second prosecution was entirely precluded, because of this rule against multiple convictions... (p. 42), for the same “cause”, “matter” or “delict”.
[37] The Appeal Division of the Nova Scotia Supreme Court, in R. v. Johnson and Martin 1979. 30 N.S.R. (2d) 682, in an appeal invoking relief under the same principle, in the case of an assault on a person assisting a police officer, and assault causing bodily harm to that same person, on the evidence, stayed the more serious charge while allowing the other [less serious] conviction to remain.
[38] The Crown must now be barred from continuing with the present prosecution since, assuming it proves its case, no conviction can enter as the accused has already been sentenced, on the same fact, for a similar delict, with a close evidentiary nexus to the pending s. 253 (1)(b) charge.
[39] A stay is ordered.
______________________________
Jean-Louis Batiot, J.P.C.