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Ontario and Canada
Appeal Court Dicta

Criminal - Kienapple Principle

. R. v. D.N.

In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions.

In this quote the court comments on the operation of the Kienapple Principle, here in the event of a successful appeal:
[97] A Kienapple stay is conditional on the final disposition of the charge for which there was a conviction. If an appeal in relation to that charge is allowed and a new trial is ordered, the conditional stay dissolves and the stayed count is also remitted back to the trial court. Otherwise, the stay becomes permanent: See, for example, R. v. Drury, 2020 ONCA 502, 391 C.C.C. (3d) 18, at paras. 78-81, 87.
. R. v. Graham

In R. v. Graham (Ont CA, 2023) the Court of Appeal briefly summarized the Kienapple principle, limiting the 'counts' that a criminal defendant can be convicted of:
(ii) Application of the Kienapple principle

[24] I agree that the convictions and sentences on counts 2 to 5 and 8 should be set aside and that those counts should be stayed, as conceded by the Crown. In accordance with Kienapple, the appellant should be convicted of the most serious offences arising out of his possession and use of a firearm, while the counts with respect to the related, lesser offences for the same criminal wrong or transaction should be stayed: R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at paras. 27, 28. The convictions and sentences on counts 2 to 5 and 8 should therefore be set aside. As the sentences imposed on counts 2 to 5 and 8 were concurrent to the other sentences, the stay does not otherwise affect the appellant’s sentence.


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