



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Meszaros, 2013 ONCA 682

DATE: 20131112

DOCKET: C52332

Doherty, Goudge, Cronk, Blair and Tulloch
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Meszaros

Appellant

Timothy E. Breen, for the appellant

Frank Au, for the respondent

Nancy Dennison and Andrea Bourke, for the intervener the
    Attorney General of Canada

Heard: February 21-22, 2013

On appeal from the conviction entered by Justice Harrison
    S. Arrell of the Superior Court of Justice, sitting with a jury, on April 7,
    2010, and from the sentence imposed on November 2, 2010.

R.A. Blair J.A.:

OPENING

[1]

This appeal is one of six appeals that were heard together because, in
    one fashion or another, they all attack the constitutionality of mandatory
    minimum sentences in the context of gun-related crimes.

[2]

Mr. Meszaros appeals from his convictions and his sentence for the
    following offences:

(i)

assault on William
    Thorne, contrary to s. 266 and pursuant to s. 265(1)(c) of the
Criminal Code
,
    R.S.C. 1985, c. C-46;

(ii)

use of a firearm (a loaded
    shotgun) while committing an indictable offence (the assault), contrary to s.
    85(1)(a); and

(iii)  two
    counts of unlawful storage of a firearm, contrary to s. 86(2).

[3]

He was acquitted on a second charge of assault on another individual,
    Ryan Gaudet.

[4]

The appellant seeks to set aside the convictions on two main grounds. 
    First, he submits that the trial judge erred in his instructions to the jury by
    failing to correct the Crowns closing submissions regarding the defence of
    property defence and that the verdicts are therefore unreasonable.  Secondly,
    he argues that the conviction for use of a firearm while committing an
    indictable offence is barred in these circumstances by what is known as the
Kienapple
rule
[1]
because liability for the predicate indictable offence of assault pursuant to
    s. 265(1)(c) of the
Criminal Code
necessarily involves a finding of
    the use of a firearm in the commission of that offence.  The appellant
    therefore submits as well that the conviction for use of a firearm contrary to
    s. 85(1)(a) contravenes his rights under s. 7 of the
Canadian Charter of
    Rights and Freedoms
.

[5]

The appellant was sentenced to one year in prison for the use firearm
    conviction  the mandatory minimum sentence prescribed for such a conviction. 
    He appeals his sentence on the ground that the mandatory minimum constitutes
    cruel and unusual punishment, thereby violating his rights under s. 12 of the
Charter
. 
    It is for this reason that the appeal was heard at the same time as five other
    appeals raising similar issues.  The decisions in all appeals are being
    released at the same time.

[6]

This appeal raises distinct issues regarding the convictions, however,
    and is therefore being made the subject of separate reasons.

[7]

For the reasons that follow, I would dismiss the conviction and sentence
    appeals.

BACKGROUND AND FACTS

[8]

Mr. Meszaros is the long-time owner of about ten acres of land, located between
    Brantford and Paris, Ontario.  He has a privately stocked trout pond and the
    property is clearly marked with Private Property/No Fishing signs.

[9]

In May 2008, two young men  Ryan Gaudet and William Thorne  were
    fishing in a nearby creek.  After about an hour of fruitless luck, they decided
    to try the appellants stocked pond, knowing when they did so that they were poaching
    and trespassing on what turned out to be the Meszaros property.  Unfortunately
    for them  and, as it turned out, for him  the appellants wife spotted them
    while the appellant was sitting down for his evening meal.

[10]

An
    avid 60-year-old sportsman, the appellant reacted quickly.  He ran into a back
    room where he kept his guns in a closet, took out his 20-gauge double-barrel
    shotgun and three rounds of ammunition, loaded the gun and went out onto his
    porch.  He yelled at the young men, telling them to stay put and not to move.

[11]

Instead
    of complying, Gaudet and Thorne began to run.

[12]

The
    appellant fired a single shot.  There was some debate on the evidence whether
    the two men were struck with the shot, but in the end it was conceded there was
    a reasonable doubt as to whether the appellant shot in the direction of the two
    men and hit them, or simply shot the gun in the air.  Gaudet fled and escaped
    from the property.  Thorne was not so fortunate.  He slipped and fell to the
    ground.  The appellant approached him carrying the weapon.

[13]

According
    to the appellant, he approached Thorne with his gun pointed up in the air and
    told him to stay down.  He accused the younger man of trespassing and
    threatened to call the police.  Thorne begged him not to do that.  The
    appellant told Thorne to put the two fish the men had caught back into the pond,
    which Thorne did.  Thorne then promised never to trespass again.  The appellant
    declined to shake Thornes proffered hand but, satisfied with the apology, told
    Thorne to get his coward friend and get the hell off [his] property.  He
    denied ever pointing the gun at Thorne.

[14]

Mr.
    Thorne told a different story.  He says the appellant approached him with the
    gun pointed at his chest, while Thorne stayed kneeling on the ground with his
    hands in the air, begging the appellant not to shoot him.  The appellant told
    him to get [his] buddy back here.  Thorne saw that the appellants wife had
    come out of the house and, thinking that he would not be shot in her presence,
    he got up and declared: this isnt Texas, you cant shoot people.  The
    appellant laughed and told him they were on his property and he could do
    whatever he wanted.  Thorne did not recall the appellant threatening to call
    the police, but eventually apologized and put the fish back into the pond as
    directed by the appellant.  He left the property by the creek.

[15]

The
    incident leading to the assault charge regarding Gaudet arose at about this
    time.  What happened exactly is again a subject of debate, but at some point
    Gaudet returned and words were exchanged.

[16]

Gaudet
    says the appellant called him a f coward from the other side of the creek
    and told him to come here, and that he responded by saying: hey, pa, you got
    a shotgun, Im not coming anywhere near you.  The appellant testified, on the
    other hand, that Gaudet said to him: Id kick your ass if you didnt have a
    gun, and Thorne is said to have chimed in at some point by suggesting that the
    appellant was lucky because he (Thorne) [didnt] beat up old men.  According
    to the appellant, he turned to Gaudet, held the open shotgun up, and said, putting
    it down.  He then placed the shotgun on the ground and said, if you want some,
    come on back.  In effect, he told Gaudet to bring it on.

[17]

A
    scuffle ensued.  In the end, the 60-year old appellant bested the younger
    Gaudet, who ended up on the ground.

[18]

The
    jury acquitted the appellant on the charge of assaulting Gaudet.

ANALYSIS

[19]

The
    appellant raises three issues: (i) the defence of property jury charge issue;
    (ii) the
Kienapple
and s. 7
Charter
issue; and (iii) the s.
    12
Charter
issue regarding the mandatory minimum one-year sentence
    upon conviction of the use of a firearm offence contrary to s. 85(1)(a) of the
Criminal
    Code
.

The Charge to the Jury/Defence of
    Property Issue

[20]

The
    appellants defence to the assault charge involving Thorne was that his use of
    force was justified in order to apprehend the trespassers, recover his property
    and/or defend his premises.  He relied particularly on s. 38(1) of the
Criminal
    Code
, which at the time stated:
[2]

38(1) Everyone who is in peaceable possession of personal
    property, and every one lawfully assisting him, is justified

(a)
in preventing a trespasser from taking it, or

(b)
in taking it from a trespasser who has taken it,

if he does not
    strike or cause bodily harm to the trespasser.

[21]

There
    was no element of disproportionate use of force in this defence, provided the
    accused did not strike or cause bodily harm to the trespasser.

[22]

No
    criticism is levelled against the portion of the trial judges charge to the
    jury in which he explained the elements of that defence.  The appellant argues,
    however, that in Crown counsels closing address to the jury, counsel
    incorrectly misstated the law by arguing that the defence of property was
    unavailable to the appellant because his actions in confronting Thorne while
    armed with a shotgun were unreasonable and disproportionate to Thornes act of
    trespass.  The trial judges error, the appellant submits, was that he failed
    to correct this misstatement and instead reinforced it in his instructions and
    in his answer to a question from the jurors.

[23]

I
    would not give effect to this ground of appeal.

[24]

In
    the portion of his charge setting out the elements of the s. 38 defence of
    property defence, the trial judge explained that the degree or extent of the
    force and the circumstances in which we may use it for this purpose
must
    come within the limits the law allows
 (emphasis added).  It is clear from
    the balance of his instructions on the defence of personal property that the
    limits the law [allowed] in that context involved not striking or causing
    bodily harm to the trespasser.  The trial judge said:

An accused who is in peaceable possession of his property acts
    lawfully in using force to prevent a trespasser from taking it or to get it
    back if he does not strike or cause bodily harm to the trespasser.

An accused who uses force to prevent a trespasser from taking
    his property or to get the property back,
but does not strike or cause
    bodily harm to the trespasser must be found not guilty.  He has committed no
    crime.
[Emphasis added.]

[25]

The
    appellant was relying on additional self-defence and other provisions in the
Criminal
    Code
that bring into play elements of reasonableness and proportionality
    of the force used, however.  These included the defence of real property (then s.
    41, now s. 35), the right to make a citizens arrest (s. 494) and, with respect
    to the count alleging assault against Gaudet, the defence of self-defence
    generally (s. 34 and then also s. 37).
[3]
All these were limited by the concepts of reasonableness and proportionality of
    the force used.

[26]

It
    is understandable, then, that in the Crowns closing and in the trial judges
    outline of the Crowns submissions, counsel for the Crown and the trial judge
    would focus on whether the appellants response to the situation exceeded what
    was reasonable in the circumstances.  While it would have been preferable for
    the trial judge to exclude the s. 38 defence from his general comments about
    proportionality, I am not persuaded that this flaw led to a miscarriage of
    justice.  First, I note that defence counsel did not object to the charge on
    this issue.  While the failure to object is not fatal in a criminal case, it
    does provide some measure of the egregiousness of the error in the mind of
    defence counsel, who was there and attuned to the dynamics of what was
    happening at trial.

[27]

Secondly,
    there is another basis upon which the jury may well have rejected the s. 38
    defence.  The Crown argued strongly that s. 38 did not apply because the
purpose
of the appellants conduct  quite apart from the proportionality
    of his response to the situation  did not bring him within the elements of
    that defence.  The Crown contended that the appellants purpose was not to
    prevent Thorne and Gaudet from taking his property (the fish) or to recover the
    fish from them  reasons that would have made s. 38 available.  Rather, his
    purpose in shooting the gun and accosting them was to frighten them and to teach
    them a lesson  reasons that did not fall within the scope of s. 38.

[28]

It
    was open to the jury to make this finding on the evidence.

[29]

Since
    the thrust of the appellants argument that the verdict was unreasonable is
    tied to the argument that his actions did not exceed the limits of s. 38, the
    submission that the verdict is unreasonable must fail as well.

Kienapple

[30]

It
    is a fundamental principle of criminal law that no person may be convicted twice
    for the same criminal wrong (
nemo debet bis puniri pro uno delicto
).  As
    developed in subsequent Supreme Court of Canada and appellate jurisprudence,
    the
Kienapple
rule is an expression of that principle.  The rule is that
    there ought not to be multiple convictions for the same delict, matter, or
    cause:
Kienapple
, per Laskin J. at pp. 749-50.  For
Kienapple
to apply there must be
both
a sufficiently close factual nexus
and
a sufficiently close legal nexus between the two offences in the circumstances:
    see
R. v. McGuigan
, [1982] 1 S.C.R. 284;
R. v. Krug
, [1985] 2
    S.C.R. 255;
R. v. Prince
, [1986] 2 S.C.R. 480;
R. v. Provo
,
    [1989] 2 S.C.R. 3;
R. v. Langevin
(1979), 47 C.C.C. (2d) 138 (Ont.
    C.A.); and
R. v. R.K.
(2005), 198 C.C.C. (3d) 232 (Ont. C.A.).

[31]

Whether
    there is a sufficient factual nexus is not usually the difficult enquiry.  That
    question is easily answered, generally, by determining whether the charges
    arise out of the same transaction, i.e., whether the same acts of the accused
    ground each of the charges.

[32]

The
    more difficult question in the
Kienapple
analysis is whether there is
    a sufficient legal nexus between the offences,
i.e.
, whether the offences
    constitute a single wrong or delict:
R.K.
, at paras. 31-32; and
Prince
,
    at pp. 489-90.  This requirement focuses on the presence of distinguishing
    elements between the offences rather than on the presence of common elements. 
    As Dickson C.J.C. put it in
Prince,
at pp. 498-99:

I conclude, therefore, 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.

[33]

As
    I read the authorities, the rationale for this two-fold approach is to ensure
    that the
Kienapple
principle is not too easily triggered by the simple
    finding of a factual nexus.  Parliament is entitled to abrogate the application
    of the
Kienapple
rule and to provide for the registration of more than
    one conviction where offences overlap but where the offender has been guilty of
    more than one wrong, or to impose an additional penalty for what is, in effect,
    an aggravated form of the underlying indictable offence: see
Prince
,
    at p. 498;
McGuigan
, at p. 318;
Krug,
at pp. 263-64; and
R.K.,
at paras. 52-53.  An approach that founds the application of
Kienapple
on a simple factual connection might well frustrate Parliaments legitimate
    intentions in that regard.

[34]

The
    same may be said for an approach that founds the application of
Kienapple
on a common element giving rise to a conviction as between the two offences:
    see
Prince
, at pp. 43 and 47.

The
    Provisions of the
Criminal Code

[35]

Here,
    the overlapping offences are described in ss. 265(1)(c) and 85(1)(a) of the
Criminal
    Code
, which, for purposes of the appeal, state:

265(1) A person commits an assault when

(c)
while
    openly
wearing or carrying a weapon
or an imitation thereof, he accosts
    or impedes another person

85(1) Every person commits an offence who
uses a firearm
,
    whether or not the person causes or means to cause bodily harm to any person as
    a result of using the firearm,

(a)

while committing an indictable
    offence, other than  [the exceptions do not apply here.]

The
    Factual Nexus

[36]

On
    the facts, the basis for a conviction under both provisions is made out.  The
    appellant fired the shotgun.  Whether he fired it in the air or in the
    direction of the poachers is immaterial: he used the firearm.  He ordered
    Thorne to remain, accosting and impeding him from leaving the premises; and he
    did so while carrying the gun.  Whether the gun was pointing at Thorne or was
    pointing in the air is also immaterial.

[37]

Both
    offences arise out of the same transaction and are based on the same acts of
    the accused.

The
    Legal Nexus

[38]

Whether
    the
Kienapple
rule applies depends on the outcome of the legal nexus
    analysis.  The question is whether there are sufficient additional and
    distinguishing elements between the s. 265(1)(c) assault and the s. 85(1)(a)
    use of a firearm offences to preclude the operation of the rule.  In my view,
    there are.

[39]

In
Prince
, at pp. 499-503, there is a lengthy analysis of when it can be
    said that the elements of two or more offences are substantially the same or
    alternative to one another for these purposes.  Dickson C.J.C. found the
    question to be one that defies precise answers.  He nonetheless outlined
    three different ways in which elements would be considered to be sufficiently
    correspondent to permit the application of
Kienapple
 always subject
    to the manifestation of a legislative intent to increase punishment in the
    event that two or more offences overlap (p. 500).  They are:

(i) where an element
    of one offence is simply a particularization of another element in the other offence
    (p. 500);

(ii) where there is
    more than one method embodied in more than one offence, to prove a single
    delict (p. 501); and

(iii)  where
    Parliament in effect deems a particular element to be satisfied by proof of a
    different nature, not necessarily because logic compels that conclusion, but
    because of social policy or inherent difficulties of proof (pp. 501-02).

[40]

In
R.K.
 a more recent decision of this court  Doherty J.A. summarized
    these three categories, at para. 37, as follows: [i]n essence, each presents a
    situation in which the offences charged do not describe different criminal
    wrongs, but instead describe different ways of committing the same criminal
    wrong.

[41]

Dickson
    C.J.C. also outlined three factors in
Prince
that would defeat the
    sufficient legal nexus argument.  Doherty J.A. summarized these factors at
    para. 38 of
R.K.
:

(i)  where the offences are designed
    to protect different societal interests;

(ii)  where the offences allege
    personal violence against different victims; and

(iii) where the offences proscribe
    different consequences.

[42]

After
    examining the evolution of
Kienapple
and its progeny, including the
Prince
considerations  and after agreeing with the former Chief Justices
    characterization of the legal nexus problem as one to which there can be no
    precise answer  Doherty J.A. concluded, at para. 36 of
R.K.
, that
    [t]he sufficiency of the legal nexus between offences will depend on an
    interpretation of the statutory provisions that create the offences and the
    application of those statutory definitions to the circumstances of the case.  At
    para. 39, he condensed the essence of the legal nexus inquiry into the
    following succinct proposition:

The crucial distinction for the purposes of the application of
    [the] Kienapple rule is between different wrongs and the same wrong committed
    in different ways (emphasis added).


Kienapple
Does Not Apply

[43]

Charter
considerations aside, I am not persuaded that the
Kienapple
principle
    applies to prevent multiple convictions in the circumstances of this case.  I
    say this for two principal reasons.  First, sections 265(1)(c) and 85(1)(a)
    deal with different wrongs, not the same wrong committed in different ways. 
    Secondly, by enacting s. 85 (and its predecessor, s. 83), Parliament has
    signalled its intention to displace the operation of the
Kienapple
rule in such circumstances.

Different Wrongs

[44]

First,
    there is a well-settled line of Canadian jurisprudence leading to the
    conclusion that wearing or carrying a weapon is not synonymous with the use
    of that weapon for these purposes.
McGuigan
and
Krug
are
    illustrative and deal with an analogous situation.  In both cases, the Supreme
    Court of Canada affirmed that [stealing]
while armed
with an
    offensive weapon, contrary to s. 302(d) (now s. 343(d)) of the
Criminal
    Code
does not necessarily involve
the use
of a firearm as
    contemplated in s. 83 (now s. 85(1)).  The element of use was an additional,
    distinguishing element from that required for a conviction for stealing while
    armed.  See also
R. v. Steele
, 2007 SCC 36,
[2007]
    3 S.C.R. 3
, at paras. 26-27 (carrying is not using; discharging,
    pointing, pulling out and displaying a firearm for the purposes of
    intimidation, are); and
R. v. Poisson
(1983), 8 C.C.C. (3d) 381 (Ont.
    C.A.), at p. 390 (wounding and using a firearm).

[45]

In
    both
McGuigan
and
Krug
, the Supreme Court of Canada relied
    upon the decision of this court in
Langevin,
where Martin J.A. said,
    at p. 145:

Being armed with an offensive weapon and using an offensive
    weapon are not synonymous.  A person is armed with an offensive weapon if he
    is equipped with it: see
R. v. Sloan
(1974), 19 C.C.C. (2d) 190
    [B.C.C.A.] at p. 192.  Using a firearm includes pulling out a firearm which
    the offender has upon his person and holding it in his hand to intimidate
    another: see
Rowe v. The King
(1951), 10 C.C.C. 97 at p. 101 [S.C.C.]
    [other citations omitted].
Notwithstanding that in most cases of armed
    robbery the offender will have used the weapon, nonetheless, s. 83(1) [now s.
    85(1)], by making the
use of a firearm an essential element of the offence
created by the subsection, unlike s. 122 [now s. 343(d)] which required only
    that the offender have a firearm on his person, imports a further element in
    addition to those which suffice to constitute theft while armed with a firearm
.
    [Underlining added; italics in original.]

[46]

For
    the appellant to have been convicted under s. 265(1)(c), the jury must have
    been satisfied that he accosted or impeded Mr. Thorne while openly wearing or
    carrying a weapon, thereby committing an assault as defined in that section. 
    If carrying or being armed with or equipped with a weapon, alone, is not
    enough to constitute the use a weapon, I do not see how wearing or carrying
    a weapon alone can do so, given the foregoing jurisprudence.  I see no
    practical distinction between carrying or being equipped with, or in possession
    of, a weapon and wearing or carrying that weapon.  Indeed, in
Steele
,
    at para. 26, the Supreme Court of Canada was unequivocal that it has been settled
    law, at least since
Krug
, that
carrying
a concealed weapon
    while committing an offence
is not using
a firearm within the
    meaning of s. 85(1) (emphasis added).

[47]

I
    do not think the use of the word openly in s. 265(1)(c) changes the analysis
    for these purposes.  While pulling out or displaying a weapon for purposes
    of intimidation may constitute a use of that weapon, s. 265(1)(c) does not
    require an element of intimidation to be made out.  It requires only that the person
    wearing or carrying the weapon accost (i.e., approach or address) or impede
    (i.e., obstruct or hinder) the victim.
[4]


[48]

There
    is an additional element further distinguishing the ss. 265(1)(c) and 85(1)(a)
    offences, in my view.  The former provides for the commission of the defined
    assault where the offender is wearing or carrying a weapon.  The term weapon
    is broadly defined in s. 2 of the
Criminal Code
in a manner that
    includes, but is not limited to, a firearm.  It could include a wide variety of
    other objects.  Thus, a conviction pursuant to s. 265(1)(c) does not presuppose
    the presence of a firearm as an essential element.

[49]

I
    do not think it matters for these purposes that Mr. Meszaros was undoubtedly
    convicted of the s. 265(1)(c) assault on the basis that he had, in fact, used
    the shotgun by firing it.  That circumstance simply reinforces the factual
    nexus and indicates there was a common element  use of the firearm  that was
sufficient
but
not required
for the s. 265(1)(c) conviction.

[50]

The
    same act and the common element approaches were both rejected by the
    Supreme Court of Canada in
Prince
, however.  Dickson C.J.C. observed
    that both principles were based upon the used up theory, i.e.,

[t]he principle that an act which
    constitutes an element of an offence can only be used to sustain a single conviction. 
    It is thereafter used up for the purposes of the criminal law.
[5]

[51]

Dickson
    C.J.C. declined to accept that analysis regarding either the same act or the
    common element tests: see
Prince
, at pp. 43 and 47.  At p. 47, he
    concluded:

The majority in
Coté
[6]
thus pointed in the direction of a test which focused not on the presence or
    absence of a
common element
, but on the presence or absence of
additional,
    distinguishing elements.
[Emphasis in original.]

[52]

This
    view was articulated as well in a decision of this court that pre-dated
Prince
,
R. v. Poisson
, (1983) 8 C.C.C. (3d) 381, where Lacourcière J.A. for
    the majority said, at p. 390:

As I read the precisely worded statements of Martin J.A. in
R.
    v. Langevin, supra
, and in
Allison and Dinel
[7]
,
    the invocation of [the predecessor of s. 85] is precluded only where the
    indictable offences,
by their Code definitions
,
make the use (as
    distinct from the possession) of a firearm a constituent element of the
    offence. [Emphasis added.]

[53]

In
    short, for a conviction to have been registered against Mr. Meszaros under the
    use firearm provisions of s. 85(1), it was necessary to prove that the accused
    did something beyond what is required to establish the offence under [s.
    265(1)(c)], to adopt the language of LaForest J. in
Krug
, at p.
    263.   See also
Langevin
, at p. 145.  The element of use is an
    additional and distinguishing element from that required for a conviction for
    assault under s. 265(1)(c).

[54]

The
    decision of this court in
R. v. Osbourne
(1994)
, 21 O.R. (3d) 97 also supports this analysis.  In
    that case, the accused was convicted of aggravated assault and of using a
    firearm in the commission of the aggravated assault.  He grabbed a gun from a
    police officer and shot at, but missed, the police officer.  Because his
    conduct endangered the life of the police officer, he was convicted of
    aggravated assault.  Finlayson J.A. upheld both convictions.  Notwithstanding
    that the
actus reus
of the aggravated assault offence was the firing
    of the gun  the very same conduct involved in the charge of using a firearm in
    the commission of the aggravated assault  he rejected the
Kienapple
argument.  In doing so, he accepted (at p. 102) the Crowns argument that:

the offence of aggravated assault can be committed in a
    variety of ways and with the use of different weapons, but if the perpetrator
    elects to use a firearm as a weapon, he can expect to receive an additional and
    mandatory sentence by reason of s. 85 of the Code.

[55]

Similarly,
    the offence of assault under s. 265(1)(c) can be committed in a variety of
    ways and with the use of different weapons.  Having elected to use a firearm
    to perpetrate the offence, Mr. Meszaros can expect to receive an additional
    and mandatory sentence by reason of s. 85.  To the same effect, see also
R.
    v. Switzer
(1987)
,
75 A.R. 167
(C.A.), and
R. v. Griffin
, [1996] B.C.J.
    No. 2142 (C.A.).

Kienapple
    Displaced

[56]

Secondly,
    the
Kienapple
rule does not apply here, in my view, because its
    application has been displaced by Parliament in the enactment of s. 85 (and its
    predecessor, s. 83).  In putting that provision in place, Parliament has
    signalled its intention to provide for multiple convictions for offences that
    may overlap, but that involve the use of guns.  Combatting the use of firearms
    during the commission of indictable offences is the purpose of s. 85.  Moreover,
    the fact that the commission of the indictable offence contemplated in s.
    85(1)(a) may in many cases involve the use of a firearm is not sufficient to
    attract the operation of the
Kienapple
rule if use is not an
    essential element of the predicate offence.

[57]

Martin
    J.A. emphasized these considerations in
Langevin
, at p. 146:

It is clear to me that Parliament intended by s. 83 [now s. 85]
    to repress the use of firearms in the commission of crimes
by making such
    use an offence in its own right
, and one which attracts a minimum sentence
    of one year consecutive to that imposed for the offence which such use
    accompanies.  The use of firearms in the commission of crimes is fraught with
    danger and gravely disturbing to the community, and Parliament has sought to
    protect the public from the danger and alarm caused by that use by enacting the
    present legislation.



Manifestly, the legislation is
    directed at those crimes in which firearms are likely to be used, such as
    robbery, and not at offences where they are not likely to be used, for example,
    forgery.
To construe the section as not applicable to the use of a firearm
    during the commission of the offence of theft while armed with a firearm would
    largely defeat the clear intention of Parliament
. [Emphasis added.]

[58]

These
    sentiments are as apt today as they were when they were written in 1979.  Similar
    views are expressed in
Krug
, at pp. 269-70; in
McGuigan
, at p.
    318; and in
R. v. Morrisey
, 2000 SCC 39, [2000] 2 S.C.R. 90, at para.
    17.

[59]

Parliaments
    intention that
Kienapple
should not apply to preclude multiple
    convictions in these circumstances is also reinforced by its decision to impose
    heavier penalties for aggravated forms of committing the predicate indictable
    offence through ss. 85(3) and (4) of the
Criminal Code
.  Section 85(3)
    provides for a mandatory minimum sentence of one years imprisonment for a
    first conviction under s. 85, and three years for a second or subsequent
    conviction.  Section 85(4) provides that a sentence imposed on a conviction
    under subsections 85(1) or (2) is to be served consecutively to any other
    punishment
imposed for an offence arising out of the same event or series
    of events
and to any other sentence to which the person convicted is
    subject at the time the sentence is imposed for those convictions.

[60]

As
    noted above, Parliament is entitled  subject to
Charter
considerations  to suspend the operation of the
Kienapple
principle
    in appropriate cases:
Kienapple
, at p. 753;
McGuigan
, at p. 318;
    and
R.K.
, at para. 40.  The dictates of ss. 85(3) and (4) demonstrate that
    Parliament intended to permit multiple convictions in circumstances where
    offences overlap yet do not constitute the same wrong but where the use of a
    firearm aggravates the commission of the predicate offence.  So, too, does the
    history of s. 85, first enacted in 1977  and reaffirmed in 1995  as part of a
    package of firearms regulations designed to protect the public from an
    escalating gun problem.

[61]

I
    conclude, therefore, that the
Kienapple
rule has no application to
    prevent a conviction under both ss. 265(1)(c) and 85(1)(a).  The trial judge
    did not err in declining to stay one or another of the appellants convictions.

There Is No Violation of
    Section 7 Of The
Charter

[62]

The
    appellant further submits, however, that the failure to apply
Kienapple
violates his s. 7
Charter
rights.  The argument is that the principles
    evolving out of the concept of
res judicata
in criminal matters  the
    bar against multiple prosecutions (the
autrefois
pleas) and multiple
    convictions (
Kienapple
) and the bar against the re-litigation of
    issues (issue estoppel)  are all principles of fundamental justice.  Failure
    to give effect to them contravenes s. 7.



[63]

I
    agree that these principles form part of the notion of fundamental justice, but
    I do not agree that Parliament has violated them by providing for multiple
    convictions under ss. 265(1)(c) and 85(1)(a).

[64]

Kienapple
and its cousin notions do not apply because the appellant has not been
    convicted for the same wrong twice.  As outlined above, s. 85(1)(a) imports the
    additional elements of use of a firearm that are not essential elements of a
    s. 265(1)(c) conviction for assault by accosting or impeding someone while
    wearing or carrying a weapon.

[65]

Nor
    do the two offences protect the same societal interests, a factor highlighted
    in
Prince
and
R.K.


[66]

Section
    85 seeks to deter offenders from using firearms in the commission of crimes and
    to protect the publics life, liberty and security interests from the modern
    scourge of gun-related violence.  It does so by creating a new offence of use
    of a firearm and by imposing a more severe form of punishment on those who
    commit indictable offences that may  but do not necessarily  involve the use
    of a firearm when they are committed in the more aggravated fashion.  Section
    265(1)(c) is designed to prevent interference with a persons liberty and
    security interests by creating the offence of assault where that goal is
    accomplished by accosting or impeding the person with a weapon  not
    necessarily a firearm  present but not necessarily used.  As Doherty J.A.
    observed in
R.K.
, at para. 39:

If the offences target different societal interests, different
    victims, or prohibit different consequences, it cannot be said that the
    distinctions between the offences amount to nothing more than a different way
    of committing the same wrong.

[67]

It
    is only where the distinctions between the offences amount to nothing more
    than a different way of committing the same wrong that the
Kienapple
or
res judicata
-related notions apply.

[68]

LaForest
    J. dealt directly with the fundamental justice issue in the context of s. 85,
    in
Krug
, at pp. 267-68:

The question, then, is not so much whether Parliament can
    displace the
Kienapple
principle, but whether fundamental justice
    within the meaning of s. 7 is breached by convicting an accused who has already
    committed a robbery of a second offence punishable by mandatory imprisonment
    for using, as opposed to being armed with, a firearm in committing that robbery.

That brings us squarely to what Parliament has done and why it
    has done it; not how it has done it.  Now what Parliament has done in this
    case, we saw, is in substance to create an aggravated form of robbery, to
    punish more severely an accused who uses a firearm in perpetrating that offence
    by imposing an additional penalty including a mandatory period of
    imprisonment.  Parliaments reason for so acting was its grave concern with the
    proliferation of firearm-related crime.

That this aggravated form of robbery exposes the victim to
    serious injury or death and that there has been a proliferation of such
    firearm-related offences in recent years scarcely needs demonstration.
Under
    these circumstances, the creation of such an offence does not, in my view,
    constitute a departure from fundamental justice.
[Emphasis added.]

[69]

Replacing
    the word robbery in the foregoing passage with the words a s. 265(1)(c)
    assault makes this case and
Krug
completely analogous.  There is no
    s. 7 violation, in my view.

Sentence

[70]

Given
    my conclusion that the
Kienapple
rule does not apply to bar the
    appellants conviction under s. 85 and that there is no violation of s. 7 of
    the
Charter
, and given my rejection of the other grounds raised by the
    appellant, it is necessary to deal with the appellants sentence appeal.  He
    submits, first, that the mandatory minimum sentence of one years imprisonment
    imposed by s. 85(3)(a) is unconstitutional because it violates s. 12 of the
Charter
.
     Secondly, he argues that the trial judge erred in imposing suspended sentences
    and probation instead of granting discharges on counts 1, 4, and 5.
[8]

[71]

Underlying
    these submissions is the view that Mr. Meszaros is a first offender with an
    unblemished character, who was simply trying to defend his property, as he was
    entitled to do. A period of incarceration is unnecessary to meet the goals of
    the sentencing regime, the argument goes, and therefore a mandatory minimum
    punishment of one years imprisonment constitutes cruel and unusual
    punishment as contemplated in s. 12.  Similarly, in such circumstances, the
    imposition of suspended sentences and probation instead of the grant of  discharges
    on the other counts in such circumstances is manifestly unfit.

[72]

I
    accept that Mr. Meszaros is a first offender of previously unblemished
    character; it may well be that he is the least morally blameworthy of the six
    offenders whose appeals are being argued together on the mandatory minimum
    sentences issue.  Arguably, there is an unfortunate irony in the fact that his
    more blameworthy co-appellants are to be relieved of the impact of a mandatory
    minimum punishment.  Nonetheless, his use firearm offence was serious, and I am
    not persuaded that the mandatory minimum sentence imposed by s. 85(3)(a) is
    unconstitutional.  Nor do I think there is any basis for interfering with the
    trial judges imposition of suspended sentences and probation in relation to
    Counts 1, 4, and 5.

The Mandatory Minimum
    Sentence Does Not Contravene Section 12 of the
Charter

[73]

Firearms
    are inherently dangerous.  They always present[] the ultimate threat of death
    to those in [their] presence:
R. v. Felawka
, [1993] 4 S.C.R. 199,
at
p. 211, Cory J.

[74]

The
    use of firearms in the commission of crimes, as Martin J.A. noted in
Langevin
,
    at p. 146, is fraught with danger and gravely disturbing to the community.  As
    a result, he added, Parliament has sought to protect the public from the
    danger and alarm caused by that use.  These observations are as fitting today
    as they were when made  perhaps more so.  While they were first made in the
    context of the
Kienapple
analysis, in my view they are equally apt to the
    social reality underpinning the enactment of the mandatory one-year minimum
    sentence provided for in s. 85(3)(a) of the
Criminal Code
.  For the
    reasons that follow, I am not satisfied the mandatory one-year minimum sentence
    imposed on Mr. Meszaros for use of his firearm constitutes cruel and unusual
    punishment, contrary to s. 12 of the
Charter
.

[75]

The
    principles underlying s. 12 and the analysis to be undertaken in determining whether
    a punishment is cruel and unusual have been thoroughly canvassed by Doherty
    J.A. in
R. v. Nur
, 2013 ONCA 677, a related decision being released at
    the same time as this decision.  I need not repeat that general analysis here,
    but I refer in particular to paras. 64-74 in which the question of what is
    cruel and unusual punishment is explored.  Although Doherty J.As analysis is
    made in the context of the three-year mandatory minimum sentence provided for
    in s. 95 of the
Criminal Code
, the principles underpinning that
    analysis are equally applicable to the s. 85 challenge.

[76]

For
    purposes of this appeal, I re-emphasize only the following.  To violate s. 12, the
    punishment must be grossly disproportionate, and [t]he test for determining
    whether a sentence is disproportionately long is very properly stringent and
    demanding:
Steele v. Mountain Institution
, [1990] 2 S.C.R. 1385, at
    p. 1417 (Cory J.).  Cruel and unusual punishment has been characterized as
    punishment that is so excessive as to outrage standards of decency and to be
    considered by Canadians as abhorrent and intolerable:
R. v. Ferguson
,
    2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.  Moreover, it is a punishment that
    is more than excessive or demonstrably unfit in the circumstances; it must be
    grossly disproportionate.  See
Nur
, at paras. 64-66;
R. v.
    McDonald
(1998)
, 40 O.R.
    (3d) 641 at p. 665, Rosenberg J.A.;
R. v. Goltz
, [1991] 3 S.C.R. 485, at
    pp. 498-500; and
R. v. Smith
,

[1987] 1 S.C.R. 1045, at pp.
    1072-84.

[77]

Against
    this background, the s. 12 analysis involves two enquiries: (i) whether the
    punishment would be grossly disproportionate in comparison to what would
    otherwise have been appropriate for the offender in question; and, if not, (ii)
    whether the punishment can be said to be grossly disproportionate having regard
    to what the jurisprudence refers to as other reasonable hypothetical
    circumstances.

[78]

I
    observe at the outset that Mr. Breen did not seek to strike down this
    punishment on the basis of reasonable hypotheticals.  He argued that the
    appellants case itself constituted the reasonable hypothetical  an elderly
    good citizen, never before in trouble with the law, who was simply trying to
    defend his property against intruders, as he was entitled to do.  In the
    circumstances of this offence and this offender, he submitted, the imposition
    of the minimum 12 month term of imprisonment amounts to cruel and unusual
    punishment.

[79]

Respectfully,
    I do not agree.  In my view, a mandatory minimum one-year sentence for an
    offence involving the use of a firearm cannot be said to be grossly
    disproportionate to whatever might otherwise have been an appropriate
    punishment for such an offender having regard to the general principles of
    sentencing.  Indeed, in spite of Mr. Breens disavowal of the requirement in
    these circumstances, I cannot conceive of a reasonable hypothetical involving
    the use of a firearm where a mandatory one-year sentence of imprisonment would
    be grossly disproportionate to what would otherwise be appropriate in the
    circumstances.  Such a punishment might well be excessive, or perhaps even
    manifestly unfit, but it would not be grossly disproportionate.

[80]

Section
    85, and its predecessor s. 83, have survived a number of constitutional
    attacks, although none has focussed specifically on the identical issue we face
    here  the constitutionality of the mandatory one-year minimum sentence imposed
    by s. 85(3)(a).  The Supreme Court of Canada upheld the validity of the overall
    licensing and registration provisions of the
Firearms Act
, S.C. 1995,
    c. 39, in
Reference re Firearms Act (Can.)
, 2000 SCC 31, [2000] 1
    S.C.R. 783.  In three cases, the s. 85(4) requirement (previously the s. 83(2)
    requirement) that the mandatory minimum sentence be served consecutively to the
    sentence imposed for the underlying offence has been held not to violate s. 12
    of the
Charter
: see
R. v. Brown
, [1994] 3 S.C.R. 749;
R.
    v. Spark,
[1986] O.J. No. 1001 (C.A.);
R. v. Wheatle
, [1993] O.J.
    No. 2747 (C.A.);
and
R.K.
.

[81]

In
McDonald
, this court rejected a constitutional challenge to the
    four-year minimum sentence for the offence of using a firearm while committing
    robbery, contrary to what was then s. 344(a) of the
Criminal Code.
Expressing
    his reservations about having to send a remorseful and relatively young man
    with a mental illness to the penitentiary, Rosenberg J.A. nonetheless refused
    to strike down the provision.  At p. 666, he said:

I also have reservations about putting this relatively young
    man into a penitentiary setting.  If it were open to this court to review the
    propriety of this sentence on the usual scale of appellate review as explained
    in
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, I would find a three- to four-
    year sentence to be demonstrably unfit.  However, that is not the same as gross
    disproportionality
and I am not convinced that having regard to the
    objective gravity of an offence involving the use of a firearm, even an unloaded
    one, a sentence approaching four years shocks the conscience
.  As La Forest
    J. wrote in
R. v. Lyons
, [1987] 2 S.C.R. 309 at pp. 344-45, the standard
    under s. 12 is not so exacting as to require the punishment to be perfectly
    suited to accommodate the moral nuances of every crime and every offender.
    [Emphasis added.]

[82]

These
    observations are as appropriate in the s. 85(3)(a) context as they were in
McDonald
. 
    Absent a mandatory minimum, different judges might differ on whether a period
    of incarceration was required to meet the goals of sentencing in the context of
    Mr. Meszaros offence and Mr. Meszaros as an offender.  However, use of the
    firearm is an essential requirement of the s. 85 offence  a factor that
    distinguishes s. 85 cases from the reasonable hypotheticals presented by Doherty
    J.A.s s. 95 analysis in
Nur
 and any offence involving the use of a
    firearm is high on the gravity scale. I do not think that some period of
    incarceration would be unreasonable in any such circumstance, and it would certainly
    not be demonstrably unfit.  Even if a one-year punishment were demonstrably
    unfit, that would not make it unconstitutional.  Adapting the language of
    Rosenberg J.A. above, and of Lamer J. in
Smith
, I conclude that, having
    regard to the objective gravity of an offence involving the use of a firearm,
    a sentence of one years incarceration for an assault involving the use of a
    firearm is not a punishment that is so excessive as to outrage standards of
    decency in the community.

[83]

There
    is no violation of s. 12, in my opinion.

Counts
    #1, 4, and 5

[84]

The
    appellant raised an additional ground of appeal respecting his sentence,
    arguing that the trial judge erred in failing to grant discharges for the
    assault conviction and the conviction for contravention of the storage firearm
    regulations.

[85]

I
    would not give effect to this ground of appeal either.  The trial judge made no
    error in principle in assessing the gravity of the assault, and the sentence
    imposed  a suspended sentence and a one-year probation order  was not unfit.  While
    it may have been open to him to impose a conditional or absolute discharge on
    the storage of firearms counts, I conclude that, in the overall context of this
    case, he did not err in principle in declining to do so.

DISPOSITION

[86]

For
    the foregoing reasons, I would dismiss the conviction appeal.  I would grant
    leave to appeal sentence but dismiss the sentence appeal.

R.A. Blair J.A.

I agree D. Doherty
    J.A

I agree S.T. Goudge
    J.A.

I agree E.A. Cronk
    J.A.

I agree M.H. Tulloch
    J.A.

Released: November 12, 2013





[1]

R. v. Kienapple
, [1975] 1 S.C.R. 729.



[2]
Section 38(1) of the
Criminal Code
was repealed by the
Citizens
    Arrest and Self-defence Act,
S.C. 2012, c. 9, s. 2, which came into force
    on March 10, 2013. Section 35 of the
Criminal Code
now contains the
    reformulated defence of property defence, which, among other changes, does not
    require an individual to refrain from striking or causing bodily harm to the
    trespasser, but instead requires that the act committed be reasonable in the
    circumstances.



[3]
Recent amendments came into force on March 10, 2013, in accordance with the
Citizens
    Arrest and Self-defence Act.



[4]

The Oxford English Dictionary
,

2d ed,
sub verba accost
and
impede
.



[5]
See Alan W. Mewett, Nemo bis Vexari, 16 C.L.Q. 382 (1973-74).



[6]

Coté v. the Queen
(1974), 18 C.C.C. (2d) 321 (S.C.C.).



[7]

R. v. Allison and Dinel
(1983), 5 C.C.C. (3d) 30



[8]
The assault on Thorne, contrary to s. 265(1)(c) (Count 1). Contravention of the
    regulations under the
Firearms Act
regarding the storage of the shotgun
    (Count 4); Contravention of the regulations under the
Firearms Act
regarding the storage of a different firearm (Count 5).


