



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Adjei, 2013 ONCA 512

DATE: 20130812

DOCKET: C54638

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richwood Adjei

Appellant

James Stribopoulos for the appellant

Marcella Henschel, for the respondent

Heard: April 22, 2013

On appeal from convictions entered by Justice Edward P.
    Belobaba of the Superior Court of Justice, sitting without a jury, on August
    31, 2011, with reasons reported at 2011 ONSC 3372.

Watt J.A.:

[1]

When Stacey Adjei died in hospital of complications from sickle cell
    disease, her brothers, Charles and Richwood, were with her. Her half-brother,
    Clifford, was not there.

[2]

Charles and Richwood were angry at Clifford for not being at the
    hospital when their sister died. Charles phoned Clifford to tell him not to
    join the other family members at their mothers house at 38 Driftwood Avenue to
    mourn their loss.

[3]

Clifford ignored the warning, and, with his girlfriend, Dora, drove to
    his mothers townhouse to join his brothers and other family members and
    friends. As he approached his mothers house, Clifford called 911 and reported
    that Richwood had a gun.

[4]

When the police arrived at Driftwood Avenue, they saw the Adjei brothers
    arguing in the courtyard outside the townhouse. The officers also saw Stephen Amofah,
    a friend of Charles Adjei, leave the townhouse carrying a black duffle bag with
    a Hockey Canada logo on it. The bag seemed to have something long and heavy in
    it. When Amofah saw the police, he took the bag back into the townhouse.

[5]

The officers were invited into the townhouse. They found the black bag
    with the Hockey Canada logo on top of the washing machine. Inside the bag
    police found a sawed-off Winchester shotgun, an M-1 Carbine rifle, and a high
    capacity magazine suitable for use in the rifle.

[6]

The trial judge found Richwood Adjei (the appellant) guilty of several
    offences arising out of the possession of the guns and ammunition, including
    breaches of prior probation and weapons prohibition orders. The appellant says
    his convictions should be set aside because the trial judge wrongly admitted a
    hearsay statement of a Crown witness, wrongly rejected his (the appellants)
    testimony because he exercised his right to silence prior to trial, and, in any
    event, entered some convictions in violation of the prohibition against
    multiple convictions.

[7]

As these reasons explain, I would dismiss the appeal except for the entry
    of conditional stays on some counts in the indictment.

THE BACKGROUND FACTS

[8]

The grounds of appeal advanced do not require an elaborate recitation of
    the evidence adduced at trial. A brief overview will suffice, with greater
    detail added where necessary in connection with the specific complaints of
    error.

[9]

The contested ground at trial had to do with whether the Crown had
    proven that the appellant had knowledge of and control over, thus was in
    possession of, the guns and ammunition found in the duffle bag. No fingerprints
    were found on the firearms, the high capacity magazine, ammunition, or the duffle
    bag in which they were found.

The Hospital Visits

[10]

Early
    in the morning of February 10, 2010, Clifford Adjei and his girlfriend, Dora,
    visited Cliffords gravely ill sister, Stacey, at the hospital. The doctor told
    Clifford that he should have his mother return from Ghana as soon as possible.
    Clifford and Dora left the hospital to make arrangements to send money to
    Cliffords mother so that she could return home. Clifford was required to
    report to a drug and alcohol rehab program later that morning. While he was
    complying with his reporting obligations, Stacey died.

The Telephone Argument

[11]

The
    appellant and his brother, Charles, were with Stacey when she died. Charles was
    very annoyed that Clifford, as the eldest brother, had been absent for her
    passing. Charles telephoned Clifford and warned him not to return to their
    mothers house if he (Clifford) knew what was good for him. Charles made it
    clear that he and the appellant did not want to see Clifford at their mothers
    home.

The 911 Call

[12]

As
    he and Dora approached his mothers townhouse at 38 Driftwood Avenue, Clifford
    called 911 to report that the appellant had a big, big, big, big gun in the
    pocket of his pants. The call, which includes the sounds of an ongoing
    confrontation, was admitted as evidence at trial as part of the
res gestae
.
    Its admission is not challenged here.

The Police Response

[13]

The
    police officers who responded to the 911 call saw Stephen Amofah hurry out of
    the townhouse carrying the black bag with the Hockey Canada logo. When Amofah
    made eye contact with the officers, he walked back inside the townhouse. The
    appellant remained outside.

The Finding of the Guns and the Ammunition

[14]

In
    the duffle bag on top of the washing machine on the main floor of the townhouse,
    police found a sawed-off 12 gauge Winchester pump shotgun loaded with one round
    of ammunition, along with a cut-down M-1 semi-automatic rifle and a high
    capacity magazine suitable for use in the rifle. The rifle was not loaded. The
    magazine was empty.

The Arrests

[15]

Police
    arrested the appellant and Stephen Amofah. Each was charged with firearms and
    related offences. Each was taken to 31 Division police station. Amofah,
    Clifford, and his girlfriend, Dora, gave videotaped statements.

The Case for the Crown at Trial

[16]

To
    establish the contested issues of fact at trial, the Crown called Clifford, his
    girlfriend Dora, and Stephen Amofah. Each gave evidence that contradicted what
    they had told police in their video statements. The trial Crown sought to have
    their video statements admitted under the principled exception to the hearsay
    rule. Recantation of the statements established necessity. The trial judge held
    that the statements were reliable and admitted them as evidence. The
    statements, especially that of Stephen Amofah, became the centrepiece of the
    case for the Crown.

The Defence Case at Trial

[17]

The
    appellant gave evidence at trial. He explained that, at his mothers request,
    he moved out of her townhouse at the end of November, 2009 before his mother
    left for Ghana. He denied having any guns or any knowledge about the guns found
    by police.

[18]

The
    appellant acknowledged that he anticipated trouble with Cliffords arrival at
    their mothers townhouse. He removed a sledgehammer, about 18 inches or two feet
    long and weighing between 20 and 35 pounds, from a storage closet and put it
    down in the front of his pants. When he heard somebody mention that Clifford
    had called the police, he threw the sledgehammer away onto the roof of an
    adjacent townhouse.

[19]

The
    appellants mother confirmed the presence in the house of a long, thin hammer,
    about 18-22 inches in length. She described it as not very heavy. She had
    never seen a duffle bag.

THE GROUNDS OF APPEAL

[20]

The
    appellant advances three grounds of appeal against conviction. As I would
    paraphrase those grounds, they are that the trial judge erred:


I.

in admitting the videotaped statement of Stephen Amofah under the principled
    exception to the hearsay rule;


II.

in rejecting the testimony of the appellant, in part at least, because
    the appellant had exercised his pre-trial right to silence and had not provided
    police with the exculpatory version of events he advanced at trial; and


III.

in failing to enter conditional stays on several counts as a result of
    the application of the rule against multiple convictions for the same delict or
    matter.

Ground #1: The Admissibility of Amofahs Out-of-Court Statement

[21]

The
    first and principal ground of appeal requires a brief review of the context in
    which Amofahs videotaped statement came to be proffered at trial as well as
    some details about the statement itself.

The Procedural Context

[22]

Stephen
    Amofah testified as a witness for the Crown. The answers he gave in
    examination-in-chief, in particular his failure to adhere to the substance of
    what he had said in his post-arrest videotaped statement, prompted Crown
    counsel to apply for leave under s. 9(2) of the
Canada Evidence Act
to
    cross-examine him on the statement. The trial judge granted leave. Thereafter,
    the Crown applied to have the video statement admitted under the principled
    exception to the hearsay rule.

The Videotaped Statement

[23]

Stephen
    Amofah, whom police had seen carrying the bag in which the guns, ammunition,
    and high capacity magazine were later found, was arrested at the same time as
    the appellant and charged with unlawful possession of firearms. He was advised of
    the reasons for his arrest and read his s. 10(b)
Charter
rights by the
    uniformed officers who had arrested him. He did not want to call a lawyer.

[24]

Stephen
    Amofah was taken to 31 Division for further investigation. During a brief 12
    minute conversation with investigating officers, about which the officers made
    notes, Amofah was again told the reasons for his arrest and re-advised of his
    right to counsel. He declined to call a lawyer. He said he did not need a
    lawyer because he had done nothing wrong. The officers read Amofah the primary
    and secondary police caution and he confirmed his understanding of both. An
    officer asked whether he consented to speak with them on video. Amofah
    responded: Well, you said for me to clear my name, thats what I had to do
    right?

[25]

As
    the videotaped interview began, investigators reminded Amofah of the reasons
    for his arrest and of his right to retain and instruct counsel without delay.
    Once again, Amofah declined to contact a lawyer. The investigators reiterated
    both the primary and secondary caution and confirmed Amofahs understanding of
    them. He understood that he was not required to speak to the officers, but that
    if he did so, whatever he said would be recorded and could be given in
    evidence.

[26]

Stephen
    Amofahs statement was not under oath, nor was he warned about the consequences
    of providing a false statement. The statement was videotaped in its entirety. There
    was some brief interaction between Amofah and the police before beginning the
    recording, but this was introductory and not substantive in nature.

The Ruling of the Trial Judge

[27]

The
    trial judge admitted Amofahs videotaped statement under the principled
    exception to the hearsay rule. Necessity was not an issue: Amofah had recanted
    when giving evidence. The trial judge was also satisfied, despite the absence
    of an oath and warning about the consequences of making a false statement, that
    the statement satisfied the reliability requirement. The statement was
    videotaped in its entirety. Counsel for the appellant at trial acknowledged
    that the absence of an oath or affirmation did not undermine the admissibility
    of the statement. Stephen Amofah testified at trial. Defence counsel had a
    full opportunity to cross-examine him on the statement and at large.

The Arguments on Appeal

[28]

For
    the appellant, Mr. Stribopoulos submits that the trial judge erred in his
    approach to the admissibility of the videotaped statement under the principled
    exception to the hearsay rule. In accordance with the majority judgment in
R.
    v. Trieu
(2005) 74 O.R. (3d) 481 (C.A.), the trial judge considered that the
    absence of an oath and warning was of only marginal significance in the
    assessment of the statements threshold reliability because the statement was
    videotaped in its entirety and Amofah could be fully cross-examined.

[29]

Mr.
    Stribopoulos says that the majority holding in
Trieu
has been
    overtaken by the subsequent judgment of the Supreme Court of Canada in
R.
    v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787. He submits that
Khelawon
re-affirmed the earlier decision in
R. v. B.(K.G.)
, [1993] 1 S.C.R.
    740 including all three requirements that
B.(K.G.)
endorsed as
    essential before a prior statement of a witness may be admitted for substantive
    use under the principled exception to the hearsay rule. Absent satisfaction of
    the requirements in
B.(K.G.)
, the trial judge was required to look
    beyond the circumstances surrounding the making of the statement and conduct a
    more global reliability assessment directed at the specific frailties in this
    case. Not only did the trial judge fail to conduct such an assessment, but he considered
    Amofahs motive to fabricate as relevant to the ultimate reliability of the
    statement. Under
Khelawon
, this was wrong.

[30]

For
    the respondent, Ms. Henschel begins with a reminder that under the principled
    exception to the hearsay rule, a party may satisfy the reliability requirement
    in either of two ways, neither of which excludes consideration of the other.
    Sometimes, the circumstances in which the statement was made alleviate any real
    concern about the truth of the statement. On other occasions, the hearsay
    nature of the statement causes no real concern because its truth and accuracy
    can nonetheless be sufficiently tested before the trier of fact.

[31]

Ms.
    Henschel says that the procedural requirements of
B.(K.G.)
permit the
    truth and accuracy of the prior statement to be sufficiently tested. The other
    requirements of
B.(K.G.)
, as that decision and others coming after it
    plainly state, are not strict conditions precedent to admissibility or
    intolerant of other indicia of reliability. In this case, Amofah was under
    arrest, apprised of the reasons for his arrest and of his right to retain and
    instruct counsel without delay. He knew that the statement was to be recorded
    and could be introduced in evidence. These factors impressed upon him the
    importance of telling the truth and amounted to the functional equivalent of an
    oath and warning. His interest in exculpating himself related to the ultimate
    reliability of the statement and was not a factor relevant for consideration on
    threshold reliability and admissibility. No further analysis of the likely
    truth of the statement was required under
Khelawon
.

The Governing Principles

[32]

The
    principles that control determination of this ground of appeal are those
    concerned with satisfaction of the reliability requirement of the principled
    exception to the hearsay rule. The companion requirement of necessity, counsel
    agree, has been satisfied by Amofahs recantation of his out-of-court
    statement:
B.(K.G.)
, at pp. 796-797, and 799;
Khelawon
, at
    para. 75.

[33]

The
    reliability requirement of the principled exception may be satisfied in either
    or both of two non-exclusive ways. There may be no real concern about the truth
    of the hearsay statement because of the circumstances in which the statement
    came about:
Khelawon
, at para. 62. A second way of fulfilling the
    reliability requirement is for the proponent to show that no real concern
    arises from the hearsay nature of the statement because, in the circumstances,
    the truth and accuracy of the statement can nonetheless be sufficiently tested:
Khelawon
, at para. 63.

[34]

The
    circumstances in which a prior statement was made can provide sufficient
    guaranties of its trustworthiness if:


i.

the statement was made under oath or solemn affirmation, following a warning
    about the existence of sanctions (for making a false statement) and the
    significance of the oath or affirmation;


ii.

the statement is videotaped in its entirety; and


iii.

the opposing party has a full opportunity to cross-examine the witness
    about the statement.

B.(K.G.)
, at para. 104. But these
    circumstances are not conditions precedent that must be met in order for the
    reliability requirement to be satisfied. Other circumstances may serve, for
    example, as a surrogate or proxy for the oath:
B.(K.G.)
, at para. 96;
Khelawon
,
    at para. 45;
R. v. U. (F.J.)
, [1995] 3 S.C.R. 764, at para. 40; and
R.
    v. Youvarajah
, 2013 SCC 41, at para. 30.

[35]

Some
    authorities have considered whether the reliability requirement has been met in
    the case of recanting witnesses where prior statements have been videotaped,
    but are unsworn, and the witness has been available for full cross-examination
    before the trier of fact.

[36]

In
B.(K.G.)
, the court recognized that the oath was not an absolute requirement
    for a finding of reliability:
B.(K.G.)
, at para. 95. Situations may
    arise where a judge concludes that, despite the absence of an oath, the prior
    statement is reliable:
B.(K.G.)
, at para. 96. The other circumstances
    must be sufficient to impress upon the witness the importance of telling the
    truth:
B.(K.G.)
, at paras. 96 and 104.

[37]

In
U.(F.J.)
, the prior statement was not made under oath and not
    videotaped, yet was held to be reliable because the contents of the statement were
    strikingly similar to those contained in an independent statement of the
    declarants father, the appellant. The only likely explanation was that both
    were telling the truth, thus the reliability requirement had been met:
Khelawon
,
    at para. 86.

[38]

In
Trieu
, a majority of this court considered that in combination, a
    videotape of the recanting witness statement coupled with the opportunity for
    full cross-examination of the witness, went virtually all of the way to
    providing the trier of fact with the tools necessary to adequately assess
    reliability:
Trieu
, at para. 76. In the circumstances, the oath carried
    only a modest burden in the assessment of threshold reliability:
Trieu
,
    at para. 78.

[39]

The
Trieu
majority considered that two types of evidence could constitute
    appropriate substitutes for an oath administered at the outset of the
    out-of-court statement:


i.

evidence from which it can reasonably be inferred that, when the
    statement was made, the declarant appreciated the solemnity of the occasion and
    the importance of telling the truth; and


ii.

external evidence, which is, at once, itself reliable and tends to
    confirm, in a meaningful way, the reliability of the out-of-court statements.

Trieu
, at para. 85. Among the relevant
    factors in
Trieu
were the fact that the witness had been charged with
    an offence, cautioned, and understood his
Charter
rights and that the
    statement, in material respects, was similar to the statement of another.
    Striking similarity was not required:
Trieu
, at paras. 90 and 121.

[40]

In
    the end, for out-of-court statements of non-accused witnesses to be admissible
    as evidence of the truth of their contents, the
B.(K.G.)
indicia are
    not the exclusive means of establishing threshold reliability. The threshold
    reliability of a non-accused witness prior inconsistent statement may be
    established by:


i.

the presence of adequate substitutes for testing truth and accuracy
    (procedural reliability); and


ii.

sufficient circumstantial guaranties of reliability or inherent
    trustworthiness (substantive reliability).

Khelawon
, at paras. 61-63;
R. v. Youvarajah
,
    2013 SCC 41, at para. 30. These two principal ways of establishing threshold
    reliability are
not
mutually exclusive:
R. v. Devine
, 2008
    SCC 36, [2008] 2 S.C.R. 283, at para. 22;
Youvarajah
, at para. 30.

The Principles Applied

[41]

For
    reasons that I will develop, I would not give effect to this ground of appeal.

[42]

First,
    Amofahs out-of-court statement was videotaped in its entirety. Thus, the
    several indicia of credibility and reliability available to the judge as a
    trier of fact where a witness testifies at trial were available equally in
    connection with the out-of-court statement. The reproduction of the statement
    and the video recording eliminated the danger of inaccurate recounting, an
    important factor underlying the rule excluding hearsay evidence.

[43]

Second,
    Stephen Amofah testified at trial. Trial counsel had full opportunity to
    cross-examine Amofah, an opportunity not circumscribed by any claimed memory deficits
    or assertions of privilege. The availability of the declarant for
    cross-examination goes a long way to satisfy the requirement of adequate
    substitutes for establishing threshold reliability:
Khelawon
, at para.
    66. Availability of the non-accused witness for cross-examination is the most
    important factor supporting the admissibility of a prior inconsistent statement
    of that witness for the truth of its contents:
R. v. Couture
, 2007 SCC
    28, [2007] 2 S.C.R. 517, at paras. 92 and 95;
Youvarajah
, at para. 35.

[44]

Third,
    the absence of an oath and warning is
not
fatal to the admissibility
    of the out-of-court statement. The
B.(K.G.)
indicia, which include an
    oath and warning about sanctions for untruthfulness is one, are neither
    conditions precedent to admissibility nor are they exclusive means of
    establishing threshold reliability:
Khelawon
, at paras. 61-63;
Youvarajah
,
    at para. 30. Other circumstantial guaranties may suffice:
B.(K.G.)
, at
    para. 104.

[45]

Fourth,
    although the witness in this case was not under oath and had not been warned
    about the consequences of untruthfulness, some circumstantial guarantees of
    reliability were present when the statement was made. Amofah was under arrest
    for unlawful possession of firearms, a serious offence. He had been told repeatedly
    about the reasons for his arrest and about his right to retain and instruct
    counsel without delay. He knew he did not have to speak to the police. He knew
    that whatever he said would be completely recorded and could be used as
    evidence. The imperative of speaking the truth and the consequences of lying
    could scarcely have been lost on him.

[46]

Fifth,
    in its material features, Amofahs statement was consistent with the contents
    of Clifford Adjeis 911 call of which Amofah could have had no knowledge when
    he gave his statement.

[47]

Finally,
    trial counsel for the appellant acknowledged that the absence of an oath
per
    se
did not undermine the admissibility of Stephen Amofahs out-of-court
    statement as evidence of the truth of its contents. Rather, counsel submits
    that a global reliability assessment was required prior to admitting Amofahs
    statement. For reasons I have given, I disagree and would not accede to this
    ground of appeal.

Ground #2: Pre-trial Silence as a Credibility Factor

[48]

The
    second ground of appeal alleges that the trial judge improperly used the
    appellants pre-trial silence as a basis upon which to reject the evidence the
    appellant gave at trial. To furnish the context essential for a consideration
    of this ground of appeal, it is helpful to begin with a brief reference to the
    appellants evidence at trial and the reasons of the trial judge before turning
    to the principles that inform the decision on this ground of appeal.

The Appellants Version

[49]

The
    appellant denied knowledge of or control over the guns, ammunition, and high
    capacity magazine found in the duffle bag. He acknowledged that he had put a
    long-handled, heavy-headed object down the front of his pants as Clifford
    arrived. He explained that the object was a sledgehammer, not a gun. He started
    to pull it out to hit Clifford because he was fed up with the ongoing argument
    between Charles and Clifford.

The Reasons of the Trial Judge

[50]

The
    trial judge applied the principles of
R. v. W.(D.)
, [1991] 1 S.C.R.
    742 to the evidence of the appellant. He rejected the appellants testimony
    about the sledgehammer because it (the testimony) was undermined by the
    numerous falsehoods scattered throughout his testimony. After enumerating
    seven specific examples of these falsehoods, the trial judge concluded:

In sum, and for the reasons set out above, I do not accept
    Richwoods evidence that he had a sledgehammer in his pants. The first time
    that this explanation was attempted was before me at trial. In my view, this
    was a complete fabrication, invented by the accused, and supported in part by a
    well-meaning mother, to avoid a firearms conviction.

[51]

The
    trial judge also rejected the appellants evidence because of the strength of
    the evidence introduced in the three police statements admitted under the
    principled exception to the hearsay rule. He considered these statements to be
    accurate and truthful.

The Arguments on Appeal

[52]

For
    the appellant, Mr. Stribopoulos contends that the trial judge erred in law when
    he rejected the appellants evidence on the basis that the appellant had never
    before disclosed the explanation (a sledgehammer, not a gun) advanced at trial.

[53]

Mr.
    Stribopoulos says that the appellant, as a person charged with an offence, had
    a constitutionally-protected right to remain silent during the police
    investigation and at trial. To link rejection of the appellants testimony to
    his failure to speak with or disclose his explanation to the police is to
    attach evidentiary significance to the exercise of a constitutional right, a
    chain of reasoning that is not available to a trier of fact and constitutes an
    error in law.

[54]

For
    the respondent, Ms. Henschel takes the position that the passage the appellant
    impugns as an impermissible use of the exercise of a constitutional right
    formed no part of the trial judges reasons for rejecting the appellants
    testimony. The rejection was based on the several falsehoods identified by the
    trial judge and the overwhelming nature of the case revealed in the prior
    statements of the three recanting witnesses. This observation by the trial
    judge was unfortunate, but did not taint his credibility findings or his
    ultimate determination that the Crown had proven its case beyond a reasonable
    doubt.

The Governing Principles

[55]

The
    governing principles are uncontroversial.

[56]

First,
    a person suspected of or charged with a crime has a right to silence that she
    or he may exercise in the investigative stages of proceedings:
R. v. Chambers
,
    [1990] 2 S.C.R. 1293, at p. 1315. This right to silence is a basic tenet of our
    legal system and thus falls within the sweep of s. 7 of the
Charter
:
Chambers
,
    at p. 1316;
R. v. Hebert
, [1990] 2 S.C.R. 151, at p. 161.

[57]

Second,
    it is not open to a trier of fact to reject an accuseds evidence on the basis
    that she or he remained silent at the investigative stage of proceedings:
R.
    v. Rohde
, 2009 ONCA 463, 246 C.C.C. (3d) 18, at para. 18;
R. v. Palmer
,
    2008 ONCA 797, at para. 9; and
R. v. Rivera
, 2011 ONCA 225, 104 O.R.
    (3d) 561, at paras. 113-114.

The Principles Applied

[58]

I
    would reject this ground of appeal. Reading the reasons of the trial judge as a
    whole, I am simply not persuaded that the trial judge rejected the appellants
    testimony on the basis of the appellants pre-trial silence.

[59]

The
    trial judge rejected the appellants testimony on two grounds:


i.

the myriad inconsistencies and falsehoods in the appellants testimony;
    and


ii.

the cumulative force of the out-of-court statements of the three Crown
    witnesses whose statements were admitted for their truth under the principled
    exception to the hearsay rule.

[60]

Both
    of these grounds for rejecting the appellants testimony were open to the trial
    judge. Neither reflects legal error. The structure of the trial judges reasons
    makes it plain that these grounds constituted the true basis for rejection of
    the appellants testimony. Nowhere in closing submissions was it suggested by
    anybody that the trial judge should draw an adverse inference against the
    appellant because of his pre-trial silence.

Ground #3: The
Kienapple
Principle

[61]

The
    final ground of appeal invokes the decision in
R. v. Kienapple
, [1975]
    1 S.C.R. 729, and the principle that bars multiple convictions for the same
    delict. The respondent acknowledges the application of the rule, but would
    limit the scope of its application in this case.

The Relevant Counts

[62]

The
    indictment on which the appellant was tried included 17 counts. The trial judge
    entered convictions on all counts. No conditional stays were sought or entered.

[63]

Counts
    5 and 6 alleged unlawful possession of the same firearm, a 12 gauge Winchester
    shotgun, without a licence. Count 5 alleged a breach of s.  92(1) of the
Criminal
    Code
, and count 6 a breach of s. 91(1).

[64]

Counts
    7 and 15 alleged a breach of the same probation order. The term breached was a
    prohibition against carriage or possession of weapons as defined by the
Criminal
    Code
. Counts 9 and 16 charged failures to comply with the same probation
    order by the same conduct  failure to keep the peace and be of good behaviour.

[65]

Counts
    8 and 14 alleged identical breaches of a firearms prohibition by possession of
    a firearm. Neither count particularized the firearm of which the appellant was
    alleged to be in possession in breach of the prohibition.

The Arguments on Appeal

[66]

For
    the appellant, Mr. Stribopoulos submits that a conditional stay should be
    entered on one count of each pairing. Where the offences in the pairing differ
    in gravity, as they do in counts 5 and 6, Mr. Stribopoulos says that the stay
    should be entered on the offence of lesser gravity. The necessary factual and
    legal nexus have been established.

[67]

For
    the respondent, Ms. Henschel acknowledges that the rule the appellant invokes
    precludes convictions for multiple offences where both a factual and legal
    nexus connects those offences. To establish a factual nexus, the appellant must
    demonstrate that both charges arise out of the same transaction. To establish a
    legal nexus, Ms. Henschel says, the appellant must show that both offences
    constitute a single wrong or delict.

[68]

Ms.
    Henschel accepts that where the same transaction gives rise to two or more
    offences with the same or substantially the same elements, and an accused is
    found guilty of more than one, a conditional stay should be entered on the less
    serious count and the conviction on the more serious count left undisturbed.
    She concedes that the rule requires entry of a conditional stay on count 6, and
    on one of counts 9 and 16 and counts 11 and 12. The rule, she says, cannot be
    invoked in connection with counts 7 and 15, or 8 and 14, because the counts do
    not relate to the same delict: two weapons were involved and the possession of
    each was a separate and distinct breach of the governing orders.

The Governing Principles

[69]

Under
Kienapple
, the relevant inquiry when an accused invokes the rule
    against multiple convictions is whether the same cause or matter (rather than
    the same offence) is comprehended by two or more offences:
Kienapple
, at
    p. 750. Where two or more offences contain the same or substantially the same
    elements, application of the rule is triggered:
Kienapple
, at p. 751.

[70]

The
    decision in
Kienapple
does
not
prohibit a multiplicity of
    convictions, each in respect of a different factual incident:
R. v. Prince
,
    [1986] 2 S.C.R. 480, at p. 491. The rule does, however, bar multiple
    convictions for offences that arise from the same transaction:
Prince
,
    at p. 491. The factual nexus requirement is satisfied where it is the same act
    of the accused that grounds each of the charges:
Prince
, at p. 492.
    Where one act ends and another begins is often not easy to define and requires evaluation
    on a case-by-case basis:
Prince
, at p. 492.

[71]

Where
    a sufficient factual nexus between the charges is established, it becomes
    necessary to determine whether there is an adequate relationship between the
    offences themselves:
Prince
, at p. 493. This requirement of a legal
    nexus will only be satisfied if there is no additional and distinguishing
    element that goes to guilt contained in the offence that the accused seeks to
    preclude under the rule:
Prince
, at pp. 498-499. Where the offences
    are of unequal gravity, however, the rule against multiple convictions may bar
    a conviction for a lesser offence, notwithstanding that there are additional
    elements in the greater offence for which a conviction has been registered,
    provided that there are no additional elements in the lesser offence:
Prince
,
    at p. 499.

[72]

Sometimes,
    an element of an offence sufficiently corresponds to another element such that
    it cannot be regarded as additional or distinct. One element may be a
    particularization of another element, and thus may not be considered as a
    distinguishing feature that renders the
Kienapple
rule inapplicable:
Prince
,
    at p. 500. Elements may correspond to one another if there is more than one
    method, enumerated in more than one offence, to prove a single delict:
Prince
,
    at p. 501. A sufficient correspondence between elements may exist to sustain
    the application of
Kienapple
when Parliament, in effect, deems a
    particular element to be satisfied by proof of a different nature:
Prince
,
    at p. 501.

The Principles Applied

[73]

I
    would give effect to this ground of appeal and enter conditional stays on one
    count of each pairing described above.

[74]

Ms.
    Henschel acknowledges the application of the principle requires entry of a
    conditional stay on counts 6 and 12, and on one of counts 9 and 16. I agree.

[75]

The
    offences charged in counts 5 and 6 and in counts 11 and 12 contain
    substantially the same elements and arise out of the same transaction. It
    follows from
Prince
that a conditional stay should be entered on the
    counts that are less serious: counts 6 and 12.

[76]

Counts
    9 and 16 are exact duplicates. Each alleges a failure to comply with the same
    term of the same probation order, at the same time, and in the same place:
    failure to keep the peace and be of good behaviour. A conditional stay should
    be entered on count 16.

[77]

Counts
    7 and 15 are in identical terms. Each alleges a failure to comply with the same
    condition, in the same probation order, at the same time, and in the same
    place. The condition breached is alleged to be not carry or possess weapons as
    defined by the
Criminal Code
. Neither count particularizes the weapon
    possessed in contravention of the prohibition in the probation order. The same
    may be said of counts 8 and 14, except that the underlying order breached in
    connection with those counts is a firearms prohibition under s. 110 of the
Criminal
    Code
.

[78]

In
    the absence of particularization of the weapon or firearm in the counts
    charging these offences, I can see no basis upon which all four convictions
    should stand. The same conduct grounds each charge. The firearms were found together
    in the same bag. The offences in each pair are identical and the allegations of
    each in identical terms. I would enter conditional stays of the convictions on
    counts 14 and 15 and leave the convictions on counts 7 and 8 undisturbed.

CONCLUSION

[79]

For
    these reasons, I would dismiss the appeal from the convictions recorded at
    trial except to the extent of ordering that conditional stays be entered on the
    convictions on counts 6, 12, 14, 15, and 16.

Released:

AUG 12 2013                                   David
    Watt J.A.

MR                                                  I
    agree M. Rosenberg J.A.

I
    agree S.E. Pepall J.A.


