Can a conviction lie for both sexual assault offences?

Turning to Kienapple v. The Queen, supra, Laskin J. (now C.J.C.) wrote the majority judgment. The accused was convicted of two counts: (1) rape, contrary to s. 143 of the Criminal Code and (2) unlawful carnal knowledge of a female under 14 years of age, contrary to s. 146 (1). In result it was held a conviction could not lie for both when they arose out of the same incident. The decision was not based on autrefois convict. If it had been, autrefois acquit, which is of similar effect, would prevent a conviction on the one, following even an acquittal on the other. It was based on a broader principle of res judicata. The “res” that was deemed decided here was not the offence but the factual incident. Still, even the incident was not deemed decided in the sense that an acquittal would prevent a subsequent conviction on another charge arising out of the same incident. But one conviction would prevent a second conviction in these circumstances. This selective application of res judicata was to prevent an abuse of process arising from multiple convictions. It was considered the best term available as Laskin J. said at p. 7: “In my view, the term res judicata best expresses the theory of precluding multiple convictions for the same delict, although the matter is the basis of two separate offences.”