Mr. Frederickson was issued a 24-hour roadside suspension for failure to provide a breath sample to an RCMP officer. He was subsequently charged with impaired driving and refusal to comply with a breath demand. On an application for review of the driving prohibition, an adjudicator confirmed the 90-day prohibition and Mr. Frederickson did not seek judicial review of the adjudicator’s decision. Mr. Frederickson sought a stay of proceedings on the refusal to provide a breath sample, based on the defence of res judicata. A Provincial Court judge granted a stay of proceedings. On appeal of that decision, it was held that the rule in Kienapple does not apply to the circumstances of this case. Accordingly, the stay of proceedings was set aside and the matter was remitted for trial.

Administrative law – Motor vehicles – Refusal of breathalyser test – Suspension of driver’s licence – Stay of proceedings – Res judicata – Kienapple rule

R. v. Frederickson, [2002] B.C.J. No. 2895, British Columbia Supreme Court, December 23, 2002, Ross J.

This was an appeal from a decision of a Provincial Court judge to enter a stay of proceedings on the basis of the plea of res judicata with respect to a prosecution for failure to provide a breath sample on demand of a peace officer contrary to s. 254 of the Criminal Code. The sole issue on the appeal was whether the operation of the principle in Kienapple v, The Queen (1974), 15 C.C.C. (2d) 524 (S.C.C.), precludes a criminal prosecution pursuant to s. 254 of the Criminal Code in circumstances in which the accused person has been issued a Notice of Prohibition pursuant to s. 94.1 of the Motor Vehicle Act, R.S.B.C. 1996, c.319, and has had that driving prohibition sustained on review by the adjudicator pursuant to s. 94.6 of the Act.

Mr. Frederickson was pulled over by an RCMP officer who noticed signs of impairment and requested a breath sample. Mr. Fredrickson was taken into custody, processed and released on a promise to appear in Campbell River Provincial Court. The RCMP issued a 24-hour roadside suspension to Mr. Frederickson pursuant to s. 215 of the Motor Vehicle Act, and served him with a Superintendent’s Notice of Driving Prohibition, pursuant to s. 94.1 of the Act.

Mr. Frederickson was charged with impaired driving, contrary to s. 253(a) of the Criminal Code, and refusing to comply with a breath demand, contrary to s. 254(5) of the Code.

Mr. Frederickson filed an application for review of the driving prohibition imposed under s. 94.1 of the Act. The adjudicator confirmed the 90-day prohibition, and Mr. Frederickson did not seek judicial review of the adjudicator’s decision.

Mr. Frederickson sought a stay of proceedings on the refusal to provide a breath sample, based on the defence of res judicata. In Campbell River Provincial Court, a stay of proceedings was granted. The judge held at para. 16 of his reasons:

The essence of what occurred under the Motor Vehicle Act is that the Crown succeeded in having the defendant punished by a competent tribunal for failing to comply with a demand under section 254 of the Criminal Code. The Crown cannot now be heard to ask for another chance to punish the defendant on the same facts with, I might add, significantly greater penalties than have already been suffered by the defendant. To permit such an attempt would offend a principle fundamental to the common law.

On appeal to a Supreme Court judge, it was held that the rule in Kienapple does not apply to the circumstances of this case. Accordingly, the stay of proceedings was set aside and the matter was remitted for trial.

The rule in Kienapple was stated thus by Madam Justice McLachlin, as she then was, in R. v. Van Rassel, [1990] 1 S.C.R. 225 at para. 27:

This rule, which is said to be based on the broader principle of res judicata, applies when two separate charges are based on the same delict or cause. It prescribes that a conviction cannot be registered on the second charge if there has been a conviction of the first charge. The same delict or cause is involved where there is no additional and distinguishing element contained in the offence that goes to guilt: R. v. Prince, [1986] 2 S.C.R. 480.

The court held that the rule in Kienapple only arises with respect to prosecutions in a public court of competent jurisdiction. There must be an offence in order for the rule to be engaged. In this case, the provisions of the Act create no offence and the adjudicator is not a court of competent jurisdiction.

The same act by an individual may have more than one aspect and give rise to more than one legal consequence. The rule in Kienapple was not intended, and has not been interpreted to be broadly applied so as to constitute a blanket prohibition against different proceedings arising from the same act.

With respect to the driving prohibition, it was held that such prohibition has been found to constitute an administrative sanction, not a criminal penalty. Civil consequences can be imposed with respect to conduct that is the subject of criminal prosecution without offending the rule in Kienapple. The purpose and effect of the driving prohibition is not for this purpose a punishment or penal sanction.

The purpose of a criminal sanction is to call the individual to account for the breach of the duty he or she owes to society. The purpose and effect of the driving prohibition is the protection of the public interest, which is accomplished by deterring persons from driving while impaired by alcohol. This purpose and effect is distinct from that of a criminal sanction. Accordingly, the prohibition is not punishment for purposes of the rule in Kienapple.

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