M.L. v. R., 2021 NBCA 27, May 20 2021, at paragraphs 21 to 23:
Although Crown counsel agreed to substituting a stay of proceedings for sexual interference, this would be a misapplication of the law. As the Supreme Court pointed out in Friesen, sexual interference and sexual assault have identical maximum sentences, and interference is no less serious. In situations such as these, I would adopt the more “principled approach,” suggested in T.Q., to determine the relative gravity of two alternative offences.
A principled approach would consider the sentencing ranges set out by Parliament, particularly the maximum sentence, and, where one offence carries a higher maximum than the other, this would likely be determinative (Friesen, at para. 96). However, where that is not the case, the court should also consider the specificity of the offence and decide which offence best captures the impugned conduct.
In my view, this reconciles the purpose of the Kienapple principle, which is to prevent multiple convictions for the same acts thereby respecting the rule of res judicata, with society’s increased understanding of the severity of crimes committed against children (Friesen, at paras. 1, 5, 35 and 50-74). When a child is abused, the conviction should be for the crime that best encapsulates the nature of the offence committed. Kienapple should not operate so as to obfuscate the gravity of the offence. I would allow the appeal against the conviction for sexual assault.