Lesser Included Offences

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 95296)

General Principles

A judge must consider, where the evidence does not make out a particular charged offence, whether the accepted evidence makes out an "included" offence. That is, a secondary offence which underlies the actual charge.

A lesser included offence must be "embraced" by the primary offence.[1]

This authority comes from s. 662(1):

Offence charged, part only proved

662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
(b) of an attempt to commit an offence so included.

[omitted (2), (3), (4), (5) and (6)]
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.

– CCC (CanLII), (DOJ)

Note up: 662(1)

There are three instances where an offence will be "included" within another offence:[2]

  1. offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
  2. the offence’s elements are embraced in the offence charged as described in the enactment creating it, e.g., common assault in a charge of sexual assault; or
  3. the offence’s elements are embraced in the offence charged as described in the information or indictment. That is to say, the offences which become included by the addition of apt words of description in the principle charge.


Fair Notice required

For an offence to be included, the accused must have "fair notice" that the included offence exists by the definition of the primary offence.[3]

Test From Implied Inclusion

The primary test for whether an offence is “included” in another offence is "if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included..."[4]

The two considerations are that 1) the "main offence contains the essential elements of the offence to be included", and 2) "the description of the offence is sufficient to alert the accused to all of the included offences that may apply."[5] This section element requires that "the offence charged, either as described in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet."[6]

All essential elements to the included offence must be found within the primary offence.[7]

Jury Instructions

The trial judge must instruct on the availability of a lesser included offence where there is an air of reality to it.[8] Conversely, offences that are not included offences cannot be left with a jury.[9]

  1. ↑ R v GR, 2005 SCC 45 (CanLII), [2005] 2 SCR 371, per Binnie J, at para 25
  2. ↑ R v MN, 2017 ONCA 434 (CanLII), 37 CR (7th) 418, per Weiler JA, at para 31
    R v R(G), 2005 SCC 45 (CanLII), [2005] 2 SCR 371, per Binnie J, at paras 25 to 34
    R v Pelletier, 2012 ONCA 566 (CanLII), 291 CCC (3d) 279, per Watt JA, at para 105
  3. ↑ MN, supra, at para 31
    R(G), supra, at paras 27{{{3}}}
  4. ↑ R v GR, 2005 SCC 45 (CanLII), [2005] 2 SCR 371, per Binnie J, at para 25
  5. ↑ R v DeSousa, 2016 ONSC 2745 (CanLII), per Gilmore J, at para 85
  6. ↑ DeSousa, ibid., at para 86
    R v Simpson, 1981 CanLII 3284 (ON CA), (1981), 20 CR (3d) 36, 58 CCC (2d) 122 (ON CA), per Martin JA, at para 27
    R v Beyo, 2000 CanLII 5683 (ON CA), , 47 OR (3d) 712, per Rosenberg JA, at para 29
  7. ↑ R v Pelletier, 2012 ONCA 566 (CanLII), 291 CCC (3d) 279, per Watt JA, at para 106
  8. ↑ R v Luciano, 2011 ONCA 89 (CanLII), 267 CCC (3d) 16, per Watt JA, at para 75
    See also Air of Reality Test
  9. ↑ R v Romano, 2017 ONCA 837 (CanLII), 41 CR (7th) 305, per Paciocco JA, at para 16

Lesser Offence Examples

Aggravated Assault is a lesser included offence of attempted murder.[1]

Mischief and Break and Enter

Mischief is not included in break and enter[2]

  1. ↑ R v DeSousa, 2016 ONSC 2745 (CanLII), per Gilmore J, at para 87
    R v Norton, 1993 CanLII 8789 (SKQB), , 110 Sask R 151, per Baynton J, overturned on other grounds, 1994 CanLII 4651 (SK CA), per Tallis JA
  2. ↑ R v Robitaille, 2012 ONCJ 155 (CanLII), per Paciocco J
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