Lesser Included Offences: Difference between revisions
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A lesser included offence must be "embraced" by the primary offence.<ref> | A lesser included offence must be "embraced" by the primary offence.<ref> | ||
{{ | {{CanLIIRP|GR|1l6wm|2005 SCC 45 (CanLII)|[2005] 2 SCR 371}}{{perSCC|Binnie J}}{{atL|1l6wm|25}}<br> | ||
</ref> | </ref> | ||
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There are three instances where an offence will be "included" within another offence:<ref> | There are three instances where an offence will be "included" within another offence:<ref> | ||
{{ | {{CanLIIRP|MN|h41d2|2017 ONCA 434 (CanLII)|37 CR (7th) 418}}{{perONCA|Weiler JA}}{{atL|h41d2|31}}<br> | ||
{{CanLIIRP|R(G)|1l6wm|2005 SCC 45 (CanLII)|[2005] 2 SCR 371}}{{perSCC|Binnie J}}{{atsL|1l6wm|25| to 34}}<br> | {{CanLIIRP|R(G)|1l6wm|2005 SCC 45 (CanLII)|[2005] 2 SCR 371}}{{perSCC|Binnie J}}{{atsL|1l6wm|25| to 34}}<br> | ||
{{ | {{CanLIIRP|Pelletier|fsjc2|2012 ONCA 566 (CanLII)|291 CCC (3d) 279}}{{perONCA|Watt JA}}{{atL|fsjc2|105}}<br> | ||
</ref> | </ref> | ||
#offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660; | #offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660; | ||
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; Test From Implied Inclusion | ; 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..."<ref> | 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..."<ref> | ||
{{ | {{CanLIIRP|GR|1l6wm|2005 SCC 45 (CanLII)|[2005] 2 SCR 371}}{{perSCC|Binnie J}}{{atL|1l6wm|25}}</ref> | ||
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."<ref> | 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."<ref> | ||
{{ | {{CanLIIRx|DeSousa|gpq5g|2016 ONSC 2745 (CanLII)}}{{perONSC|Gilmore J}}{{atL|gpq5g|85}}<br> | ||
</ref> | </ref> | ||
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."<ref> | 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."<ref> | ||
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All essential elements to the included offence must be found within the primary offence.<ref> | All essential elements to the included offence must be found within the primary offence.<ref> | ||
{{ | {{CanLIIRP|Pelletier|fsjc2|2012 ONCA 566 (CanLII)|291 CCC (3d) 279}}{{perONCA|Watt JA}}{{atL|fsjc2|106}}<br> | ||
</ref> | </ref> | ||
; Jury Instructions | ; Jury Instructions | ||
The trial judge must instruct on the availability of a lesser included offence where there is an air of reality to it.<ref> | The trial judge must instruct on the availability of a lesser included offence where there is an air of reality to it.<ref> | ||
{{ | {{CanLIIRP|Luciano|2fhtn|2011 ONCA 89 (CanLII)|267 CCC (3d) 16}}{{perONCA|Watt JA}}{{atL|2fhtn|75}}<br> | ||
See also [[Air of Reality Test]]<br> | See also [[Air of Reality Test]]<br> | ||
</ref> | </ref> | ||
Conversely, offences that are ''not'' included offences cannot be left with a jury.<ref> | Conversely, offences that are ''not'' included offences cannot be left with a jury.<ref> | ||
{{ | {{CanLIIRP|Romano|hmvt0|2017 ONCA 837 (CanLII)|41 CR (7th) 305}}{{perONCA|Paciocco JA}}{{atL|hmvt0|16}}<br> | ||
</ref> | </ref> | ||
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Aggravated Assault is a lesser included offence of attempted murder.<ref> | Aggravated Assault is a lesser included offence of attempted murder.<ref> | ||
{{ | {{CanLIIRx|DeSousa|gpq5g|2016 ONSC 2745 (CanLII)}}{{perONSC|Gilmore J}}{{atL|gpq5g|87}}<br> | ||
{{CanLIIRP|Norton|gd9lb|1993 CanLII 8789 (SKQB)|, 110 Sask R 151}}{{perSKQB|Baynton J}}, overturned on other grounds, [http://canlii.ca/t/1nqpk 1994 CanLII 4651] (SK CA){{perSKCA|Tallis JA}}<br> | {{CanLIIRP|Norton|gd9lb|1993 CanLII 8789 (SKQB)|, 110 Sask R 151}}{{perSKQB|Baynton J}}, overturned on other grounds, [http://canlii.ca/t/1nqpk 1994 CanLII 4651] (SK CA){{perSKCA|Tallis JA}}<br> | ||
</ref> | </ref> | ||
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; Mischief and Break and Enter | ; Mischief and Break and Enter | ||
Mischief is not included in break and enter<ref> | Mischief is not included in break and enter<ref> | ||
{{ | {{CanLIIRx|Robitaille|fqqvl|2012 ONCJ 155 (CanLII)}}{{perONCJ|Paciocco J}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Revision as of 08:11, 17 August 2021
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.
There are three instances where an offence will be "included" within another offence:[2]
- offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
- 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
- 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]
- ↑
R v GR, 2005 SCC 45 (CanLII), [2005] 2 SCR 371, per Binnie J, at para 25
- ↑
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
- ↑
MN, supra, at para 31
R(G), supra, at paras 27{{{3}}}
- ↑ R v GR, 2005 SCC 45 (CanLII), [2005] 2 SCR 371, per Binnie J, at para 25
- ↑
R v DeSousa, 2016 ONSC 2745 (CanLII), per Gilmore J, at para 85
- ↑
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
- ↑
R v Pelletier, 2012 ONCA 566 (CanLII), 291 CCC (3d) 279, per Watt JA, at para 106
- ↑
R v Luciano, 2011 ONCA 89 (CanLII), 267 CCC (3d) 16, per Watt JA, at para 75
See also Air of Reality Test
- ↑
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]
- ↑
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
- ↑ R v Robitaille, 2012 ONCJ 155 (CanLII), per Paciocco J