Lesser included offences

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

The 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..."^[1]

There are three ways in which an offence can be included in a charge:^[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. offences included in the enactment creating the offence charged, e.g., common assault in a charge of sexual assault;
3. offences which become included by the addition of apt words of description in the principle charge.

Examples

• mischief is not included in break and enter (R. v. Robitaille, 2012 ONCJ 155)

References