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Pro Se Litigant

Preliminary Inquiry:  Included Offences

Examples: Aiding and Abetting, or Crimes Not Fully Proven

Ethics of Included Offences

An included offence may spring from:

  • the Enactment (Criminal Code)
  • the Information or Indictment

But a Magistrate will disallow included offences that spring from:

  • a Prosecutor's opening argument in court
  • the evidence taken in court

The ethic is that the accused person must know the case he has to meet before court commences.

R. v. Poole (1997) BCCA 2889

Advance Notice of Included Offences

An included offence must be part of the primary offence charged in the Indictment. In order to convict of an included offence, two conditions must be present:

  • The primary offence charged in the Indictment must contain all the essential ingredients for the lesser included offence.
  • The primary offence and the included offence must both refer to the same transaction.

An included offence must be such an obvious and essential constituent of the primary offence that an accused person, when reading the charge, will be fairly informed that he has to refute both the primary offence and the specific included offences. The accused is apprised of the included offences via the wording of the enactment (Criminal Code section), or the wording of the Information; either is acceptable. But if the included offences are apparent only in opening argument from counsel or evidence taken in court, that is not acceptable.

R. v. Kneller (2005) ABPC 116

Structure of Included Offences is Settled Law

The enactment is shorthand for the Canadian Criminal Code enacted by Parliament. The Information is the charging document which itemizes the counts (sections of the Criminal Code contravened, with details of who, what, when, where – the why waits for court).

There are two instances in which an offence will be included in another:

  • When the principal offence, as described in the enactment creating it, includes the commission of another offence; or
  • When the principal offence, as worded on the Information, includes the commission of another offence.

Where the source of an included offence is the enactment, and not the Information, the terms and phrases setting out the main offence must include or involve the subordinate one, in order for the latter to be characterized as an included offence. This is settled law, backed up by a long series of rulings.

Lafrance v. R. (1973) SCC 35

When a Pivotal Element of the Primary Offence is Missing

The theory of an included offence, as reflected the Criminal Code, is that the primary offence has several elements, all of which must be present. Sometimes one element is pivotal. If that element is missing, the main offence cannot be proven, but a lesser offence can be.

Visualize two circles of different sizes. The small circle represents the lesser offence; it sits entirely inside the large circle which denotes the primary offence. The elements of the lesser offence do not go outside the boundary defined for the the primary offence.

The Judge ruled: There is no half-way house whereby the two offences can be viewed as alternative and yet admit of separateness under particular sets of facts. If there are facts which invite a charge under one section of the Criminal Code, but not another, then the two offences are mutually exclusive, leaving as the central issue the specification or definition of the features which differentiate them.

R. v. Carpenter (2005) SKPC 85

Sufficiency of a Charging Document

The Canadian Charter of Rights in Section 11 is concerned with more than just the timeliness of disclosing the charges to an accused person. The Charter elevates to a constitutional right the requirement that a charging document be sufficient.

In determining whether there has been compliance, modern courts adopt a flexible approach as opposed to a technical one. The central consideration, called the Golden Rule of Sufficiency of a charging document, is:

Golden Rule of Sufficiency

The accused must be reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial. When the Information recites all the facts and relates them to a definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled.

A transaction is not synonymous with an incident or occurrence. Several acts involving the same parties at successive times are capable of being treated as one transaction for the purposes of a count in an Information.

A defective Information is no longer a nullity. Modern jurisprudence greatly modifies the early approach, and allows either amendment or the ordering of particulars unless the Information does not give fair notice of the offence to the accused. At the same time, the Rules for Procedure on Preliminary Inquiry (CCC ss. 535–581) are being tightened to better define what constitutes fair notice to the accused.

Specifically the same transaction rule – which has long existed as an equitable tool to guide judges presiding over trials – has proved its worth. In 2002 it came into force at the Preliminary Inquiry level. The current version of section 535 reads:

Inquiry by Justice
CCC s. 535 – If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry … the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

Canadian Criminal Code
Procedure on Preliminary Inquiry

Jurisdiction

Inquiry by Justice

CCC s 535  –  If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part, inquire into the charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

Canadian Criminal Code
Procedure In Jury Trials and General Provisions

Verdicts

Full Offence Charged, Attempt Proved

CCC s 660.  –  Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.

Attempt Charged, Full Offence Proved

CCC s 661. (1)  –  Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.

Offence Charged, Part Only Proved

CCC s 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:

  1. of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
  2. of an attempt to commit an offence so included.
Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com
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Q.B. Courthouse, Saskatoon

Queen’s Bench Courthouse

Saskatoon, Canada

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