|
Criminal - Included Offences. R. v. Scordino
In R. v. Scordino (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal from a murder conviction.
The court considers "the boundary between the powers of the judge and the jury" in relation to deciding what are included offences:[8] The first two issues raised by the appellant require close attention to the boundary between the powers of the judge and the jury. On one hand, the trial judge has the power to decide that an included offence is not to be left with the jury. On the other hand, on the offence charged and any included offence that is being left with the jury, only the jury may determine that the essential elements have been proven – the trial judge may not direct the jury that any non-admitted essential element has been proven or direct them to convict. As in this case, the question on which the exercise of each power may turn – here, whether the killing could be viewed as unintentional – may overlap. Yet, the boundary must be strictly observed.
[9] As I explain below, the trial judge did not err in refusing to leave the included offence of manslaughter with the jury. As this court held in R. v. Ronald, 2019 ONCA 971, at paras. 42 and 47, potential liability for an included offence may be removed from the jury’s consideration where on “the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on [the] included offence”. The trial judge was entitled to find, within the parameters of his power not to leave an included offence with the jury, that if the jury was satisfied that the appellant was the shooter there was no realistic possibility of a verdict of manslaughter. This conclusion was available based on the uncontested forensic pathology evidence that Ms. Skorulski was shot repeatedly in the head, including a final time with the gun pressed directly to the back of her head after she was already incapacitated by a previous shot. The trial judge, in this context, was entitled to find that, “it could not possibly have been an accidental shooting or an unintentional killing.”
....
(a) Legal Principles: The Separate Powers of the Judge and Jury
[36] Whether a jury should be instructed on included offences is a question for the trial judge. The trial judge’s authority not to instruct on an included offence is exercised for the purpose of focussing the jury’s attention “on the live issues actually raised by the evidence”: Ronald, at para. 43. Like the trial judge’s power to keep from the jury affirmative defences that do not have an air of reality, the power to decide not to leave an included offence with the jury seeks to reduce “the risks of unreasonable verdicts, juror confusion, or improper compromise”: Ronald, at para. 43.
[37] Indeed, like the analysis of whether an affirmative defence should be left with the jury, the question of whether the jury should be instructed on an included offence uses an air of reality test as the applicable standard.[6] In considering whether to instruct on an included offence the judge considers whether, “on the totality of the evidence, the jury could reasonably be left in doubt with respect to an element of the main charge that distinguishes that charge from an included offence”: Ronald, at para. 46. For example, if on the totality of the evidence in a first degree murder trial, the jury could reasonably be left in doubt about planning and deliberation, second degree murder must be left with the jury. There should be no instruction on an included offence only when on “the totality of the evidence and having due regard to the position of the parties and the proper application of the burden of proof, there is no realistic possibility of an acquittal on the main charge and a conviction on [the] included offence”: Ronald, at para. 42; R. v. Wolfe, 2024 SCC 34, 98 C.R. (7th) 217, at para. 50.
[38] The trial judge’s power not to instruct the jury on an included offence, and the applicable standard for exercising the power, must be kept separate, analytically, from the issue of what directions may be given to the jury on the main charge and on any included offence that is being left with the jury. With respect to those offences, it is a basic principle that although the trial judge can direct an acquittal, only the jury can decide that the non-admitted essential elements of the offence(s) have been proven, and only the jury can decide to convict, regardless of the judge’s views about what results are reasonable, realistic, or possible: R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at paras. 27-31.
[39] In Gunning, Charron J. observed that this basic principle is not affected by the fact that a trial judge has the power to decide, using an air of reality test, that an affirmative defence is to be kept from the jury. At para. 5 she explained that “[i]t is a basic principle of law that, on a trial by judge and jury, it is for the judge to direct the jury on the law and to assist the jury in their consideration of the facts, but it is for the jury, and the jury alone, to decide whether, on the facts, the offence has been proven … The trial judge’s duty to keep from the jury affirmative defences lacking an evidential foundation does not detract from this principle.” She went on at paras. 28-31 to point out:Subject to one exception, it is also the exclusive domain of the jury to determine the verdict. An exception lies where the judge is satisfied that there is no evidence upon which a properly instructed jury could reasonably convict, in which case, it is the judge’s duty to direct the jury to acquit the accused. This exception is made in order to safeguard against wrongful convictions. However, there is no corresponding duty or entitlement to direct a jury to return a verdict of guilty.
...
As a corollary of the trial judge’s duty to instruct the jury on the law, it is a well-established principle that a judge should withdraw a defence from the consideration of the jury when there is no evidence upon which a properly instructed jury acting reasonably could find in the accused’s favour … This threshold test, requiring that a defence be put to the jury only if there is an evidential foundation for it, is often referred to as the “air of reality” test.
It is important to note that the “air of reality” test has no application in respect of the question of whether the Crown has proved beyond a reasonable doubt each essential element of the offence….
Hence, it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and to direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction. [Emphasis added.] [40] It follows, in my view, that the trial judge’s power to remove an included offence from the jury’s consideration – because there is no air of reality in the evidence to permit a reasonable jury to acquit on the main charge but convict on that included offence – also does not detract from the basic principle enunciated in Gunning. Trial by jury is a constitutionally protected right: Canadian Charter of Rights and Freedoms, s. 11(f). Even if the evidence for guilt is, in the eyes of the trial judge, overwhelming, to direct a verdict of guilty would deprive an accused of that constitutional right: R. v. Krieger, 2006 SCC 47, [2006] 2 S.C.R. 501, at para. 29.
[41] As Gunning makes clear, a trial judge cannot direct the jury to convict or to find that the Crown has proven a non-admitted essential element of the offence no matter how overwhelming the evidence may be on that point. The jury is entitled to have a reasonable doubt about a non-admitted element of an offence, even where the trial judge is of the view that such a conclusion would be perverse. Justice Fish emphasized this point again in Krieger, noting that if a single element could be withdrawn from the jury on the basis that the trial judge considers the evidence overwhelming, then so too could all of the other elements if the trial judge were convinced the evidence on those elements was overwhelming also. This would not be a trial by jury: Krieger, at para. 22. . R. v. Wolfe
In R. v. Wolfe (SCC, 2024) the Supreme Court of Canada allowed a criminal appeal, here where the issue was 'discretionary driving prohibitions' added onto sentencing for convictions for certain CCC offences. This case corrected statutory interpretation confusion that had arisen over the years regarding 'which' convictions this system applied to.
Here the court considers 'included offences':(c) Included Offences
[48] The Crown argues that the appellant’s convictions on the criminal negligence counts “proved him guilty” of dangerous operation. Further, they point to the fact that the trial judge conducted a separate analysis of the dangerous operation offence in the reasons and “explicitly found him guilty of that included offence” (R.F., at paras. 54 and 86-87).
[49] Section 662 of the Criminal Code governs included offences. It provides, in part: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.
....
(5) For greater certainty, when a count charges an offence under section 220, 221 or 236 arising out of the operation of a conveyance, and the evidence does not prove that offence but proves an offence under section 320.13, the accused may be convicted of an offence under that section. Stated briefly, an “offence is ‘included’ 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” (R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 25).
[50] The terms of the included offence provisions signal that their function is limited to situations where the charged offence is not proved. The provisions provide fair notice of an alternate pathway to a guilty verdict. Section 662(5) makes clear that the dangerous operation offence (contrary to s. 320.13) is an included offence for criminal negligence offences arising out of the operation of a conveyance (ss. 220 and 221). But, s. 662(5) also makes clear that only where the evidence does not prove the charged offence does it become possible the accused could be convicted of the included dangerous operation offence (as demonstrated by Parliament’s use of the phrases “does not prove that offence” and “may be convicted”). The trial judge in this case recognized this when he stated that he was satisfied that the appellant was guilty of dangerous operation “in the alternative” and “in case [he was] in error in [his] analysis of criminal negligence” (paras. 171 and 183). Similarly, in jury trials, the trial judge should not instruct a jury on potential liability for an included offence when there is no realistic possibility of an acquittal on the charged offence and a conviction on the included offence (see R. v. Ronald, 2019 ONCA 971, at para. 42; R. v. Wong (2006), 2006 CanLII 18516 (ON CA), 209 C.C.C. (3d) 520 (Ont. C.A.), at para. 12; R. v. Savage, 2023 ONCA 240, at para. 42). This reflects the role of included offences as being an alternative basis for a finding of guilt.
[51] The Crown’s argument jumps from the uncontroversial principle that the accused may, in the alternative, be convicted (or discharged) of an included offence, to the novel principle that the accused may be liable for a punishment available for an included offence even if not convicted or discharged of that offence. The words used in s. 662 speak clearly to the former idea but not the latter. The Crown’s position stretches the included offence rules beyond their current understanding in law and amounts to a novel method of statutory interpretation of criminal offences and penalties.
[52] The jurisprudence on included offences typically centers on the idea of fair notice (see, e.g., G.R., at paras. 11-12). In R. v. Pawluk, 2017 ONCA 863, 357 C.C.C. (3d) 86, Paciocco J.A. explained that “the very concept of an included offence is predicated on the fact that it is not unfair to try the accused on an included offence since the charge laid alerts the accused person that they are alleged to have satisfied all of the elements of the included offence, as well as the charged offence” (para. 28; see also G.R., at para. 30). In G.R., Binnie J. outlined three categories of included offences: (1) offences included by statute; (2) offences included in the enactment creating the offence charged; and (3) offences which become included by the addition of apt words of description to the principal charge (paras. 29-33). Each of these categories meets the test for fair notice; the accused is notified of the extent of their possible jeopardy by either the terms of the Criminal Code or by the words of the indictment (see also Rose, at § 22:8).
[53] Accordingly, an accused has no complaint if, in the alternative, they are found guilty by the court of an included offence, even if that offence is not stipulated on the charging document. It is not at all clear, however, that an accused has been fairly put on notice of their liability for punishments attached uniquely to included offences in situations where they are convicted of the charged offence. Accused persons must be informed in advance and in a non-ambiguous manner of the punishments they are liable to if convicted of a particular offence. This imperative is particularly consequential where an accused pleads guilty to an offence, given the requirement that they be aware of the criminal consequences of their plea (see R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 4). I do not think that offenders who have pleaded guilty to criminal negligence causing death — as in Boily — would reasonably have understood based on the legislation that they may be liable to a driving prohibition for that offence at the time of their plea.
[54] I understand the logic of the Crown’s argument, but I am not persuaded that the relevance of the included offence machinery, which provides fair notice of an alternative basis upon which an accused could be found guilty and subsequently convicted, should be extended beyond situations where the charged offence is not proved. ....
|
