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Criminal - Included Offences (2). R. v. Osman
In R. v. Osman (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here "from a directed verdict of acquittal on a charge of being an accessory after the fact to murder".
Here the court considers the tricky issue of whether "attempted murder [is] an included offence to murder" and whether "being an accessory after the fact to attempted murder [is] an included offence to being an accessory after the fact to murder":(iii) Is attempted murder an included offence to murder and is being an accessory after the fact to attempted murder an included offence to being an accessory after the fact to murder?
[71] A central focus of the Crown’s argument in this appeal is the contention that, because Duong 1998 holds that a person charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to an included offence to murder, if attempted murder is an included offence to murder, then being an accessory after the fact to attempted murder must be an included offence to being an accessory after the fact to murder.
[72] The Crown’s argument relies on two submissions about the relationship between a charge of murder and attempted murder. First, the Crown argues that attempted murder is an included offence to murder pursuant to both s. 660 and s. 662(1) of the Criminal Code. Second, the Crown argues that a conviction for attempted murder is possible even where the victim dies, relying on Sarrazin and Forcillo.
[73] As I will explain, I accept that the offence of attempted murder is included in a count charging murder, in circumstances where s. 660 of the Criminal Code applies. I am also prepared to assume, but do not decide, that attempted murder is an included offence under s. 662(1) by the enactment creating the offence of murder following the analysis in Tenthorey and Simpson (No. 2) for offences that are defined as including multiple means of commission. I also accept that in some cases where the victim dies, there may be an air of reality to an attempted murder verdict in relation to the principal. Where I part company with the Crown is that the jurisprudence is clear that cases in which attempted murder has an air of reality as a verdict for the principal despite the death of the victim are rare. This appeal is not one of those rare cases.
[74] In my view, the Crown seeks to extend the decisions in Sarrazin and Forcillo beyond their holdings and in a manner that is inconsistent with the requirement that an included offence have an air of reality before it is left to the jury.
[75] In both Sarrazin and Forcillo, attempted murder was available as a verdict for the principal because there was a triable issue about whether the causation of the victim’s death by the principal’s acts, an element of murder, was proven beyond a reasonable doubt. As I will explain, such cases are rare.
[76] The same caution extends to the offence of being an accessory after the fact to attempted murder as an included offence to being an accessory after the fact to murder. Pursuant to Duong 1998, as an included offence to murder, attempted murder can be considered as an included offence to the specified offence in a charge of being an accessory after the fact to murder. However, whether there is an air of reality to accessory after the fact to attempted murder will depend on the trial evidence. In practice, such cases will be rare. If there is no dispute on the trial evidence that the actions of the principal caused the death of the victim, there will be no air of reality to the offence of being an accessory after the fact to attempted murder.
(a) Attempted murder as an included offence to murder
[77] Sarrazin holds that s. 660 of the Criminal Code permits a conviction for attempted murder of a person charged with murder.[9] In other words, attempted murder can be an included offence to murder under s. 660.
[78] In Sarrazin, two accused were convicted of second-degree murder. The victim died after being shot by the accused, but there was a live issue on the trial evidence about whether the shooting caused the victim’s death. The accused argued on appeal that the trial judge erred in declining to instruct the jury on attempted murder as an included offence. This court and the Supreme Court of Canada agreed.
[79] Adopting the analysis of Doherty J.A. in this court on the included offence issue, the Supreme Court held that in the circumstances of Sarrazin, attempted murder should have been left to the jury as an included offence because there was medical evidence which could have allowed the jury to have a reasonable doubt about whether the accused caused the victim’s death: at paras. 20-21; Sarrazin CA, at paras. 26-29.
[80] Thus, it is clear from Sarrazin that where a count charges murder, attempted murder is an available verdict under s. 660 of the Criminal Code, and should be left to the jury, if the evidence raises an air of reality to a verdict of attempted murder. Importantly, however, s. 660 permits a conviction for attempted murder only when murder is charged “where the complete commission of the offence charged is not proved”.
[81] I turn then to whether attempted murder is an included offence to murder under s. 662(1) of the Criminal Code. Because of the holding in Sarrazin that attempted murder can, in appropriate cases, be an included offence to murder pursuant to s. 660 of the Criminal Code, it is not necessary to decide whether attempted murder is also an included offence to murder under s. 662(1) by virtue of being included in the enactment that creates the offence of murder.
[82] But I observe that there is force to the Crown’s argument that attempted murder is an included offence by the wording of the enactment creating the offence of a count charging murder, even though not every person who commits murder has the specific intent required for attempted murder. The argument to the contrary rests on the following steps of argument: (i) attempted murder requires the specific intent to kill according to R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225; (ii) murder as defined in s. 229 of the Criminal Code can be committed either with specific intent to kill or with the intent to cause bodily harm knowing that it is likely to cause death and being reckless as to whether death ensues; (iii) it is thus possible to commit murder without having specific intent to kill, a necessary element to attempted murder; (iv) this means that attempted murder is not “necessarily included” in the enactment creating murder.
[83] However, this chain of reasoning appears to be inconsistent with this court’s explanations in Tenthorey and Simpson (No. 2) of how included offences by the enactment creating the charged offence apply to offences that are defined in the enactment with multiple modes of commission. In the case of murder, a person charged with murder is on notice that the Crown can prove the required intent by proving either specific intent to kill or intent to cause bodily harm knowing that it is likely to cause death and being reckless as to whether death ensues.[10] Thus, where murder is charged, the accused is on notice that the intent required for attempted murder is in issue.
(b) Caution about when an air of reality will exist for attempted murder despite the death of the victim
[84] The fact that attempted murder is available as a verdict where murder is charged under s. 660, and assuming but not deciding that the same is true under s. 662(1), does not mean that attempted murder is available as an included offence in every case where murder is charged. In Sarrazin CA, after holding that s. 660 makes attempted murder an available verdict where murder is charged, Doherty J.A. added the following caution, at para. 62:In summary, s. 660 applies to murder charges. Section 660 puts an accused charged with murder on notice that he or she is in jeopardy of being convicted of attempted murder if the Crown fails to prove the completed offence. I would think that in most murder cases there will be no air of reality to the possibility of a conviction for attempted murder as causation will not be in dispute. In those cases, it will be unnecessary to instruct the jury on the accused’s potential liability for attempted murder. [Emphasis added.] [85] Thus, while attempted murder is available as a verdict where murder is charged, there must be an air of reality on the trial evidence for a trial judge to be required to instruct the jury on it. It is clear from the caution of Doherty J.A. expressed above that where causation of death is not a live issue, it will not be appropriate to leave attempted murder to the jury as an included offence because there will be no air of reality to attempted murder as a verdict. Sarrazin is one of the rare cases where there was an air of reality to an attempted murder verdict despite the death of the victim. That was because causation of death was a live issue on the trial evidence.
[86] I turn next to this court’s decision in Forcillo, which in my view stands for a similarly limited proposition. Forcillo was not a case about included offences. In Forcillo, the Crown laid two counts, one of murder and one of attempted murder. The Crown’s theory in Forcillo was that the accused fired shots at the victim in two volleys, which could be viewed for purposes of liability as separate transactions. The medical evidence supported that the first volley of shots caused the victim’s death, although not immediately. The jury found the accused not guilty of second-degree murder, but guilty of attempted murder. The jury’s verdict indicated that they accepted the accused’s claim of self-defence for the first volley of shots. Based on the medical evidence, the second volley of shots did not cause death. The jury’s verdict indicated that it found the Crown had disproved self-defence beyond a reasonable doubt for the second volley of shots, which were fired when the victim was already lying on the ground after the first volley of shots.
[87] The accused in Forcillo appealed, arguing that the conviction for attempted murder was inconsistent with the acquittal for second-degree murder. The issues on appeal focused on whether the two volleys were properly viewed as separate transactions and the principle of self-defence law that an accused is not required to judge defensive force to a nicety. Those issues are not relevant to this appeal. This court held that the differing verdicts on the two counts were not inconsistent. Implicit in this court’s analysis in Forcillo was an acceptance that attempted murder was available as a verdict despite the fact that the victim died. This was because there was evidence that the victim was still alive at the time of the second volley of shots, and the second volley of shots did not cause the death of the victim, who was fatally injured by one of the shots in the first volley: Forcillo, at para. 3.
[88] As in Sarrazin CA, the court in Forcillo commented on the uniqueness of the factual situation that allowed this result, at para. 8:The combination of verdicts returned by the jury presents an unusual, if not unique, result. The appellant stands acquitted of murdering Mr. Yatim and he stands convicted of attempting to murder Mr. Yatim, some 5.5 seconds later. In effect, the appellant has been convicted of attempting to murder the very same person he was found to have justifiably fatally shot just 5.5 seconds earlier. [89] What is common to Sarrazin and Forcillo is that in both cases, despite the fact that the victim died, the evidence – in particular as it related to cause of death – raised an air of reality with respect to the offence of attempted murder. As Doherty J.A. observed in Sarrazin CA, that is a rare situation in a murder trial.
[90] I would observe that the conclusion in Sarrazin CA that it will be a rare case where there is an air of reality to attempted murder as an included offence to murder is not only consistent with common sense and experience, but also consistent with the limitations in the text of ss. 660 and 662(1) of the Criminal Code with respect to attempts as included offences and included offences more generally. As outlined above, both s. 660 and s. 662(1) contain the limitation that they only apply to create included offences where the offence charged “is not proved”. In Sarrazin, because of the evidence that made causation of death a live issue, it was an error for the trial judge not to leave attempted murder to the jury as an included offence because there was an air of reality to the jury having a reasonable doubt that the acts of the accused caused the death of the victim and thus, a realistic possibility that the jury could find the offence charged (murder) was “not proved”.
(c) Accessory after the fact to attempted murder as an included offence to accessory after the fact to murder
[91] I return to the principle from Duong 1998 that a person charged with being an accessory after the fact to murder can be convicted of being an accessory after the fact to an included offence to murder. The example given in Duong 1998 is that a person charged with being an accessory after the fact to murder can be found liable for being an accessory after the fact to manslaughter. The issue in this appeal is whether the offence of being an accessory after the fact to attempted murder is an included offence to a charge of being an accessory after the fact to murder, where there is no dispute that the principal’s act caused the death of the victim.
[92] In light of my conclusion that attempted murder is an included offence to murder, it follows from Duong 1998 that a person charged with being an accessory after the fact to murder can be liable to be convicted of being an accessory after the fact to attempted murder on the basis that attempted murder is an included offence to murder, at least in circumstances where the evidence would support finding the principal guilty of attempted murder.
[93] The conclusion that attempted murder can be an included offence to murder, and, for that reason, the offence of being an accessory after the fact to attempted murder can be an included offence when the charge is being an accessory after the fact to murder, does not lead to the conclusion that in every case where an accused is charged with being an accessory after the fact to murder, a trial judge must instruct the jury on accessory after the fact to attempted murder as an included offence. A trial judge will be required to instruct a jury on accessory after the fact to attempted murder as an included offence only if there is an air of reality to that offence. The next section of these reasons addresses that issue.
[94] I flag one issue, which I return to below. As noted above, the offence of being an accessory after the fact to murder requires that the acts by the accessory to assist the principal to escape be committed after the victim dies. Consistent with this requirement, a count charging accessory after the fact to murder typically particularizes the count to acts committed by the accessory after the victim has died. This temporal particularization may raise issues of notice to the accused of the actions which are the subject of the charge (i.e., whether the particularization excludes actions before the death of the victim). I address that issue in the last section of these reasons. . R. v. Osman
In R. v. Osman (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown criminal appeal, here "from a directed verdict of acquittal on a charge of being an accessory after the fact to murder".
Here the court reviews the criminal law of 'included offences':(ii) Principles applicable to included offences
[58] The Criminal Code provisions and jurisprudence in relation to included offences are an expression of the fundamental criminal law principle that an accused is entitled to know the charge or charges they must meet. The counts in an indictment give the accused notice of the charge or charges the Crown is proceeding on. The law of included offences provides a structured framework for the accused and the Crown to know what charges are included within the charge in each count in an indictment, if the Crown proves some, but not all, of the facts required to prove the count(s) charged: G.R., at paras. 2-3, 11-13; R. v. Simpson (No. 2) (1981), 1981 CanLII 3284 (ON CA), 58 C.C.C. (2d) 122 (Ont. C.A.), at p. 133.
[59] The law in relation to included offences is statute-based in ss. 660 and 662 of the Criminal Code: Simpson (No. 2), at pp. 131-32; G.R., at para. 29. Sections 660 and 662(1), which are the focus of this appeal, provide as follows: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.
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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. [60] These provisions have been interpreted to mean that offences may be included offences[7] in one of three ways:1. Offences specifically included by statute; i.e., those offences specified in ss. 662(2) to (6), and attempts 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 or assault causing bodily harm (s. 662(1)); or,
3. Where the words pleaded in the count set out elements that give notice of a particular included offence (s. 662(1)). G.R., at paras. 25-32; Tenthorey, at para. 52; Simpson (No. 2), at pp. 131-33.
[61] Each of these categories of included offences satisfies the requirement of giving notice to the accused of what offences are included in the offence charged.
[62] The Crown’s arguments in this appeal rely on a portion of category (1) above (attempts under s. 660 of the Criminal Code) and category (2) (offences included in the enactment creating the offence charged, pursuant to s. 662(1)).
[63] To ground the analysis that follows, I elaborate on two aspects of the law in relation to included offences. The first point relates only to s. 662(1). The second relates to both ss. 660 and 662(1).
[64] First, in Tenthorey, Paciocco J.A. addressed an issue that is sometimes the subject of confusion in relation to the second category of included offences, offences included by the enactment creating the offence charged, pursuant to s. 662(1). The jurisprudence often describes the requirement for an offence to be included by the wording of the enactment of the charged offence to be that the purported included offence must be “necessarily included” in the charged offence: Tenthorey, at para. 58; G.R., at paras. 25-27, 30-31; Simpson (No. 2), at pp. 135‑37.
[65] The “necessarily included” formulation of the test for offences included by the enactment of the charged offence is straightforward to apply when the offence charged can only be committed in one way. If that one way of committing the offence charged cannot be accomplished without committing the offence said to be included, then the accused person will be on notice that the elements of the included offence are in issue, and it is properly an included offence: Tenthorey, at paras. 52-53.
[66] However, the “necessarily included” formulation of the test can be misleading when applied to offences that describe more than one mode of commission. An example of this, discussed in Tenthorey, is an unparticularized count of aggravated assault. The offence of aggravated assault in s. 268 of the Criminal Code describes four means to commit the offence: by wounding, maiming, disfiguring, or endangering the life of the victim. Because there are four means of committing the offence in the enactment (s. 268), if the count is not particularized, the accused is on notice that all four means of committing aggravated assault are in issue. An offence which is necessarily included in any one of the four means of committing aggravated assault is an included offence. On this basis, because bodily harm is necessarily included in three of the modes of committing aggravated assault (wounding, maiming, and disfiguring), assault causing bodily harm is an included offence in an unparticularized count of aggravated assault, despite the fact that the fourth means of committing aggravated assault – by endangering life – does not necessarily include causing bodily harm to the victim: Tenthorey, at paras. 54-55; Simpson (No. 2), at p. 139.
[67] I return to the Tenthorey decision below in relation to whether attempted murder is an included offence to murder by the enactment of the offence – i.e., whether the elements of attempted murder are necessarily included in a count charging murder, such that the accused will be fairly informed in every case that he will have to meet not only the elements of murder but also the elements of attempted murder.
[68] Second, ss. 660 and 662(1) both contain important limiting language in terms of their application. As noted above, included offences are governed by the statutory provisions in the Criminal Code. As such, we must not lose sight of the language of the statutory provisions. I reproduce the provisions again with that language emphasized: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.
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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. [Emphasis added.] [69] The formulation of attempts as included offences in s. 660, and that of included offences more generally in s. 662(1), both include a requirement that the “complete” or “whole” offence charged “is not proved”.[8] . R. v. Pan
In R. v. Pan (SCC, 2025) the Supreme Court of Canada dismissed a Crown criminal appeal, here from an Ontario Court of Appeal set aside of convictions for first degree murder, and the ordering of a new trial.
Here the court considers whether the failure to advise a jury of an included offence verdict could be subject of a curative proviso [under s.686(1)(a)(ii) and s.686(1)(a)(iii)]:[86] Failure to instruct the jury on a potential verdict is an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code (Sarrazin, at para. 64). An error of law will warrant setting aside the conviction under s. 686(2). However, under s. 686(1)(b)(iii), a court of appeal may dismiss the appeal and uphold the conviction where the Crown can establish that no substantial wrong or miscarriage of justice flowed from the error (para. 65; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 21).
[87] Specifically, the curative proviso set out in s. 686(1)(b)(iii) is available where: (1) the error or irregularity in question is minor or harmless, such that it had no impact on the verdict; or (2) the error or irregularity, despite being serious enough to warrant a new trial, caused no substantial wrong or miscarriage of justice because the evidence against the accused is so overwhelming that a trier of fact would inevitably convict (see R. v. Tayo Tompouba, 2024 SCC 16, at para. 76).
[88] In simple terms, the question is whether there is no reasonable possibility that the verdict would have been different had the legal error not been committed (Sarrazin, at para. 65). I am not satisfied that the Crown has met its burden in this regard.
[89] This Court has established that a conviction on a more serious charge cannot be taken to mean that a jury would not have convicted on a lesser charge had it been available (Haughton). In such circumstances, as mentioned above, there is always the risk that “the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable” (p. 517).
[90] Only in rare cases will it be possible to conclude that an error in failing to leave an available verdict with the jury did not cause a substantial wrong. As Doherty J.A. suggested in Ronald, the proviso may apply where “the court can take into account findings of fact implicit in the verdict or verdicts returned by the jury as long as those verdicts are not tainted by the legal error, and those findings are unambiguously revealed by the verdict” (paras. 68-69). With that said, the court must remain mindful of the risk that the jury convicted on the principal offence solely because an acquittal was the only other option. While I would not foreclose the possibility that, in rare instances, the air of reality to an included offence will be so marginal as to permit the application of the proviso, this is not one those cases.
[91] Had the jury been properly instructed on the included offence theories, it would have had to grapple with the evidence suggesting that Jennifer did not have the same animus towards her mother as she did towards her father. I would note that much of this evidence came from Jennifer herself, whose theory at trial was that the only plan in November 2010 was that she herself would be killed, and who thus had no interest in admitting any animus towards either parent. That she did admit her animus towards her father while maintaining that her mother was “the perfect mother” is not insignificant (A.R., part V, vol. L, at p. 310). Reasonable doubt about planning and deliberation, as I have stressed, is a low bar.
[92] I do not dispute that a conviction on one of the included offences, particularly second degree murder, which has a subjective mens rea element, would require the jury to draw important inferences based solely on circumstantial evidence. However, I would not consider a conviction on either one of those offences to be outside the realm of possibility. I therefore conclude that the curative proviso does not apply. . 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.
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(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. ....
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