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Criminal - Included Offences (2). 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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