When reviewing a charging document, counsel must contemplate an accused’s jeopardy for any partial, or lesser included, offences. Counsel must also be alert to an accused’s potential liability for an attempt to commit the offence charged.
The analytical starting point for assessing an accused’s liability for a partial offence or for an attempt is section 662 of the Criminal Code of Canada that states:
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.
By way of example, the offence of assault causing bodily harm includes the offence of assault. If the judge is not satisfied that the prosecution has proven the element of bodily harm beyond a reasonable doubt at trial, the judge could still find the accused guilty of assault.
Counsel must also take into account sections 662(2) to (6) of the Criminal Code that deem certain offences to be included offences depending upon the specific offence charged. For example, 662(6) allows for a conviction for break and enter with the intent to commit an indictable offence (s. 348(1)(a)) when the specific offence charged is that the accused broke and entered and did commit an indictable offence therein (s. 348(1)(b)).
With respect to the meaning of what constitutes an attempt to commit the offence charged, counsel must refer to section 24 of the Criminal Code – performing an action or omission that is more than “mere preparation” while having the intent to commit the offence charged.
Tactical advice at a criminal trial must take into account any viable offence within the limits of the charging document.
When advising an accused whether to testify, counsel may have to weigh the benefit of trying to raise a reasonable doubt with respect to the more serious offence charged against providing the prosecution with the foundation necessary for a conviction for a lesser included offence.