Lesser Included

• 2005scc45

  2005scc45

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• R v G.R.

  [2005] 2 SCR 371 · Supreme Court of Canada · incest

  R. v. G.R.

  [2005] 2 S.C.R. 371, 2005 SCC 45
  Supreme Court of Canada — Binnie J. (majority), Abella J. (dissent) | July 22, 2005

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  Background

  G.R. was charged with incest involving his daughter, who was between five and nine years old during the alleged incidents. At trial, the daughter testified that her father had not put his penis into her vulva, though medical evidence showed some form of penetration had occurred. The father categorically denied any sexual contact with his daughter.

  The trial judge convicted G.R. of attempted incest. On appeal, the Crown conceded there was insufficient evidence for attempted incest, but argued the court should instead convict him of sexual assault and sexual interference — even though he had never been charged with those offences. The Quebec Court of Appeal refused and acquitted him entirely.

  Issues

  1. Can an accused be convicted of sexual assault and sexual interference as "included offences" when charged only with incest?
  2. What constitutes fair notice of the charges an accused must defend against?

  The Included Offences Problem

  Section 662 of the Criminal Code allows conviction for "included offences" — but only in three specific situations: (1) when the Code explicitly says one offence includes another, (2) when the statutory definition necessarily includes the lesser offence, or (3) when the indictment's wording describes facts that put the accused on notice of the included charge.

  The majority found none of these applied. Incest can be committed consensually between adults — it doesn't require assault. The age of the victim isn't an element of incest. Most importantly, the indictment never mentioned the daughter's age or lack of consent. The Crown was essentially trying to add new charges after the fact based on evidence that emerged at trial.

  Justice Binnie emphasized a fundamental principle: "The basis of our criminal law is that [an accused] is only called upon to meet the charge put forward by the prosecution." You can't be convicted of charges that were never formally laid against you, even if the facts might support them.

  Key Takeaway

  Fair notice means you can only be convicted of what you were actually charged with — not what the Crown wishes it had charged you with.

  This principle protects accused persons from surprise convictions and ensures they know exactly what they need to defend against. The Crown's prosecutorial choices have consequences, and courts won't rescue them from strategic errors after the fact.

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• R v Kienapple

  [1975] 1 SCR 729 · Supreme Court of Canada · rape and unlawful carnal knowledge

  Kienapple v. The Queen

  [1975] 1 S.C.R. 729
  Supreme Court of Canada — Fauteux C.J., Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ. | February 12, 1974

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  Background

  John Edward Kienapple was charged with two separate criminal offences arising from a single sexual encounter with a 13-year-old girl who was not his wife. The Crown laid one charge of rape under section 143 of the Criminal Code, and a second charge of unlawful carnal knowledge of a female under fourteen under section 146(1). At trial, the jury found Kienapple guilty on both counts for what was essentially the same physical act. He was sentenced to concurrent terms of ten years imprisonment. The Ontario Court of Appeal dismissed his appeal without written reasons, but the Supreme Court granted leave to determine whether these dual convictions violated the principle against double jeopardy.

  Issues

  1. Can an accused be convicted of both rape and unlawful carnal knowledge when both charges arise from the same single act of sexual intercourse?
  2. Does the rule against multiple convictions apply when the offences have different elements, even if they stem from identical facts?

  The Rule Against Multiple Convictions

  The Supreme Court established a crucial principle: you cannot be convicted twice for the same delict. Justice Laskin, writing for the majority, explained that while rape requires proof of lack of consent, and unlawful carnal knowledge simply requires proof the girl was under fourteen, both charges described the exact same physical act with the same victim. The court distinguished this case from situations involving conspiracy or separate acts — here, there was literally one act of sexual intercourse that the Crown was trying to punish twice under different legal theories. The court relied on section 11 of the Criminal Code (now section 12), which prevents multiple punishments for the same offence, and the broader principle of res judicata. The justices noted that allowing multiple convictions for a single act would violate fundamental principles of criminal law, even when the legal elements of the offences differ slightly.

  Key Takeaway

  The Crown cannot secure multiple convictions against you for the same act, even under different sections of the law.

  While this Supreme Court case deals with criminal law rather than provincial offences, it establishes an important principle about prosecutorial overreach. If you're facing multiple charges that essentially punish the same conduct twice, this precedent supports challenging those overlapping charges — though always consult with legal counsel for advice specific to your situation.

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• R v PREEPER

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