Care & Control Over 80 as an Included Offence

An included offence is a distinct offence that arises from the same facts and is necessarily committed where the charged offence has been committed.

R. v. Ovcaric (1973), 11 C.C.C. (2d) 565 (Ont. C.A.);
R. v. G.R., 2005 SCC 45 (CanLII), [2005] 2 S.C.R. 371, at para. 25.

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. [FN]

R. v. Pawluk, 2017 ONCA 863, at para. 28.  
For instance, a person charged with impaired driving is sufficiently informed that they also face the included offence of impaired care or control.

See R. v. Plank (1986), 28 C.C.C. (3d) 386 (Ont. C.A.).

Similarly, a person charged with driving over 80 (that is, operation of a motor vehicle with a blood-alcohol concentration in excess of 80 mg per 100 ml of blood) is sufficiently informed that they also face the included offence of care or control over 80.

R. v. Pawluk, 2017 ONCA 863, at para 28. 

[FN]: However, where the Crown has actively induced the accused, to their detriment, into believing that the Crown is proceeding only on the theory of the charged offence, it may well be unfair for the Crown to rely on an included offence, and for a trial judge to convict on one: R. v. Pawluk, at para. 30 (obiter).


Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca


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