L'infraction de voies de fait armés n'est pas nécessairement moindre et incluse à l'infraction de voies de fait graves

R. v. St. Clair, 1994 CanLII 8719 (ON CA)

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[13] The Crown conceded in oral argument that the offence created by s. 267 is not an included offence and that the trial judge erred in leaving the offence of assault with a weapon (s. 267(1)(a)) with the jury as a possible verdict. The offence alleged in the indictment was that the appellant committed aggravated assault by wounding. Section 268 provides:

[14] The trial judge, with the apparent consent of both Crown and defence counsel at trial, directed the jury that “assault with a weapon” as set out in s. 267(1)(a), was an included offence and thus a possible verdict. Section 267(1)(a) provides:

[15] The indictment did not set out the means by which the assault was alleged to have been committed. Neither the indictment, nor s. 268 of the Criminal Code (aggravated assault by wounding) makes the offence set out in s. 267 an included offence: see Luckett v. The Queen 1980 CanLII 185 (SCC), (1980), 50 C.C.C. (2d) 489, [1980] 1 S.C.R. 1140, 20 C.R. (3d) 393 (S.C.C.); R. v. Simpson (No. 2) reflex, (1981), 58 C.C.C. (2d) 122, 20 C.R. (3d) 36, 5 W.C.B. 455 (Ont. C.A.). Thus the trial judge erred in leaving the offence set out in s. 267(1)(a) with the jury as an included offence.