Can evidence at trial be considered to be an included offence?

Alberta, Canada


The following excerpt is from R. v. Chichak, 1978 ALTASCAD 14 (CanLII):

It is clear that the evidence adduced at trial cannot by itself give rise to an included offence. In Regina v. Chand and Chandra (1974) 4 W.W.R. 3 Bull J.A. at page 7 said this: "Evidence adduced at a trial has relevance to included offences only on the question as to whether or not what can be an included charge to the charge laid can be supported by the evidence thus necessitating a charge to the jury thereon. The evidence cannot give a right to register a conviction on a charge which it supports but which is not included in the charge laid or the enactment creating the offence. To my mind, no other offence is included in the relevant section or in the count simpliciter of attempted murder."

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