Assault not a lesser and included offence for Conspiracy to Assault

R. v. Shi, 2011 ONCA 515 deals with the issue of "lesser and included" offences. The issue often causes problems. To be clear and offence is "lesser and included" if it must form part of the larger offence. Here, as conspiracy can be unfulfilled, the offence of conspiracy to commit does not automatically include the offence conspired towards. The Court holds:


"The appellant was charged with the offence of conspiracy to commit the indictable offence of assault.  The trial judge acquitted him of that offence but found him guilty of the "lesser and included" offence of assault. With respect, he erred in doing so. With her usual candour, Ms. Barrett for the Crown acknowledges that in this case, the substantive offence of assault does not come within any of the three categories identified by Binnie J. in R. v. G.R. (2005), 198 C.C.C. (3d) 161 (S.C.C.), that would entitle it to be considered as an included offence in the conspiracy count."