In Canada, all offences under the Criminal Code of Canada and other legislation such as The Controlled Drugs and Substances Act, are categorized as either “summary”, “indictable” or “hybrid”. A straight summary offence is generally less serious both in terms of the type of crime and the sentence or penalty. By contrast, a straight indictable offence covers more serious crimes with more serious sentences. A hybrid offence is a crime where the Crown Prosecutor can decide whether they will proceed “summarily” or “by indictment” depending on the seriousness of the facts alleged.
Given the prominence of American crime film and television, people are generally familiar with the terms “misdemeanor” and “felony.” While the translation is not exact, misdemeanors in Canada are known as “summary offences” and felonies as “indictable offences.”
This article will cover the basics of summary and indictable offences and discusses the differences between each. However, this is a very complicated area of the law. Please contact a lawyer at Pringle Law and we will be happy to provide you with timely advice.
A summary conviction offence is a crime that is less serious and invites a lesser punishment. The maximum fines (less than $5,000.00 unless otherwise stated) and the maximum jail term (2 years less a day unless otherwise stated) are lower than an indictable offence. The maximum jail term for summary offences is two years less a day. This means that if you go to jail as a result of being convicted of a summary offence, you will serve your jail sentence in a provincial institution.
If you are charged with a summary offence, your matter will be heard in Provincial Court by a judge. You do not have the option to have a preliminary inquiry nor to be tried by a judge and jury. The charging document throughout your proceedings in Provincial Court is called the “information.”
Police officers or RCMP have 12 months from your alleged offence date to lay charges. For instance, if you are alleged to have trespassed on someone’s property on January 15th, the police have until January 15th the following year to lay charges.
For summary offences, the accused does not need to be personally present in court if they have an agent appearing on their behalf (i.e. a lawyer). The exception to this rule is if the judge orders that the accused be personally present, in which case they must appear in person or a warrant will be issued for their arrest.
Common examples of summary conviction offences include causing a disturbance and trespassing at night.
An indictable offence is a crime that is more serious and invites a greater punishment, both in terms of higher fines and longer maximum jail sentences. The maximum punishment can be up to life imprisonment. If you are convicted of an indictable offence and you are given a jail sentence of less than two years, it will be served in a provincial institution. If the sentence is greater than two years, it will be served in a federal penitentiary.
For most indictable offences (other than those listed in sections 469 or 553 of the Criminal Code, as discussed below), you will have the option to deal with your matter in Provincial Court or in Superior Court (in Alberta, the Court King’s Bench). If you elect to deal with your matter in Provincial Court, like with summary offences, you will not have a preliminary inquiry nor the option to be tried by a judge and jury. If you elect to be heard in the Court King’s Bench, you might have the option to have a preliminary inquiry, depending on the type of offence. A preliminary inquiry is like a “pre-trial” or “discovery” where a Judge determines if the Crown has enough evidence for the matter to proceed to trial. Please see our article on preliminary inquiries for more information. If your matter proceeds to trial in the Court King’s Bench, you can choose whether you are tried by a justice sitting alone or with a jury. If an accused does not make an election, it will be deemed to be in the Court King’s Bench by a justice sitting with a jury. We encourage you to contact a lawyer at Pringle Law to discuss these important procedural decisions, which may be crucial to the outcome of your case.
For some indictable offences, this will also affect where your bail hearing is conducted. For most indictable offences, you have the option to have your bail hearing over the phone with a Justice of the Peace or in Provincial Court in front of a judge. For the most serious indictable offences, known as “section 469” or “exclusive jurisdiction” offences, such as murder or treason, you cannot have a bail hearing over the phone and it will take place in the Court King’s Bench automatically. Similarly, for Section 469 offences, you do not have the right to elect a Provincial Court Judge.
Some less serious indictable offences are considered “absolute jurisdiction” or “section 553” offences such as theft or mischief under $5000.00. These crimes are considered to be within the “absolute jurisdiction” of the Provincial Court, as the accused does not have the right to be tried in the Court King’s Bench.
If your indictable charge is in the Court King’s Bench, either because it went there automatically or because it was not resolved in Provincial Court, the charging document is called an “indictment.” This replaces the “information” if your matter was previously in Provincial Court.
If you have hired a lawyer for an indictable offence, you must appear in person with your lawyer unless a “designation of counsel” has been filed. This is a formal document that is signed by both you and your lawyer allowing them to appear in Court on your behalf. If there is no filed designation and you are not personally present, the Court may issue a warrant for your arrest.
Examples of straight indictable offences include murder, aggravated assault, kidnapping and arson.
Most crimes are characterized as “hybrid” or “dual procedure” offences because the severity of the crime depends on the particular facts of each case. For these offences, the Crown Prosecutor decides whether to proceed “summarily” or by “indictment”. For example, a “sexual assault” is very broad and encompasses a wide range of inappropriate behaviour. On the lower end of the spectrum, a sexual assault might be an unwanted kiss. On the other end of the spectrum, there is be non-consensual sexual intercourse. In the former scenario the Crown would likely proceed summarily, and in the latter, by indictment. This is called the Crown’s “election.”
The Crown is required to make their election on the record in Court. This then allows the accused and his or her lawyer to make a decision about the accused’s election. That is, whether to be tried in Provincial Court or in the Court King’s Bench. The available sentences (as described above) will also be governed by the Crown’s election to proceed summarily or by indictment.
In some cases, a Crown may elect to proceed by indictment solely because the offence allegedly occurred more than 12 months prior to the accused being charged. If this is the case, the Crown and defence may consent on the record to the matter proceeding summarily, in order to better reflect the seriousness of the offence.
Until a Crown makes an election on a hybrid offence, the election is deemed to be indictable for the purposes of bail and a police officer’s arrest powers.
Examples of hybrid offences include impaired driving, assault, assault with a weapon, assault causing bodily harm, possession of a controlled substance and sexual assault.
HIRING A LAWYER
Being charged with a criminal offence is serious. Not only are the repercussions life changing and long term, but if you are found guilty of committing an offence the effects can negatively impact your family, career, and future. If you are currently facing criminal charges, it is imperative that you hire a lawyer who understands the various procedural decisions to help protect your future. At Pringle Law our lawyers are recognized for their ability to build solid defenses, conduct thorough investigations, and provide expert advice, including the potential repercussions of being charged with a summary or indictable offence. Contact our office today for a free consultation.