As a regular reader of our blog, you’ve undoubtedly noticed that we usually reference crimes categorized “indictable” or “summary conviction” offences, sometimes both. If you’re a careful reader, you’ve likely picked up on the fact that indictable offences carry much more severe penalties than summary conviction ones. But why the different categories, and what else differentiates indictable and summary conviction offences?
Who better to ask than an experienced criminal defence lawyer? And those of the Greater Toronto Area’s Mass Tsang can certainly provide you with the answer. Read on to learn the differences between indictable, summary conviction, and hybrid offences in Canada’s legal system.
Canada’s Criminal Code is the primary legal framework that guides police and the courts in prosecuting criminal law. It defines thousands of criminal offences, lists their penalties upon conviction, and provides guidance on evidentiary and procedural matters where needed for specific offences.
When describing the punishment for a distinct crime, the Code references it as an indictable or summary conviction offence before listing punishment parameters. These parameters can include maximum and minimum penalties, repeat offender penalties, and other guidelines. The Code references some crimes as both indictable and summary conviction offences, with two tiers of potential penalties. The courts call these crimes hybrid offences.
For an example of how this works, let’s look at the punishment for driving under the influence (DUI) as cited in Section 320.19 (1):
“Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days; or
an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,
(i) for a first offence, a fine of $1,000,
(ii) for a second offence, imprisonment for a term of 30 days, and
(iii) for each subsequent offence, imprisonment for a term of 120 days.”
Summary conviction offences are the least serious crimes listed in the Code and usually carry lower penalties than indictable offences. Known as misdemeanors in the U.S., summary conviction offences typically include petty crimes like disorderly conduct, vandalism, minor drug possession, trespassing, and shoplifting. While some lower-level crimes are solely categorized as summary conviction offences, many are also classified as indictable, making them hybrid offences.
The maximum penalties for any summary conviction offence are two years less a day of imprisonment and/or a $5,000 fine. Some summary conviction offences have lower maximum prison terms and some only penalize with a fine.
In general, those charged with summary conviction offences are not fingerprinted by police and are usually released without needing a bail hearing. These offences are charged summarily without indictment and tried in provincial court before a judge, not a jury. Any appeals of a conviction are held before the jurisdiction’s superior court instead of the court of appeal. In what’s known as a statute of limitations, police and prosecutors have one year from the offence date to charge someone with a summary conviction offence.
Crimes that cause significant financial damage, physical harm, violence, the potential for violence, or disruption to society tend to be solely categorized as indictable offences. This category carries a maximum sentence of life imprisonment, and some of the offences include mandatory minimum punishments, whether a prison term or a fine. However, minimum sentences are not included with some indictable offences, leaving the level of punishment totally up to the judge’s discretion.
Those charged with indictable offences face a much greater likelihood of being fingerprinted and held until a bail hearing, especially if the crime was violent or caused significant financial damages. Indictable offence defendants have the option to have their case heard in provincial court before a judge or in superior court before a judge alone or a jury. However, some offences — like murder — only allow judge-alone trials with the Crown’s consent. There is no statute of limitations with indictable offences, giving police and prosecutors unlimited time to lay charges after an offence has been committed.
The Criminal Code categorized most crimes as hybrid, giving Crown prosecutors the discretion to proceed by more severe indictment or summary conviction. The Crown’s decision is based on numerous factors, including the seriousness of the crime, the defendant’s criminal history, the complexity of the case, the availability of court resources, and the public interest in securing a severe penalty.
The hybrid offence category benefits the Crown (and defendants) by providing them more leeway in securing a suitable punishment for the crime. Take, for example, sexual assault, which covers everything from unwanted touching to rape. If it were solely an indictable offence, a defendant arrested because they touched someone’s behind would face the same maximum 10-year prison sentence as a rapist. As a hybrid offence, the Crown can proceed summarily to ensure that such a defendant would only face a maximum 18-month prison sentence.
If Ontario police have arrested you on criminal charges, secure the services of a competent criminal defence lawyer as soon as possible, no matter what category of offence. If it’s a summary conviction offence, a skilled defence lawyer may be able to convince the Crown to drop or reduce charges, offer diversion, or agree to another favourable outcome. If it’s an indictable offence, an experienced criminal defence lawyer is indispensable in helping navigate you through the complexities of the legal system to secure the most favourable outcome possible. And, if it’s a hybrid offence, your defence lawyer may be able to persuade the Crown to proceed summarily, which would mark a positive first step in your case.
For top-notch criminal defence in the Greater Toronto Area, turn to the legal team at Mass Tsang, which has a superior record in securing optimal results for thousands of clients. To begin strategizing your criminal defence efforts, contact us for a free initial consultation.
