Indictable Offences vs. Summary Conviction Procedure: the Difference in Plain English


Today we're taking a deep dive into the differences between summary conviction, indictable and hybrid offences in Canada. Understanding this topic is crucial for even the most basic assessment of a criminal case.


In this article we're focusing on the basics. First, I’ll walk you through the process of figuring out whether your charges are summary, indictable or hybrid. Next, we'll use that information to determine the maximum available penalties. And last, we'll take a look at how the distinction between summary and indictable offences can impact the kind of trial you can have.


I still remember when I was taught this subject in first year law school. Despite her years of experience, our law professor frequently paused to double-check her Criminal Code. Was she getting the details right? "The classification of offences," she explained as she stared at her Criminal Code, "is simple, fundamental but deceptively complex."



indictable offence


It's a topic that comes up dozens of times a day in criminal court. You'll understand why as you read on.




Summary Conviction vs. Indictable Offences in a Nutshell



The difference between summary conviction and indictable offences is simple enough on the surface. Before we start our detailed analysis, let’s consider the basics:


  • All crimes are either summary conviction, indictable, or hybrid (i.e. capable of both).

  • Pure summary conviction offences are the least serious offences in the Criminal Code – think public nudity or trespassing at night.

  • Pure indictable offences are the most serious offences in the Criminal Code – think murder, robbery, or extortion.

  • The majority of crimes are actually hybrid – this means the Crown will choose whether to prosecute them by summary conviction procedure or by indictment.


And here's the important bit:


  • Knowing whether a crime is summary conviction or an indictable offence is important for two basic reasons: first, it tells you the maximum available penalty; and second, it tells you what kind of trial you’re entitled to.


There are many other ways that the classification of a crime can impact a case. For example, the status of an offence as summary or indictable can govern, not just the maximum available sentence, but the kinds of sentence that are available (i.e. house arrest). In this way, the classification of offences has a ripple effect throughout the entire criminal process.


In this article we're focusing on the basics. First, I’ll walk you through the process of figuring out whether your charges are summary, indictable or hybrid. Next, we'll use that information to determine the maximum available penalties. And last, we'll take a look at how the distinction between summary and indictable offences can impact the kind of trial you can have.


As always, the information contained in this blog isn’t legal advice. If you're facing criminal charges and need legal advice, talk to my Toronto criminal law firm today.




How to Tell if Your Charge is Summary, Indictable or Hybrid



After a person has been arrested, the police generate an important document called an Information. Think of the Information as the beating heart of your court case. It contains a list of the exact charges you're facing.

An Information packs a lot of other important details, too. It identifies you by name, date of birth, address. In addition to listing the specific charges you’re facing, it provides the date(s) you’re alleged to have committed them. Importantly, the Information also cites the sections of the Criminal Code of Canada that you’re charged under.


It's by reading these these sections that you can tell whether you've been charged with a summary conviction offence, indictable offence, or a hybrid.



By learning to read the Information and looking up the specific offences in the Criminal Code, we can quickly and easily tell if a specific charge is summary conviction, indictable of hybrid. We can then use this knowledge to determine the maximum available penalties, the available mode(s) of trial, and a whole host of other useful information.


Let’s look at an example. Here’s a standard Information containing domestic violence charges. It’s redacted to protect the accused person’s identity.




Criminal Court Information
An Example of a Criminal Court Information



What do we learn from this Information? Well, for one thing we learn that the client is charged in Toronto; that he’s facing two charges; that the offences occurred on different dates; and, lastly, we learn that the first charge is uttering threats and the second is assault with a weapon.


Using our Criminal Code, we can now easily figure out whether these are indictable offences, summary conviction offences, or hybrid. In fact, the Information gives us the very section numbers to look up: uttering threats is set out at s.264.1(1)(a) of the Criminal Code, and assault with a weapon under s.267(a) of the Criminal Code.


Here’s what they look like on the official Government of Canada website:



Uttering Threats Criminal Code
Uttering Threats (Hybrid)

And:


Assault with a Weapon
Assault with a Weapon (Hybrid)


Like most criminal offences, uttering threats and assault with a weapon are hybrid offences. We know this because the Criminal Code clearly states that they are punishable by summary conviction or by indictment. The Code also tells us what the maximum penalty is when the offence is prosecuted by indictment. Simple as that! (We’ll get to what the punishment is for summary conviction procedure later.)




What a Straight Indictable Offence Looks Like



Now let’s look at a straight indictable offence. Here’s what the Criminal Code says about the charge of robbery:



Robbery Criminal Offence Indictable
Robbery is an Indictable Offence


Robbery is a classic straight indictable offence. We know this because the Criminal Code makes no mention at all about summary conviction procedure.


If we read the section carefully, we also learn that robbery has a maximum penalty of life imprisonment; and that certain minimum punishments apply if a firearm was used. Like most indictable offences, robbery is a serious crime with serious penalties.




What a Straight Summary Conviction Offence Looks Like



Now let’s look at an offence on the opposite end of the spectrum. Here’s what can happen if you’re found naked in the wrong place by police:



Nudity Criminal Charge Canada
Nudity is a Straight Summary Conviction Offence


Nudity is a classic summary conviction offence. Once again, we know it’s not a hybrid or an indictable offence because the Code makes no mention of those alternate forms of punishment.


And there you have it! By learning to read the Information and looking up the specific offences in the Criminal Code, we can quickly and easily tell if a specific charge is summary conviction, indictable of hybrid.


preliminary inquiry


Now let's use this knowledge to determine the maximum available penalties, the available mode(s) of trial, and a whole host of other useful information.




The Punishment for Summary and Indictable Offences



Understanding the difference between summary conviction, indictable and hybrid offences is critical if you want to unlock the applicable maximum penalties for any given crime. That’s because the maximum penalty is governed by the classification of of the offence.



i. The Punishment for Indictable Offences



You may have noticed a pattern in the four charges we looked at above. Any time an offence is indictable the maximum penalty is clearly spelled out. Naturally, his also applies if an offence is hybrid and the Crown elects to proceed by indictment.



The difference between summary conviction and indictable offences also unlocks valuable information about the modes of trial you're entitled to.


For example, if the Crown proceeds by indictment uttering threats can land you up to 5 years in jail. If assault with a weapon is treated as an indictable offence you can get up to 10 years in jail. And because robbery is a straight indictable offence, it’s always punishable by up to life in prison.


To figure out the maximum penalty for an indictable offence, therefore, you simply need to look up the section in the Criminal Code and read the provision. Of course, there are other sentencing considerations you’ll want to keep in mind if you’re charged a criminal offence. Speak to an experienced criminal lawyer to get the full picture.




ii. The Punishment for Summary Conviction Offences



Summary conviction offences are different. Unlike the indictable offences we’ve looked at, there is no mention of a specific maximum sentence in the summary offences above. They simply state that you can be found guilty of an “offence punishable by summary conviction.”


Summary conviction offences have a default maximum spelled out at s.787 of the Criminal Code. Here’s the section:






The takeaway? If you’re charged with a straight summary offence, or if you’re charged with a hybrid offence and the Crown has elected to proceed by summary conviction, the maximum penalty is 2 years less a day, a $5,000 fine or both.


As you can see, the maximum penalty for summary offences is considerably lower than their indictable counterparts. For this reason, summary conviction offences are often considered “less serious” than their indictable counterparts.




The Modes of Trial in Summary and Indictable Offences



The difference between summary conviction and indictable offences also unlocks valuable information about the modes of trial you're entitled to. What do I mean by “modes of trial”? Simply put:


  1. Whether you’re entitled to a jury trial;

  2. Whether you’re entitled to a preliminary inquiry – which I’ll explain below; and

  3. Whether you’re entitled to a trial in Superior Court.


In general, the more serious the crime, the more of these choices you get. The majority of straight indictable offences, for example, grant you the right to a jury trial in superior court with the benefit of a preliminary inquiry. On the other hand, simple summary offences are meant to be heard expeditiously in lower court without the right to a jury trial or other enhancements.


Let’s look at this topic in greater detail.



summary conviction offence


i. Trial Rights for Summary Conviction Offences



Summary conviction offences have only one mode of trial. In all all summary conviction matters – including hybrid cases where the Crown has opted to proceed summarily – your trial will be heard the Ontario Court of Justice before a judge sitting without a jury.


Trials in the Ontario Court of Justice are heard by the judges of that level of court. These tend to be expert practitioners of criminal law – men and women who themselves used to be criminal lawyers. Compared to trials in Superior Court (discussed below), trials in the Ontario Court of Justice have the benefit of being faster, cheaper, and heard by Judges who know the criminal law well.



ii. Trial Rights for Indictable Offences



Indictable offences are trickier. Sorting through the available modes of trial for indictable offences – including hybrid offences where the Crown has elected to proceed by indictment – requires a further breakdown of the offence.


Put simply, the Criminal Code divides indictable offences into the least serious indictable offences (i.e. theft, if the Crown proceeds by indictment), the most serious indictable offences (murder) and everything inbetween (the majority of indictable charges). Understanding the exact mode(s) of trial available for your charge, and whether you can benefit from enhancements like a preliminary inquiry, requires a review of several Criminal Code provisions.


Let's simplify the matter this way;



  1. Less Serious Indictable Offences. Section 553 of the Criminal Code. If you’re charged with an offence listed in s.553 of the Criminal Code, you are facing a "less serious" indictable offence. Your trial will be in the Ontario Court of Justice without a preliminary inquiry and without a jury – just like all summary conviction offences.

  2. Most Serious Indictable Offences. Section 469 of the Criminal Code.If you’re charged with an offence listed in s.469 of the Criminal Code (mainly murder), your trial will be in Superior Court. You get all the special enhancements including a preliminary inquiry.

  3. All Other Indictable Offences. If you’re charged with a straight indictable offence, or a hybrid offence where the Crown is proceeding by indictment, chances are your case falls in this category. If so, you get to choose your mode of trial by making what is called an election. At your election, you will be asked to decide whether you want:

  • A trial in the Ontario Court of Justice before a judge alone (just like a summary conviction trial)

  • A trial in the Superior Court of Justice before a judge alone; or

  • A trial in the Superior Court of Justice before a judge and jury.



If you are able to elect your mode of trial, your criminal lawyer will walk you through the pros and cons of each option. Some of the main factors you'll want to consider before making your election are: cost, delay, tactical advantages from proceeding in one level of court or another, and whether you have the right to a preliminary inquiry.



iii. Indictable Offences and the Right to a Preliminary Inquiry



The right to a preliminary inquiry is the last stop in our analysis of summary conviction, indictable and hybrid offences. What is a preliminary inquiry? Put simply, it is an opportunity to hear and appreciate the evidence against you in a live court setting, but without leading to a verdict of guilty or not guilty.


Preliminary inquiries often look just like a trial, with real witness testimony, the presence of a judge and lawyers arguing back and forth. Importantly, though, the central question is not whether you committed the crime, but whether the Crown has enough evidence to force you to go to trial in Superior Court. We call this issue "committal" in criminal law.


When used correctly, preliminary inquiries presents an invaluable opportunity to explore evidence, commit witnesses to a version of events, and set up future arguments in the course of a case. Only certain indictable offences are eligible for a preliminary inquiry. This includes all indictable offences which carry a maximum penalty of 14 years or more.








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