What is the Difference Between Summary and Indictable Offences?

The Criminal Code of Canada and additional acts, such as the Controlled Drugs and Substances Act, categorize criminal offences into three categories: “summary,” “indictable,” and “hybrid.” Understanding the differences between these offences is critical when facing criminal charges as they determine how they are tried and have very different consequences.

This blog will examine summary, indictable and hybrid offences, highlight their differences, and show potential punishments and legal implications. Generally, summary offences are less serious in terms of the severity of the crime and sentence, and indictable offences cover more serious crimes with more severe sentences. With hybrid offences, the decision of whether to proceed summarily or by indictment lies with the Crown and depends on the type and severity of the crime. So, what is the difference between summary and indictable offences?

Hybrid Offences

As the name suggests, hybrid offences straddle the line between summary and indictable offences, as the crime’s severity depends on each case’s specific facts. The Crown prosecutor will decide whether to proceed summarily or by indictment in these cases. The Crown’s “election” happens in court on the record, allowing the accused and their lawyer to decide about the accused’s election, which is whether to be tried in provincial court or the Superior Court. 

For a summary offence, the police have 12 months to lay charges. If the offence allegedly occurred more than 12 months prior, the Crown and defence may consent to proceed summarily. Until the Crown makes this election, it is deemed indictable for 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.

Differences Between Summary and Indictable Offences at a Glance

Punishment for Summary and Indictable Offences

The type of offence will determine the maximum sentence, so understanding the difference between a summary and an indictable offence is critical.

Punishment for Indictable Offences

As mentioned above, indictable offences are more serious and carry more severe sentences. The maximum penalty can be up to life imprisonment (as per the section) and any imposed monetary fines also will be significantly more substantial.

It is important to note that if you are convicted of an indictable offence and given a prison sentence of less than two years, it will be served at a provincial institution. Any two years or greater punishment will be served in a federal prison.

The same sentencing guidelines apply to hybrid offences when the Crown elects to proceed by indictment.

Punishment for Summary Offences

Summary offences are handled differently. As opposed to an indictable offence, where the Criminal Code of Canada specifies maximum sentences per type of offence, s.787 gives a general statement:

Punishment

General penalty

787 (1) Unless otherwise provided by law, every person who is convicted of an offence punishable on summary conviction is liable to a fine of not more than $5,000 or to a term of imprisonment of not more than two years less a day, or to both.

So, in other words, the sentencing in the case of a summary conviction is considerably less severe than for an indictable offence. As the maximum sentence is two years less a day, a conviction means you will serve your prison sentence in a provincial institution.

Legal Implications

Just like a summary and an indictable conviction carry very different sentences, they also have very different legal implications regarding procedure and trial modes.

The three modes of trial are:

• Trial by judge alone in the Ontario Court of Justice
• Trial by judge alone in the Superior Court of Justice (with or without a preliminary inquiry, if the offence is prelim eligible) 
• Trial by judge and jury in the Superior Court of Justice (with or without a preliminary inquiry, if the offence is prelim eligible) 

Summary convictions, including hybrid cases where the Crown has elected to proceed summarily, only have one mode of trial before a judge in the Ontario Court of Justice without a jury or a preliminary inquiry.

If you are charged with an offence listed in s.469 of the Criminal Code of Canada, your trial will be in Superior Court. 

If you are charged with a straight indictable offence or a hybrid offence where the Crown has elected to proceed by indictment, you will have the choice of trial mode:

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

The services of an experienced criminal defence lawyer are invaluable in reviewing your case and determining which trial mode would be the most beneficial for you. There are several factors to consider, such as strategy, cost, time, tactical advantages from proceeding in one level of court over another, and whether you have the right to a preliminary inquiry.

Finally, what is a preliminary inquiry? It is an opportunity to hear and evaluate the evidence against you in court, but without leading to a verdict of guilty or not guilty. A preliminary inquiry looks a lot like a trial, with actual witness testimony, a judge, and lawyers arguing. Still, the purpose of an inquiry is not to determine whether you are guilty but whether the Crown has enough evidence to proceed to trial in the Superior Court.

A preliminary inquiry can be a valuable opportunity to explore evidence, commit witnesses to a version of events and set up future arguments. It is important to note that only certain indictable offences are eligible for a preliminary inquiry, including all indictable offences with a maximum sentence of 14 years or more.

Examples of Summary Offences

Summary conviction offences cover the less severe side of the criminal spectrum. Typically, they are handled relatively quickly.

Examples of summary conviction offences can include the following:

Theft under $5,000

Petty theft refers to taking someone else’s property, but only smaller value items. Shoplifting of small, inexpensive items from a store is one example of this offence. Although this is a hybrid offence, in less serious cases, the Crown Attorney will generally elect to proceed summarily. 

Minor Drug Possession

Possession of small quantities of certain drugs for personal use might be considered a summary offence, but the classification can vary significantly depending on the type of drug. This is another hybrid offence in which the Crown must elect but in less serious cases, the federal Crown Attorney will generally elect summarily. 

Causing a Disturbance

If you are in a public place, whether a night club, a shopping mall or a restaurant, and you engage in disorderly conduct such as fighting, screaming, insulting people or using obscene language, you could be charged with causing a disturbance. 

Trespassing at Night

This criminal offence involves a person loitering or prowling near a residential dwelling at nighttime. It is important to note that “night” is defined as 9:00 PM to 6:00 AM.

Solicitation

It is deemed a criminal act under section 213 (1.1) of the Criminal Code to converse with any individual – for the purpose of offering or providing sexual services for a fee – in a public space, or in any place visible to the public, that is situated close to a school area, playground, or childcare centre.

Examples of Indictable Offences

Sitting on the other end of the criminal law spectrum, indictable offences cover more serious crimes that can result in more severe punishment. Common examples of indictable offences are:

Murder

The most severe and well-known indictable charge, murder, is defined as the intentional killing of another person, which can be further broken down into first- and second-degree murder and manslaughter, with their own sets of potential penalties. Culpable homicide is one of the most serious indictable offences.

Read more: What is Culpable Homicide?

Aggravated Assault

Aggravated assault is the most serious form of assault where the perpetrator intentionally causes grievous bodily harm, leading to permanent disfigurement or life-threatening injuries. It also is considered one of the most indictable offences.

Read more: Assault vs. Assault Causing Bodily Harm and Aggravated Assault.

Kidnapping

Kidnapping involves forcibly seizing and detaining a person against their will, often involving threats or force. These cases can range from parental abduction to cases involving ransom demands.

Robbery

Robbery is another straight indictable offence and is considered a serious crime with equally serious penalties. It involves the use of violence or threats of violence in the course of, and for the purpose of, taking another person’s property. The Criminal Code of Canada does not make any mention of the summary conviction procedure. 

Depending on if a firearm was used to commit robbery and if it has been the first or a subsequence offence, penalties range from 5 years to imprisonment for life.

Arson

Arson is defined as deliberately setting fire to a property, regardless of whether you own it yourself or not, for a malicious purpose. Arson can involve buildings, vehicles, land and other property types.

Just like the offences are more serious, the consequences of a guilty verdict are more severe than summary convictions. Typically, they include lengthy prison sentences (up to life imprisonment), severe fines or both.

Benefits of Hiring a Criminal Defence Lawyer

Having an experienced criminal defence lawyer is invaluable when facing a criminal charge. Understanding the type of offence you are charged with and the options and potential consequences is critical for a robust criminal defence strategy.

Farjoud Law has an outstanding track record defending clients charged with criminal offences. We are dedicated to professionalism, client services and passionate advocacy. 

If you or a loved one have been charged with a criminal offence, do not hesitate to call Farjoud Law at 647-606-6776 to speak directly to a criminal defence lawyer who personally answers all calls 24 hours/day – 7 days/week or fill out our convenient online form.