Print this article
Summary conviction or indictable?
Summary conviction offences
Summary conviction offences encompass
the most minor offences in the Criminal Code. Examples are
"cause disturbance" and "harassing telephone calls."
Unless a different penalty is specified, summary
conviction offences are punishable by a fine of up to $5,000 or
six months' jail or both.
You cannot be fingerprinted for a summary conviction
An indictable offence is more serious than a
summary conviction offence. Conviction of an indictable offence
exposes you to greater penalties.
If you are prosecuted by indictment, you are
entitled to trial by jury for most offences. You do not have the
right to trial by jury if you are tried by indictment for offences
such as Drive Disqualified (i.e., driving while prohibited as
a result of a conviction for impaired driving), Theft Under $5,000,
Fraud Under $5,000, or Mischief Under $5,000.
Many offences can be prosecuted either by summary
conviction or indictment. The Crown chooses or elects the mode
of prosecution. Such offences are referred to as "hybrid"
(or "Crown option" or "dual procedure"). Hybrid
offences include impaired driving, assault and theft under $5,000.
Hybrid offences are considered indictable until the Crown makes
its election. As fingerprinting occurs before the Crown selects the mode of prosecution, you will be fingerprinted for a hybrid offence even if it is prosecuted summarily.
Some hybrid offences such as impaired driving, uttering death threats, sexual assault, and assault with a weapon are punishable on summary conviction by up to 18 months' jail. Paralegals are not allowed to represent you at trial on such charges. Under section 802.1 of the Criminal Code, unless the defendant is a corporation, paralegals can act only in respect to charges with a potential jail penalty of up to six months.
Not unique to Canada
Hybrid offences are not unique to Canada. Elsewhere, however, the mode of proceedings is generally not determined by the prosecutor. In England and Wales, for example, it is the presiding magistrate who decides. And in certain Australian states, the accused may apply to be tried summarily, subject to the consent of the Crown.
If as an adult you are convicted of an offence that is
prosecuted by summary
conviction, you are eligible for a record suspension (formerly known as a pardon) five years from the
time you complete your sentence (e.g., payment of fine or restitution,
completion of probation). Following conviction of an indictable
offence, you must wait 10 years before eligibility. The waiting periods were increased from three and five years, respectively, by 2012 amendments to the Criminal Records Act. Also under the amendments, enacted as part of the Harper government's "tough on crime" agenda, you cannot obtain a record suspension if you have been convicted of a sexual offence involving a child or more than three offences prosecuted by indictment each with a prison sentence of two years or more.
Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.