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Ron Jourard

Toronto, Ontario

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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 offence.

Indictable offences

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.

Hybrid offences

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.

"Super-summary" offences

Some hybrid offences such as impaired driving, uttering death threats, sexual assault, assault with a weapon, and trafficking in LSD 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.

Record Suspensions

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.

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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.

Website of Ron Jourard, criminal lawyer, specializing
in defence of serious road crimes including impaired driving and dangerous driving.

Office address: 3200 Dufferin Street, Suite 504, Toronto, Ontario
M6A 3B2, Canada.
Tel.: (416) 398-6685 or toll free (Canada and U.S.) 1-888-257-0002.

Article Contents
1 Now you're charged, what's next?
2 Should I represent myself?
3 Terms to know
4 Beware lawyers who...
5 Police questioning
6 Summary conviction or indictable?
7 Effect of a criminal record?