What's the difference between a indictable and summary conviction offence in Canadian law?

Under the Criminal Code of Canada, there are three types of offences: summary conviction offences, indictable offences, and those offences where the Crown may elect to proceed by summary conviction or by indictment.  Crown-electable offences are often referred to as "hybrid offences".  The simplest explanation of the difference between summary conviction offences and indictable offences is that the former is less serious than the latter.   

Summary Conviction Offences

Summary conviction offences include the least serious offences under the Criminal Code of Canada.  Relatively speaking to the number of offences under the Criminal Code, there are actually very few pure summary conviction offences.  Those pure summary conviction offences include: possession of marijuana under 30 grams, solicitation of prostitution,  being found in a common bawdy house, etc.

There are unique aspects that apply to summary conviction offences that do not apply to indictable offences.  For example, a six month limitation period applies to all  summary conviction offences or if the crown chooses to proceed by summary conviction.  Another unique aspect to summary conviction offences is that a person charged with a pure summary conviction offence (not hybrid) is not required to submit their fingerprints with police upon or after arrest or conviction. Summary conviction offences are appealed in the Superior Court of the relevant jurisdiction, and not directly to the Court of Appeal.  In Ontario, those appeals take place in the Ontario Superior Court of Justice.  Summary conviction offences generally carry a maximum penalty of six months in jail, although some electable offences have a maximum of eighteen months in jail (e.g. assault causing bodily harm, assault with a weapon, forcible confinement, sexual assault).  A person is not entitled to a jury trial or to have their case heard in the Superior Court of Justice, unless it is being heard alongside an indictable offence at the same time. 

Indictable Offences

Indictable offences are the most serious of criminal offences and would include murder, acts of terrorism, robbery, drug trafficking, robbery, treason, certain types of sexual assault, and other very serious criminal acts.  As one could imagine, the sentences for these types of offences are very serious and often carry a potential maximum penalty of life imprisonment.  Anyone charged with these sorts of offences usually has the right to choose their mode of trial: judge alone in Provincial Court without a preliminary hearing, judge alone in Superior Court with or without a preliminary hearing, or a jury trial with or without a preliminary hearing.  However, not everyone who is facing an indictable offence is entitled to a preliminary hearing or a judge and jury trial (those exceptions are set out in section 553 of the Criminal Code).  Similarly, not every type of offence permits the accused to elect to have a judge without a jury unless the prosecutor consents (for example, in first-degree murder the Crown must consent to have the case heard by a judge alone). 

There is no limitation period for indictable offences and a person can be charged, tried, acquitted or convicted at any time the police wish to proceed with the charges provided there is a sufficient basis for doing so. 

Usually indictable offences very complicated with serious consequences.  Although it is never a wise choice to defend allegations without the assistance of a lawyer, doing so when facing an indictable offence is reckless.  Appeals for indictable offences are heard by the Court of Appeal for the Province the case was heard. 

Hybrid Offences

Hybrid offences are those offences where the Crown may choose to proceed by either indictment or summary conviction.  These types of offences cover the majority of Criminal Code of Canada offences.  The include, but are not limited to: assault, sexual assault, fraud under $5000.00, theft under $5000.00, assault with a weapon, assault causing bodily harm, possession of cocaine (simple possession), and many more. 

The decision by the Crown to proceed by way of indictment or summary conviction is a discretionary one that is not subject to review by any court (unless there was a deliberate abuse of process which would be exceptionally rare and very difficult to demonstrate).  In assessing whether or not to proceed by indictment or summary conviction, a Crown would consider factors that may include:  the seriousness of the allegations (for example, "sexual assault" can include either touching or full intercourse), the accused's prior criminal record, the notoriety of the case in the community, the availability of court resources, whether the offence is sworn outside the limitation period for a summary conviction, the complexity of the case, and any other relevant considerations. 

If you wish to lean more, please visit www.criminallawyerintoronto.ca or call (416) 220-0413 to discuss these or any other issues relating to criminal law. 

What happens on the first day of criminal court in the Ontario Court of Justice?

Old City Hall, Toronto

Generally speaking, the first day in the Ontario Court of Justice is not your trial date - it is an administrative appearance for the purposes of understanding what the charges are, to obtain disclosure, and to advise the Court of your intentions in retaining a lawyer.  

After a person is charged with a criminal offence, a person is either released by police unconditionally, released by police with conditions (an undertaking to a peace officer or officer in charge) or they are taken for a bail hearing where the person is released by the Court or held in custody.  After this has taken place, an accused person is provided a date in Court, typically known as a "first appearance" court date.

On this initial appearance there are a number of events that are expected to happen: First, the Crown is expected to provide "disclosure" to the accused.  "Disclosure" is the evidence  the Crown and police have in their possession that they intend to rely upon to prosecute the case.  This assists the accused and the accused's lawyer in better understanding the case against them so that they make informed decisions about how to proceed with the case.  Second, if the accused has retained a lawyer, that lawyer should attend to inform the Court that they are now prepared to go "on the record" as the individual's counsel.  If the person does not have a lawyer, they are expected to  advise the Court of their intentions to do so, or whether they wish to represent themselves.  

Although unusual, and likely an unwise decision at this early stage, It is possible that a person could have their charges traversed before a judge on the first appearance in Court to plead guilty if they so wished.   The reason that this would be unusual is because a person would typically want the assistance of counsel to thoroughly reviewed the disclosure, advise the client on the merits and weaknesses of the case, and to negotiate with the Crown to obtain  the best possible resolution in the circumstances (often referred to as a "plea bargain").   Since all of these steps would be difficult to achieve on the first appearance, most counsel will seek to adjourn the matter to complete all these steps diligently and to obtain materials (such as job, reference, or doctors letters) that may assist in mitigating the sentence against the individual who wishes to plead guilty.  In Ontario, a person is not expected to enter a plea of "not-guilty" on the first appearance and is typically is not asked to do so until that individual is arraigned at the trial date.  It is very easy to change a plea of not-guilty to guilty; the converse is very difficult. 

After the Court addresses the matter, and assuming the person does not want to plead guilty at this early stage, the case will be adjourned for several weeks so that the person charged may: a) review disclosure, or obtain disclosure on the next occasion if not already provided, b) retain and obtain advice from counsel, c) apply for Legal Aid if necessary, d) have their lawyer speak to the Crown Attorney about the case for the purpose of resolution or trial discussions, or, e) any other purpose that the situation may require. 

To recap: unless a person intends to plead guilty immediately, the first day in Court is an administrative appearance - it is not a trial date.  No evidence is called, no plea is entered, and there is nothing to be overly concerned about.   Although not strictly necessary, obtaining legal counsel prior to this appearance is a very prudent action as they can assist in all aspects described above and can ensure that all of your rights are protected and your questions answered.  

Here are a list of many of the "first appearance" Courts in the Greater Toronto area: 

60 Queen St. W., Old City Hall, Toronto: Courtroom 111

444 Yonge St., College Park, Toronto: Courtroom 505

1911 Eglinton Avenue, Scarborough: Courtroom 407

1911 Eglinton Avenue, Scarborough (Youth Court): Courtroom 408

311 Jarvis Ave., Toronto (Youth Court): Courtroom 1

2201 Finch Ave. W., Etobicoke: Courtroom 202

2201 Finch Ave. W., Etobicoke: Courtroom 407

Visit our website at www.robichaudlaw.ca or call 416.220.0413 for more information on how to approach criminal charges or to speak to a criminal lawyer.  

Election Canada 2011 | Party Policies on Justice and Law

The 2011 Canadian election is quickly approaching with the race turning into a closer contest day by day.  Keeping in line with the theme of this blog, I thought it would make sense to post the head note and link to each party's policy on legal issues surrounding crime and justice.  I should add it is also interesting to note how each party titles the issue on each of their websites.

Liberal Party of Canada: "Justice and Public Safety":

The Liberal Party has a strong record on reducing crime. We believe in tough sentences for serious crimes. But unlike the Conservatives, Liberals don’t think the solution is to spend billions on US-style mega-prisons that will only produce more hardened criminals.  Meanwhile, the Conservatives have cut funding for crime prevention and victims programs and broken their promise to hire 2500 more police officers.

The New Democratic Party: Not listed in "Platform"

Oddly, there is nothing listed in the NDP platform about this issue.  If I come across it, or if someone from the NDP let's me know, I will be sure to update immediately.  I do believe that they still support the legalization of marijuana, so that's something relevant I guess. 

Conservative Party of Canada: "PM highlights important legislation on becoming law"

Prime Minister Stephen Harper today highlighted new pieces of legislation, which became law. 

“Our Government is committed to supporting families and communities,” said the Prime Minister. “Over the past five years, our Government has taken action to make our streets and communities safer and to protect Canadian consumers. We have taken the right action and we have delivered.”   

And what would a blog be without an opinion, so here it is:

Keep in mind when voting this year that law and justice is not simply about punishing every offender as harshly as possible and criminalizing immoral, as opposed to harmful activity - i.e. marijuana use, prostitution, etc.  It is very easy to implement policies that are "tough on crime" (whatever that means) but is quite difficult to be just, proportionate, and cognizant of what is best for society's long-term benefit.

It is the difference between a parent who lashes out harshly to a child who has done wrong assuming that their punishment will "set them straight", and a parent who understands that there is nothing wrong with punishing wrong doings, but with an intent to learn right from wrong on their own volition.   Fear of punishment alone will never stop crime; opportunity, strong morality, and optimism for the future will.

The societal benefits in spending billions of dollars on jails pales in comparison to the benefits derived from spending that money on things like jobs, programs, and most importantly child care: almost every person who comes before the criminal courts is the product of a neglected childhood.  For example, with the benefit of a national child care plan, those parents could be at home teaching their children right from wrong, instead of working to pay for the prisons they may end up in because of neglect.

Providing full due process, meaningful and discretionary sentencing by well trained jurists, and the means for a person to reintegrate into society is not being soft on crime, its being smart.   No matter how "tough" one may get on crime, it will never quell irrational fears; however, the smarter we get on crime, the less we have to rationally fear.