DIFFERENCES BETWEEN SUMMARY VS INDICTABLE AND HYBRID OFFENCES

This article was last updated: Nov. 1st, 2023

Criminal offences in Canada can be classified as summary offences, indictable offences or hybrid offences. The differences between summary vs indictable offences are significant.  Summary offences are less serious and carry a lighter sentence, while indictable offences are more serious and carry a harsher sentence. But the differences do not end there. Also, there are hybrid offences which can be treated as either summary or indictable, depending on the severity of the offence and the wishes of the Crown Prosecutor. It is important to understand the difference between these three types of criminal offences, as it can affect the outcome of your case.

WHAT IS A SUMMARY CONVICTION OFFENCE?

A summary offence is considered a less serious offence and comes with less severe penalties if you are convicted. The term summary comes from the fact that these offences can only be prosecuted summarily – that is, without a jury or indictment. Summary offences are tried in a provincial court by a judge only.

What Types of Crime Are Considered A Summary Offence?

There are a limited number of offences listed in the Criminal Code that can be prosecuted summarily. Some of these include:

• Trespassing At Night
• Unlawful Assembly
• Disturbances in A Public Place
• Soliciting Prostitution
• Public Nudity
• Breach of Non-Publication in Jury Trial

Penalty For A Summary Offence

The penalties for a summary offence are also less severe, with a maximum fine of $5000 and or imprisonment of not more than two years, and you will serve the jail term in a provincial institution.  Summary convictions also must be charged within 12 months after the crime was committed.

For a summary offence, you usually do not need to appear in court if you have a lawyer appearing on your behalf, but the judge may order you to be present in some cases. In many cases, you do not have to have your fingerprints taken if you are charged with a summary offence.

WHAT IS A INDICTABLE OFFENCE?

An indictable offence in Canada is considered a more serious crime and carries more significant penalties if you are convicted. Indictable offences can be tried by a judge or by a judge and jury. In some cases, those accused of an indictable offence can be eligible for a preliminary hearing.

There is no limitation for indictable offences, so a person can be charged at any time after the crime was committed.

Definition of Indictable Offence

The Oxford Reference Dictionary has the definistion of Indictable Offences as an offence that may be tried on indictment. The most serious common-law offences are indictable (for example murder, sexual assault, aggravated assault) and many of these criminal offences are created by statute. When a statute creates an offence without specifying how it is to be tried, it is automatically an indictable offence. In Ontario the most serious indictable offences may tired in either the Ontario Court of Justice or Superior Court of Justice.

Examples of an Indictable Offence

Indictable offences are considered the most severe types of crimes and include murder, treason, hijacking, breaking and entering to steal a firearm and kidnapping. The most serious offences, called section 469 of the criminal code, include murder and treason. For these offences, your bail hearing will take place in the Court of the Queen’s Bench, and you cannot choose to have your case heard by a Provincial Court Judge.

Penalties for Indictable Offences

The punishment for an indictable offence is two years up to life in prison. If the sentence is greater than two years, it will be served in federal prison. For most indictable offences, Canada, apart from those in section 469, you can choose to have your bail hearing over the phone. You can also choose to have your trial heard by a judge alone or a judge and jury.

WHAT ARE HYBRID OFFENCES?

“What is a hybrid offence” is a question often asked by clients. Many crimes are characterized in the Criminal Code as hybrid offences because the seriousness of the crime often depends on the circumstances and the particular facts of each case. For a hybrid offence, the Crown can choose or “elect” to prosecute by summary conviction or as an indictable offence. This choice often depends on the circumstances of the case and the accused’s criminal history.

Is sexual assault a hybrid offence in Canada?

Yes, sexual assault is a hybrid offence in Canada. Many crimes are characterized in very broad terms. A sexual assault can include unwanted touching and also include rape. There are a wide range of sexual assault acts that fall into this criminal offence. Defining these offences as hybrid allows the Crown to consider the facts of the case before proceeding summarily or by indictment. With a sexual assault the Crown will consider the severity of the sexual act before deciding to elect to proceed by summary offence or by indictment offence.

Like with an indictable offence, there is no statute of limitations hybrid offences.

Examples of a Hybrid Offence include:

• Impaired driving
• Assault
• assault with a weapon
• sexual assault
• possession of a controlled substance

If you are facing criminal charges, it is essential to get in touch with an experienced criminal lawyer who can help you understand the details of your case and get you the best result possible. William Jaksa has over ten years of experience helping those accused of summary and indictable offences. Contact him today for a consultation on your case.