There is a lot of misunderstanding in Canada concering the different kinds of criminal offfences that people commit. The following post will clearly explain what the terms summary offence and indictable offence actually mean.
Why have I never heard of this?
Canadian criminal justice terminology is different from the United States. Unfortunately, thanks to TV shows like Law and Order plus a countless number of other American crime shows, Canadians tend to be more familiar with justice terminology from south of the border.
The corresponding Americans terms are Misdemeanor and Felony. It is impossible to be arrested, charged, or convicted of a misdemeanor or felony in Canada. This only exists in the United States.
What’s the difference between a summary and an indictable offence?
In the simplest terms a summary offence (misdemeanor) is a criminal offence that is considered less serious. However there are some key points that distinguish how summary offences are handled by both the police and the courts. For example:
- Accused must be charged with the crime less than 6 months after the act occured
- Summary offences will be tried in Provincial court
- Accused does not need to submit fingerprints (note that we often see fingerprints taken for summary offences)
An indictable offence (felony) is a charge that is considered more serious. Key points:
- No time limit for when accused can be charged
- MUST submit fingerprints
What is a hybrid offence?
Many offences in the Criminal Code of Canada are considered hybrid offences. This is because there are circumstance that affect how serious the crime was.
For example an assault charge can be anything from accidentally bumping someone in a crowd to physically injuring someone in a fight. Obviously these are not the same thing and yet they both fall under the same criminal offence of assault. In cases like these it will be up to the prosecutor to decide if the offence warrants a summary or indictable conviction.
How does the Prosecutor decide whether a charge is summary of indictable?
How to proceed on a hybrid offence is left up to the sole discretion of the prosecutor so it is not unreasonable to assume that two identical offences could result in one person being charged summarily while the next was charged by indictment. It is up to the prosecutor to evaluate the seriousness of the incident and the level of harm that was caused to the victim.
What difference does it make if I was charged by summary of indictment?
The biggest difference is the sentencing. Summary offences will tend to carry a much lighter sentence than an indictable offence. For example, it is very rare for someone to serve any jail time when convicted of a summary offence. Most jail sentences will be given to people convicted of indictable offences; although there are many indictable convictions that will not result in a jail sentence.
Common sentencing for Summary offences
- Fine
- Probation
- Restitution
Common sentencing for Summary offences
- Jail time under two years
- Jail time over two years
- House arrest
How does a summary of indictable offence affect my criminal record?
Both a summary of indictable conviction in Canada will result in a criminal record that will remain active until you apply for pardon. To do so you will need to submit an application to the Parole Board of Canada and you will need to prove that you have met the eligibility criteria before the Board will grant your pardon and then seal your criminal record.
- The waiting period for becoming eligible for a pardon in Canada for a summary offence is currently 5 years.
- The waiting period for becoming eligible for a pardon in Canada for an indictable offence is currently 10 years.
There are some inconsistencies in this due to legislation that was introduced in 2012 by the Conservative government of Canada.