Experienced Criminal Lawyers

What is the difference between Summary Conviction and Indictable Offences?

By: Alberta Legal Team

There are two types of offences in Canada. You may have heard the terms felony and misdemeanor, especially if you watch American television. However, in Canada we do not have these designations for offences but instead Canadian law sets out summary conviction offences and indictable offences. It is important to know that some offences are designated as hybrid, meaning that the prosecution will have to choose which designation the offence you have been charged with will be prosecuted.

Summary Conviction Offences Explained

Summary offences are considered less serious. It is important to understand that the Code has only a few straight summary conviction offences. Some examples of straight summary offences include but are not limited: solicitation of prostitution, being found in a common bawdy house, and certain breaches of court orders.

Summary conviction offences have special rules that apply. For example, a six month time limitation period applies. This rule applies if the offence is designated as hybrid but the prosecution then chooses to proceed by summary conviction.  Another example is that if a person is charged under a straight summary offence, the person is not required to provide his/her/they fingerprints or photographs.

The maximum penalty for a summary offence is usually a $5,000 fine and/or six months in jail. Some summary offences have higher maximum sentences. They include breaches of a probation order.

Finally, summary convictions are appealed to the Court of Queen’s Bench or the superior court in the appropriate jurisdiction instead of the Court of Appeal.

Indictable Offences Explained

Indictable offences are considered more serious and more similar to the American concept of a felony matter. These offences include the most serious of criminal offences. Some examples of indictable offences include:

• Murder;
• Treason;
• Sexual Assault with a weapon or causing bodily harm;
• Acts of terrorism;
• Robbery; and
• Trafficking in a controlled substance (drug trafficking).

The above listed are just a few examples of indictable offences in Canada. The sentences for these types of offences are very serious and often carry a potential maximum penalty of life imprisonment. Some indictable offences carry a minimum sentence.

It is important to understand that when a person is charged with these sorts of offences, the person has the right to choose the forum for trial. These choices include:

• Provincial Court;
• Court of Queen’s Bench Judge-Alone; or
• Court of Queen’s Bench Judge & Jury.

In some cases, if the accused chooses to proceed in the Court of Queen’s Bench, the accused must also choose to proceed with a preliminary inquiry or not. It is critical to understand that not everyone who is facing an indictable offence will be entitled to have a preliminary hearing. Additionally, there are a few select criminal offences that although they are indictable, the Provincial Court retains exclusive jurisdiction pursuant to section 553 of the Criminal Code. A few examples include but are not limited to:

• Theft, other than the theft of cattle (not exceeding $5,000);
• Obtaining money or property by false pretences;
• Possession of stolen property;
• Fraud;
• Mischief (in certain circumstances);
• Certain conspiracy or attempt allegations; and
• Certain gaming and gambling related allegations.

Additionally, not every type of offence allows the accused to proceed without a jury unless the prosecutor consents to this mode of trial, for example, in a first-degree murder allegation, the prosecution must consent to have the case heard by judge alone.

Unlike summary offences, there is no limitation period for indictable offences. This means a person could be charged at any time along as there is a sufficient basis for doing so even if a significant time period has elapsed. Indictable offences are generally complicated when it comes to the legal issues including admissible evidence, Charter related issues, and applicable defences. Because the stakes are so high and the very high risk of lengthy prison sentences, retaining an experienced and capable lawyer is clearly the smartest way to start your defence.

If a conviction occurs under an indictable offence in Alberta, the appeal will be heard in the Court of Appeal of Alberta. In every jurisdiction, the appeal must be heard in the appropriate Appellate court of the jurisdiction.

Finally, it is important to understand the Supreme Court of Canada has placed presumptive time tables on each type of offence. Smart and strategic defence lawyers will account for these presumptive time tables when advising you of the appropriate forum for trial as well the diligent lawyer will take certain steps in order to preserve an additional defence that can arise due to this presumed time table.