Distinguishing Hybrid and Indictable Offences

All of the offences such as break and enter, sexual assault etc in the Criminal Code of Canada can be classified as summary, indictable or hybrid. The classification of an offence generally tells us how serious the offence is and what types of punishments are available to the Crown. As criminal defence lawyers operating in the city of Toronto we routinely deal with all three types of offences. If you are accused of a crime, it is useful to understand the differences between these three categories of offences to better understand the charge against you.

Summary Offences

Summary offences are minor offences which, by law, carry relatively lenient penalties. According to section 787 of the Criminal Code of Canada, summary conviction offences can be punished by a maximum of six months imprisonment, a fine of $2000, or both. Some examples of summary offences are causing a disturbance; making harassing telephone calls, taking a motor vehicle without the owner’s consent, trespassing, and communicating to obtain the services of a prostitute.

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Indictable Offences

Indictable offences are considered more serious than summary offences. Indictable offences can carry serious fines and jail time up to life imprisonment.  There are three types of indictable offences.

• Section 553 Offences These are less serious indictable offences.  They are always heard in provincial court by a judge alone. In Toronto, provincial courts include Old City Hall, 2201 Finch Street West, 1000 Finch Street West and College Park. These offences carry a maximum penalty of 2 years imprisonment. Some examples are breach of recognizance, theft under $5000, failure to comply with a probation order, etc.
• Section 561 Offences These are moderately serious offences. If you are charged with a s. 561 offence, you have the right to choose whether the case will be heard in provincial or superior court and whether or not it will be heard by a jury. In Toronto, Superior Court is located at 361 University Avenue. Section 561 offences carry a maximum penalty of 14 years, although sentences are more often in the 5 to 10 year range. Some examples are sexual assault with a weapon, fraud over $5000, theft over $5000, arson, and robbery.
• Section 469 Offences These are the most serious types of offences in the criminal justice system. They are always tried in Superior Court by a judge and jury. Moreover, they carry a maximum penalty of life in prison. Some examples are: first degree murder, second degree murder, manslaughter, hijacking, kidnapping, and hostage taking.

Hybrid Offences

Many offences in the criminal code may be prosecuted as a summary offence or as an indictable offence. These are known as hybrid offences. If you are charged with a hybrid offence, at some point in the pre-trial process the Crown will be called upon to decide whether they are going to proceed summarily or by indictment. This decision is referred to as a “Crown Election”. If the Crown chooses to elect summarily, the offence will be treated as a summary offence for all practical purposes (and vice versa if the Crown chooses to proceed by indictment). Some examples of hybrid offences are sexual assault, sexual interference, and simple assault. Although these offences are called hybrid offences at the beginning of the trial process, at some point the Crown will choose to proceed summarily or by indictment. Thus, by the time these charges are dealt with (by plea, trial, or the like) they will always be designated as either summary or indictable and treated as such. The main difference between an election to proceed summarily and an election to proceed by indictment is that more severe penalties attach to indictable offences.

Procedural Differences

There are some procedural differences between how the criminal justice system proceeds with summary offences and how it proceeds with indictable offences, other than the different penalties each type carries.

• Arrest the police can arrest an individual for a summary offence without a warrant. However, if they arrest an individual for an indictable offence, the police require a warrant signed by a judge.
• Grounds for Arrest the police must observe the individual committing the offence to arrest for a summary offence. To arrest for an indictable offence, the police need only “reasonable and probable grounds” to believe that the individual they are arresting committed an indictable offence.
• Charge The accused must be charged with a summary offence within 6 months of the date the offence was allegedly committed.
  There is no time limit on when an individual may be charged with an indictable offence and individuals are frequently charged years after the offence was actually committed. This is often the case with sexual interference charges, as victims tend to come forward when they are more able to understand the nature of what happened to them. There is one exception; the Criminal Code provides that an individual cannot be charged with treason once three years have passed since the date of the alleged offence.
• Fingerprints An individual charged with a summary offence does not have to provide the police with fingerprints. If you are charged with an indictable offence, you will have to provide a copy of your fingerprints to the police.
• Trial Those charged with a summary offence who proceed to trial will be tried by a judge alone and cannot choose to be tried by judge and jury. The charge will likely be heard in a provincial court.
  An individual charged with an indictable offence may elect to be tried by a judge alone in a provincial court, by judge alone in a superior court, or by judge and jury in a superior court. There are some indictable offences to which the right to be tried by jury does not attach. These include: Theft Under $5000, Mischief Under $5000 and Fraud Under $5000.
• Pardons An individual convicted of a summary offence may apply for a pardon after 3 years from the expiry of their sentence, whereas those convicted of an indictable offence must wait 5 years before applying for a pardon.