When someone is charged with a criminal offence, it will be either a summary or an indictable offence. The category of criminal offence affects everything from the way your case is handled to the penalties to the long-term consequences for the offender. Whatever you know about the criminal justice system hinges largely on whether the crime is charged as a summary vs indictable offence.
What are the differences, and why does it matter for your case? Can you do anything to lower a charge to a summary offence from an indictable one?
Summary Offences
When you are facing criminal charges, knowing the summary versus indictable offence differences will help you prepare for what comes next.
If you are charged with a summary offence, you can expect a shorter process with lighter penalties. However, you should take these charges seriously because the outcome of your case can vary significantly based on how early you hire a criminal lawyer, your conduct during the proceedings, and your willingness to address any issues that may have led to the criminal activity.
What Is a Summary Offence?
A summary vs an indictable offence is considered less serious under Canadian law. Common examples of summary offences are:
- Causing a disturbance.
- Soliciting prostitution.
- Simple assault.
- Theft under $5000 (often referred to as “theft under”).
- Minor cases of possession of a forged document.
- Some cases of impersonating a police officer.
- Failing to appear in court.
- Some impaired driving offences.
What Are the Penalties for a Summary Offence?
A summary offence typically has a maximum penalty of two years less a day in jail and/or a $5000 fine. Some offences have lighter fines; for example, possession of a Schedule 1 substance has a maximum penalty of $1000 and/or six months in jail.
How Does Summary Offence Prosecution Work?
With a summary prosecution, the process is generally faster than prosecution for an indictment. Here are the key characteristics:
- Cases are tried before a judge only.
- The defendant can not request a jury trial.
- There is no preliminary inquiry. A preliminary inquiry is a hearing that determines if there is enough evidence for the case to go to trial.
- The police must lay the charges within 6 months of the offence.
Can a Summary Offence be Charged as Indictable?
A pure summary offence cannot be converted or raised to an indictable offence. When parliament creates criminal offences, it decides how the offence will be charged, and that designation is fixed in the Criminal Code. However, that can change under certain circumstances:
- Parliament can reclassify offences. For example, Bill C-75 reclassified over 100 indictable offences into a hybrid category (more about this below) and also raised the penalties on summary offences.
- Additional charges could be added, making your case more complex and potential penalties higher.
- In the case of a hybrid offence (see below), the Crown could initially charge you with a summary vs indictable offence and then re-elect to charge you with an indictable offence.
Indictable Offences
The summary vs indictable offence distinction determines everything from penalties to your rights during your trial.
If you are charged with an indictable offence, you can expect a longer process, higher penalties, and more jail time. However, you have more options for your trial, and the charge could be reduced if it is your first offence and you have good legal representation.
What Is an Indictable Offence
An indictable offence is a more serious charge than a summary offence. Some examples of indictable offences are:
- Murder and manslaughter.
- Aggravated sexual assault.
- Participating in a criminal organization.
- Treason and high treason.
- Weapons trafficking.
- Terrorist activity financing.
What Are the Penalties for Indictable Offences
The penalties for indictable offences vary widely. Unlike summary offences, many indictable offences carry mandatory minimum penalties. For example, first-degree murder has a mandatory sentence of life in prison with no possibility of parole for 25 years, second-degree murder has a mandatory life sentence, but parole is allowable after 10 or 25 years, and cannabis production of 5 to 201 plants for the purpose of trafficking has a minimum sentence of 6 months.
Additional consequences for indictable offences can include firearms prohibitions, driving prohibitions, restitution orders, immigration consequences (for non-citizens), and a requirement to submit a DNA sample.
Judges have broad discretion over penalties, and base their decisions on:
- Proportionality (the principle that the punishment should be proportionate to the crime).
- Aggravating factors such as the use of a restricted firearm.
- Mitigating factors such as the defendant’s age and their history of offending.
- Victim impact statements.
- Pre-sentencing reports, which detail the offender’s personal and criminal history and the circumstances surrounding the offence.
How Does Prosecution for Indictable Offences Differ From Summary Offences
Indictable offences involve a longer process than summary offences. This is how they differ from summary prosecutions:
- Higher maximum penalties.
- May include a preliminary inquiry.
- No limitation period for laying charges.
- Defendants can choose trial by judge alone or trial by judge and jury.
Hybrid Offences
Hybrid crimes can be charged as summary offences or indictable offences. Although parliament designed the summary versus indictable offence system to ensure that court procedures match the seriousness of the crimes, Bill C-75 recognized that many cases were taking too long to go through the court system. To help alleviate this problem, over 100 crimes were hybridized.
Hybrid offences give the Crown (the prosecution) the option to go forward with a summary procedure or an indictment. Some common hybrid offences are:
- Theft over $5000.
- Sexual assault.
- Impaired driving.
- Criminal harassment.
- Possession of controlled substances.
When the Crown elects to proceed with a summary vs indictable offence, they will consider:
- The seriousness of the crime.
- Harm that was caused.
- The defendant’s criminal history.
- Aggravating or mitigating circumstances.
The Crown will also consider whether a summary vs indictable offence is in the public interest. For example, in a minor case of theft committed by someone who has no criminal history and shows genuine remorse, the Crown might proceed with summary prosecution to free up the court’s time and minimize the impact on the offender’s future. In contrast, if an impaired driver has several previous convictions, the crown might choose to proceed with indictment to send a message to the public that this behaviour is unacceptable, and to protect the public from the dangers the offender might present in the future.
Summary vs Indictable Offence: How a Criminal Lawyer Can Help
Whether you have been charged with a summary vs an indictable offence, hiring a criminal lawyer is essential to getting the best outcome possible in your case. Here’s how a criminal lawyer can help:
- Protecting your rights through the process.
- Explaining the difference between a summary vs an indictable offence.
- Negotiating with the crown to have the charge reduced from indictable to summary.
- Reviewing the evidence against you and collecting additional evidence, witness statements, and character references.
- Accompanying you to your bail hearing.
- Building a strong defence for your trial.
- Presenting evidence at trial and challenging Crown witnesses.
- Helping you stay calm and organized during your time in the criminal justice system.
- Preparing an appeal if appropriate.
- Negotiating for a reduced sentence based on the facts of the case and any mitigating circumstances.
Whether you are dealing with summary vs indictable offence charges, the team at Zamani Law is prepared to help you. Led by renowned criminal lawyer Farid Zamani, Zamani Law will support you through your entire case and beyond. We have the skill, experience, and dedication to fight for your rights and obtain the best outcome possible in your case.
Contact Zamani Law today for a free consultation.
