Summary conviction or indictable?

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Summary conviction offences

Summary conviction offences encompass the most minor offences in the Criminal Code. Examples are “cause disturbance” and “harassing telephone calls.”
Unless a different penalty is specified, summary conviction offences are punishable by a fine of up to $5,000 or six months’ jail or both. You cannot be fingerprinted for a summary conviction offence.

“Super-summary” offences

Some hybrid offences such as impaired driving, uttering death threats, sexual assault, assault with a weapon, and trafficking in LSD are punishable on summary conviction by up to 18 months’ jail. Paralegals are not allowed to represent you at trial on such charges. Under section 802.1 of the Criminal Code, unless the defendant is a corporation, paralegals can act only in respect to charges with a potential jail penalty of up to six months.

Indictable offences

An indictable offence is more serious than a summary conviction offence. Conviction of an indictable offence exposes you to greater penalties.

If you are prosecuted by indictment, you are entitled to trial by jury for most offences. You do not have the right to trial by jury if you are tried by indictment for offences such as Drive Disqualified (i.e., driving while prohibited as a result of a conviction for impaired driving), Theft Under $5,000, Fraud Under $5,000, or Mischief Under $5,000.

Hybrid offences

Many offences can be prosecuted either by summary conviction or indictment. The Crown chooses or elects the mode of prosecution. Such offences are referred to as “hybrid” (or “Crown option” or “dual procedure”). Hybrid offences include impaired driving, assault and theft under $5,000. Hybrid offences are considered indictable until the Crown makes its election. As fingerprinting occurs before the Crown selects the mode of prosecution, you will be fingerprinted for a hybrid offence even if it is prosecuted summarily.

Revocation or denial of passport

Under the Canadian Passport Order, authorities can revoke your passport (and demand you surrender it), or refuse to issue you one, if you’ve been charged with an indictable offence. All impaired driving offences are deemed indictable because they may be prosecuted by indictment: Interpretation Act, section 34(1)(a). However, once the Crown has elected to proceed by summary conviction, the offence is no longer considered indictable: Ahmed v. Canada.