How Common Is It For A DUI Charge To Be Tried As An Indictable (More Serious) Offence?

You’ve been charged with impaired driving, what many people in Canada call it DUI, just colloquially, or using vernacular. You go your lawyer and you say, what’s going on with these charges in a more minor offense, with straightforward fines and losing your license for a period of time, and your lawyer gets the disclosure says, Wait a second. Wait a second. The crown has elected by indictment, and you go, omg, oh my god. I thought this was going to be summary conviction. Aren’t all DUIs summary conviction in Canada? Not necessarily. Let’s break it down.

In Canada, there’s what’s called summary conviction offenses, indictable offenses and dual procedure offenses, meaning there they could be the Crown could elect summarily or by indictable. So think of a summary conviction offense as having lesser penalties on lesser type crime. Think of indictable as being much more serious, like, for example, murder is a straight indictable offense as an example.

Now an impaired driving charge or a DUI is what’s called a dual procedure offense. So the crown can elect summarily if they consider it a lesser type crime of impaired driving, or they can elect by indictment if they consider more aggravating circumstances. And we’re going to talk about when they might see this and why in certain circumstances.

So if you take more serious impaired driving, you take, for example, impaired driving causing bodily harm, that’s very serious. That’s a straight indictable offense. There’s no election for the crown, and you’re facing a maximum of 10 years in jail for that. For impaired operation. We call it operation now they changed the terminology. It used to be impaired driving causing death. Now it’s called impaired operation causing death, for what it’s worth. The maximum penalty there is very serious. That’s a life sentence. Again, it’s straight, indictable. And we’ll talk about your elections for that in a moment as well, because you’d have better election rights as well when it’s indictable. Now getting back to the example, when might the crown elect summarily, and when might they elect by indictment, just on a straightforward impaired driving where there’s no bodily harm or no death?

So let’s take your normal citizen, you blew a reading of 150 say, kind of a mid range to higher reading. There was no accident and no problem. You got no prior record. Almost invariably, the Crown is going to elect summarily. They’re going to consider that less. You’re likely not facing a jail term unless there’s a child in the car, for example. And when, like the elect by indictment on that situation. Well, let’s say you’ve got five prior convictions for impaired driving, pretty serious. You’re looking at a long jail term. The advantage for the crown here they’re going to say look, they’re going to consider, they might not, but they’re going to consider electing indictment on that situation, 5,6,7,8, convictions. I’ve seen many more than that unfortunately. The person’s looking a long jail term. But what’s the difference? Well, once you elect by indictment, the maximum penalty goes way up. The maximum penalty for a straight impaired driving with no bodily harm, no death, for indictment is 10 years in jail. So it’s a very long versus a much shorter maximum jail term, and typically no jail for a first time offender in any event, unless there’s very aggravating circumstances. So it becomes serious, and it can be surprising to many people that the Crown’s start asking for these lengthy jail terms when you’ve got multiple prior convictions, for example, on a second prior conviction within a certain number of years, you’re looking at an automatic 30 day jail term or higher. The lowest is 30. 120 days on a third conviction, and God knows, months and sometimes years, when there’s multiple, multiple convictions. I’ve seen, unfortunately, people in Ontario with 15,16, convictions or more, gets a bit crazy, doesn’t think they never learned a lesson. So what’s the benefit, if there is any, from electing indictable well, your election results. Election rights are better for your trial on a straight impaired driving the summary you have to elect to be tried in the Ontario court of justice. There’s no option. On an indictable impaired though, because there’s a maximum of 10 years you’re you have a greater election right. You can elect to be tried in the Ontario court of justice. You can elect to be tried the Superior Court of Justice, judge alone or with a judge and jury. Sometimes a Judge Jury might be the route to go depending on the case. So greater election rights. That’s the good news. The bad news is far more significant penalties, long jail terms.

So that’s how it basically turns out in Ontario. The other situation where I’ve seen the crown occasionally elect by indictment, not necessarily in a first offense, but you know, typically say on you’ve got three priors, most Crown’s are going to elect summarily, even with two or three priors to keep it in the Ontario Court of Justice. But I have since seen a situation where if there’s extensive property damage coupled with a few priors, they might elect by indictment. So you run into a building, destroy a building, $100,000 worth of damage, they might elect by indictment. So just to recap, then multiple many priors can result in indictment. If you couple a few priors, maybe with extensive property damage, it might be indictment. In most other situations, it almost invariably, they’re going to elect summarily, unless you’re in those aggravating circumstances and you’re really up against it once they elect indictment, because your penalties go way up. So that’s in a nutshell. I started with the example the person was shocked by getting elected by indictment on DUI, but it certainly does happen in our province and throughout Canada.