In Canada, the federal government is the body which creates and executes all matters pertaining to criminal law. Each province is responsible for enforcing these laws, mainly through the RCMP (Royal Canadian Mounted Police), provincial police forces and local city and town police officers. The federal government retains ultimate power to govern and prosecute offences and while the guidelines for sentencing and laws are consistent throughout the country, enforcement varies in different provinces.
If you are charged with an offence in the Greater Toronto Area, or anywhere else in western Ontario, it is beneficial to know and understand as much as you can about what is going to happen to you in our court system. Kruse Law Firm has criminal law offices throughout the GTA and western Ontario to serve you. We will use our expertise and experience to help get you through the ordeal, ensuring you are well informed.
There are two main categories of criminal offences in Canada. Here we will take a look at one of them and its impact on you.
A summary offence, also referred to as a summary conviction offence, is an offence which is resolved without a jury or indictment. It is a “less serious” offence versus its counterpart (an indictable offence) and is punishable by different sets of rules, regulations and lower sentencing guidelines.
Many criminal offences can be tried under either category and these are referred to as “dual procedure” or “hybrid offences.” For example, if the nature of the hybrid offence is serious or the offender has a serious prior criminal record, the Crown attorney could decide to elect by indictment so that there are more serious sentencing options available to the judge.
In summary, under the Canadian Criminal Code, there are straight or “pure” summary conviction offences (which are not dual procedure offences) such as causing a disturbance in a public place or soliciting prostitution, dual procedure or hybrid offences where the crown can elect either summarily or by indictment such as impaired driving, theft under $5,000.00, sexual assault and straight indictable charges such as murder. The final decision in regard to electing either summarily or by indictment for a dual procedure offence is in the discretion of the crown attorney.
A summary conviction offence has some of the following characteristics:
- The accused has no right to a jury trial and cannot choose to have a preliminary hearing or to be tried in a higher court. In Ontario, if you are charged with a summary conviction offence your guilty plea or trial will always be held in the Ontario Court of Justice.
- The accused is ordered to be in court on a certain day and time;
- The accused has to be charged within six months of the offence (after the specified time frame they cannot legally be charged unless it is “dual procedure” offence where the crown can then elect by indictment);
- A person who is charged with a summary conviction offence (as opposed to a dual procedure or indictable offence) does nothave to submit any fingerprints or have a police “mug shot” taken under the Identification of Criminals Act;
- The police are allowed to make an arrest without a warrant;
- The sentencing options for summary conviction offence are less serious and result in lesser fines and shorter jail terms compared to indictable offences; and
- Summary conviction offences are tried in a provincial court and appeals are made to the next highest court level (In Ontario a summary conviction appeal is heard in the Superior Court of Justice).
It is important to note that:
- The accused is not required to appear personally in court unless specifically ordered by the Judge. He or she can either have their lawyer represent them or an agent (which could be a paralegal);
- While there is a six month time limitation for prosecution of a summary conviction offence, this statute of limitations does not apply to a dual procedure (i.e. hybrid) criminal offence or a straight indictable offence. For example, a person could be charged with a murder that happened 30 or more years ago.
There are many reasons for having a statute of limitations for prosecuting summary conviction criminal offences. It negatively impacts both the prosecution and defence for various reasons and is relevant to building a defence for the following reasons.
- The accused should not be able to be prosecuted based on newly developed public moralities and opinions that were not present at the time of the crime.
- It is seen as impractical and wrong to prosecute an individual against any unfounded allegations that were made many years before.
- With time, objectivity and physical evidence can sometimes be lost or misconstrued. People may forget key evidence that can determine a person’s guilt or innocence and this works directly against one’s right to a fair trial.
A few common examples of straight summary conviction offences are listed below (i.e. where the offence is always tried as a summary conviction offence and the Crown cannot elect by indictment) These straight summary conviction offences are to be contrasted with a dual procedure or hybrid offence such as impaired driving, theft under $5,000.00, assault or sexual assault:
- Unlawful assembly
- Solicitation of prostitution
- Harassing phone calls
- Causing a disturbance in public place
- Public nudity
- Trespassing at night
- Fraudulently obtaining transportation
As set out in s. 787 of the Criminal Code, five thousand dollars is the maximum fine that can be imposed as a punishment (with or without jail time of up to six months) for all straight summary conviction offences unless a greater jail term or fine is specifically provided for in the Criminal Code.
A summary conviction appeal allows for the defendant to represent themselves. Of course it is strongly advised that you seek legal advice from an expert criminal defence lawyer as this is a very significant and impactful decision that could affect the rest of your life and your future employment prospects and stigmatize you in your community. There is an old expression which is a truism that, “He who represents himself in court has a fool for a lawyer.”
If you decide to appeal a finding of guilt by the trial judge, it must be filed within thirty days of the initial decision made by the provincial court judge (In Ontario this is a judge of the Ontario Court of Justice). An extension can be filed if the thirty day time period has elapsed in extenuating circumstances.
The knowledgeable and skillful lawyers and staff at Kruse Law firm understand the severity of summary conviction charges and the impact any criminal charge will have on your life. They may be categorized as “lesser offences” but it does not change the seriousness with which we handle your case. An accusation and charge is damaging under any circumstance and we do our utmost best to minimize the damage it causes to our clients. Please call one of our local offices in the Toronto area or throughout Ontario or call our toll free number or visit our web site (www.kruselaw.ca) for the legal advice and results you need.