Indictable Offence vs Summary Offence: What’s the Difference?

By Last Updated: October 4, 2022

What is an indictable offence?

Indictable Offence vs Summary OffenceAn indictable offence is often considered a more serious offence due to the greater penalties and sentences associated with it. Due to the seriousness of the crimes, the penalty for an indictable offence is up to life imprisonment, which is 25 years. If your offence is classified as indictable, this means that you may be eligible for a preliminary hearing.

A preliminary hearing is a hearing in court where it is decided whether there is enough evidence for the matter to proceed to trial. The mode of trial refers to the decision of whether you would like to have a non-jury trial in the Provincial Court or a judge-alone or jury-alone trial in the Superior Court. Additionally, given the seriousness of indictable offences, in Canada, there is no statute of limitation.

This means you can be charged with an indictable offence any time after you have committed the alleged offence.

The Criminal Code of Canada aids in classifying whether an offence is an indictable offence or not. Take for example s.83.04 of the Criminal Code:

83.04 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years who

a) uses property, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, or

b) possesses property intending that it be used or knowing that it will be used, directly or indirectly. In whole or in part, for the purpose of facilitating or carrying out a terrorist activity.

What is a summary offence?

Summary offences are characterized as less serious offences and carry lesser penalties or sentences. If you have been charged with a summary offence, the Police are allowed to arrest you without a warrant. Additionally, s.787(1) of the Criminal Code specifies that, unless otherwise indicated, the maximum punishment for a summary conviction offence is 2 years less one-day imprisonment and/or a fine of $5,000.00.

All summary offences are tried in the Provincial Court with no jury and the accused does not have the liberty to have a preliminary hearing or to be tried in a higher court. Furthermore, any appeals for summary offences are made to the next highest court, the Superior Court. Lastly, unlike indictable offences, for summary offences there does in fact exist a statute of limitation. As per s.786(2) of the Criminal Code, there is a 12-month limitation period from the time of the commission of the offence for a charge to be laid.

An example of a summary offence found in the Criminal Code is s. 175(1) which states the following:

175 (1) Every one who

(a) not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,
(ii) by being drunk, or
(iii) by impeding or molesting other persons,

(b) openly exposes or exhibits an indecent exhibition in a public place,

(c) loiters in a public place and in any way obstructs persons who are in that place, or

(d) disturbs the peace and quiet of the occupants of a dwelling-house by discharging firearms or by other disorderly conduct in a public place or who, not being an occupant of a dwelling-house comprised in a particular building or structure, disturbs the peace and quiet of the occupants of a dwelling-house comprised in the building or structure by discharging firearms or by other disorderly conduct in any part of a building or structure to which, at the time of such conduct, the occupants of two or more dwelling-houses comprised in the building or structure have access as of right or by invitation, express or implied, is guilty of an offence punishable on summary conviction.

What is a hybrid offence?

A hybrid offence is an offence in which the Crown Prosecutor has the choice to proceed either summarily or by indictment. The Crown Prosecution will decide which way to proceed by looking at a variety of factors such as previous criminal history, the individual circumstances of the case, and the level of harm. Many of the offences in the Criminal Code fall into the category of hybrid offences. Like both indictable and summary offences, hybrid offences are also classified within the Criminal Code.

For example s.271 of the Criminal Code for sexual assault states the following:

271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. Other examples of common hybrid offences in which the Crown can choose to proceed summarily or by indictment are impaired driving and theft.

When should I hire a lawyer?

It is recommended that you hire as soon as you have had any sort of police interaction, you believe you will be charged, or you have been criminally charged. If you are in a situation where you have been arrested by the Police, remember that you have a right to a Lawyer and you have the right to remain silent as you are in no way obligated to make a statement or answer any questions the police may ask you. Hiring a lawyer will ensure that your rights are protected and that you have a strong defence case. Remember that anything you might say could implicate you even without your realization. An experienced lawyer will help you navigate through the criminal justice system and ensure that your rights are protected.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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