The statute of limitations for criminal offences establishes the time frame within which police have to legally charge someone with a crime after the date that the crime is alleged to have occurred. In Ontario, as in the rest of Canada, that length of time depends on what type of offence forms the basis of the charge.
A summary offence is a less serious offence that carries a maximum sentence of two years less a day in prison. The statute of limitations for summary offences is 12 months.
An indictable offence is a serious offence that may lead to a significantly longer sentence. These offences do not have a statute of limitations.
A hybrid (or dual election) offence is an offence that allows the Crown to choose whether they proceed summarily or by indictment. If the Crown elects to proceed summarily, the statute of limitations is 12 months. If the Crown proceeds by way of indictment, there is no limitation period.
In Canada, most offences are not summary offences. In many cases, police may charge someone with a crime years, and even decades, after the alleged crime occurred.
The Limitation Period of Indictable, Summary, and Hybrid Offences in Ontario
In Ontario, as in the rest of Canada, there are three types of offences: indictable offences, summary offences, and hybrid offences. In addition to differing rules on limitations, these offences vary in their procedural requirements, rights to mode of trial, and severity of possible punishments. The type of offence will generally be set out in the ‘punishments’ section of the Criminal Code of Canada.
Indictable Offences: No Limitation Period
An indictable offence is a serious crime. Indictable offences may be tried either by a judge alone or by a judge and jury. The consequences of a conviction for an indictable offence are generally more severe than for a summary offence, with much longer maximum sentences. Examples of indictable offences include aggravated assault (s. 268) and murder (s. 235).
There is no limitation period in which police must charge someone for an indictable offence.
This means that a person may be charged with an indictable offence, such as aggravated assault, years after the alleged offence occurred.
Summary Offences: 12-Month Limitation Period
A summary offence is less serious than an indictable offence. These offences are tried by a judge alone. The consequences of a conviction for a summary offence are generally less severe than for an indictable offence. S. 787(1) of the Criminal Code establishes that, unless otherwise specified, a person who is convicted of an offence punishable on summary conviction is liable to either a fine of not more than $5000, a prison term of not more than two years less a day, or both. Examples of summary offences include causing a disturbance (s. 175) and trespassing at night (s. 177).
The statute of limitations for summary offences is 12 months, according to s. 786(2) of the Criminal Code. Police must charge someone with a summary offence within 12 months after the date the crime is alleged to have occurred. Past 12 months, a person can no longer be charged with that crime.
Hybrid offences: Dependent on the Crown’s Election
Hybrid offences are offences where the Crown has the discretion to proceed summarily or by indictment. These are the most common types of offences in Canada. Examples of hybrid offences include criminal harassment (s. 264) and assault (s. 266).
In R v. Dudley, the Supreme Court of Canada confirmed that if the Crown elects to proceed summarily, the statute of limitations will apply. There is no limitation period if the Crown elects to proceed by indictment.
Factors that the Crown considers when choosing whether to proceed summarily or by indictment include the seriousness of the accused person’s actions and the harm caused by the offence. Proceeding summarily will generally cause fewer delays and be easier on witnesses, but if the Crown believes the public interest could not be met within the maximum sentence of two years minus a day for summary offences, they will generally elect to proceed by indictment. The Crown may also elect to proceed by indictment if it is past the 12-month limitation period for summary offences.
Why Do Summary Conviction Offences Impose a Statute of Limitation?
R v Dudley explains that a central purpose of the statute of limitations is to allow people who commit minor offences to live their lives without the threat of prosecution constantly hanging over their heads (para 76). Furthermore, the limitation period promotes efficiency and mitigates delays in prosecution, which can make it difficult to obtain evidence such as witness testimonies.
Why is there no Statute of Limitations for Indictments?
R v Dudley notes that the desire for a timely prosecution is outweighed by the serious nature of indictable offences. There is no limitation period for these offences because it is in the public interest to prosecute indictable offences, even if many years have passed since the crime was committed.
What if a Crime was Committed but the Statute of Limitations has Expired?
A person cannot be charged for a crime if the statute of limitations has expired. In other words, if 12 months have passed since a person committed a pure summary offence, the police cannot legally charge them for that crime.
In some cases, however, it may be in an accused person’s best interest to consent to being prosecuted summarily even if the statute of limitations has expired. This situation would only arise if they are being charged with a hybrid offence, not a pure summary offence. Because hybrid offences give the Crown the option of electing to proceed summarily or by indictment, the Crown may prosecute a hybrid offence by indictment even if 12 months have passed. If the offence is relatively minor, it may be in both parties’ best interest to consent to an ‘out-of-time’ summary prosecution. This saves the Crown the time and resources needed for a possible jury trial, and saves the accused person from facing the higher maximum sentence of an indictable offence.
Is there a Statute of Limitations for Domestic Violence in Canada?
While there is no specific ‘domestic violence’ offence in the Criminal Code, most acts that constitute domestic violence are considered crimes in Canada. Examples include assault (s. 266), kidnapping and forcible confinement (s. 279), criminal harassment or “stalking” (s. 264), uttering threats (s. 264.1) and criminal negligence (s. 219). The limitation period will depend on whether the offence is classified as summary, indictable, or hybrid. If it is a summary offence, the statute of limitations is 12 months. If it is an indictable offence, there is no statute of limitations. If it is a hybrid offence, the Crown may elect to proceed by indictment in order to avoid the limitation period. Most offences that constitute domestic violence are either indictable or hybrid offences and will not be subject to a statute of limitations.
To note: Although there is no specific ‘domestic violence’ offence in Canada, evidence that an offence involved the abuse of the offender’s intimate partner or a member of their family is considered an aggravating factor for the purpose of sentencing, in accordance with s. 718.2 of the Criminal Code.
