Summary Conviction Appeal

If you’re arrested and charged with a crime in Ontario, your case can be treated in one of three ways: as a summary offence, an indictable offence or a hybrid offence.

This essentially governs the severity of your sentence, if you are convicted of the crime. Mandatory minimum jail sentences, fines, and other penalties may be associated with each type of offence.

There are certain crimes that are always indictable and others that are almost always treated as summary offences.

Your lawyer at Friedman Mansour LLP will be familiar with all options open to the judge and will push for the most lenient measures that the law allows.

What are the categories of criminal offences?

There are three basic categories of criminal offences in Canada:

Summary Conviction Offences

If your conviction proceeds as a summary offence, it means that your crime was amongst the least serious crimes as detailed in the Criminal Code of Canada.

It is the equivalent of a misdemeanour in the U.S. justice system and includes offences such as possession of marijuana under 30 grams, public nudity or assisting a deserter.

A more complete list of such offences can be seen in the table below.

Summary offences generally involve no jury. The judge usually makes the decision of whether to convict the accused (and of the severity of the associated punishment), based on the evidence presented.

Indictable Offences

Compared to summary offences in Canada, there are more offences that are classed as indictable.

These offences include the most serious crimes including murder, acts of terrorism, and certain types of sexual assault or drug crimes.

Some of these offences carry a maximum sentence of life imprisonment, and many carry mandatory minimum jail terms.

Hybrid Offences

With hybrid offences, the Crown prosecution can choose to proceed by indictment or summary conviction.

These offences include most medium-severity offences (the most common type in Canada) including assault, fraud under $500,000, theft under $5000 or cocaine possession.

The Crown will weigh up the following factors and then decide to proceed either by summary conviction or indictment:

• The evidence against the defendant
• The seriousness of the alleged crime
• The criminal record of the defendant
• The perception of the particular crime in the community
• The available court resources
• Whether it falls within the limitation period for a summary conviction

The decision of the Crown is essentially final, but a good defence lawyer will make a strong case to proceed with the most lenient outcome.

What are summary conviction offences in Ontario?

If the police arrest you under a summary conviction, they can (in most cases) do so without an arrest warrant.

For your case to proceed as a summary conviction, you must be charged within six months of the act happening.

If your case does proceed as a summary conviction in Ontario, the following will almost always apply:

• You do not have to submit fingerprints when charged
• Your case is likely to be heard in a provincial court
• You can appeal a conviction in the highest trial court in Ontario (the Ontario Superior Court of Justice)
• A further appeal would go to the Ontario Court of Appeal and, in rare cases, to the Supreme Court of Canada
• You will be eligible for an automatic pardon after three years provided you are not convicted of any further offences during that period

What are the differences between summary conviction offences & indictable offences?

There are many important differences between summary convictions and indictments. Some of the main ones include:

• A six-month limitation period from the time of the alleged offence with summary convictions (indictable offences have no time limit, except treason, which has a three-year limit)
• Police do not require an arrest warrant to arrest you for a summary offence
• Fingerprints are generally not required to be submitted to police with summary convictions (they are required for indictable offences)
• The appeal process is different: summary convictions are appealed in the Ontario Superior Court of Justice and not the Court of Appeal
• Summary conviction offences generally have a maximum prison term of six months and/or a maximum fine of $5,000
• Some summary (hybrid) offences have a maximum jail term of eighteen months
• With summary offences, a judge usually makes the decision rather than a jury (unless there is a trial for an indictable offence at the same time)
• A person convicted of a summary offence can request a pardon after three years (for indictable offences, it’s five years)

How long does a summary conviction stay on your record?

If you do not actively seek a pardon or a record suspension, even a summary conviction may stay on your criminal record for the rest of your life.

If you are found guilty of a summary offence, you will receive a prison sentence or a discharge.

You will be considered to have a criminal conviction if you:

• Receive a prison term, fines or forfeitures, a conditional sentence or a suspended sentence with probation (you can apply for a pardon after three years)

You will NOT be considered to have a criminal conviction if you:

• Receive an absolute or conditional discharge: for this, you may have to plead guilty of the crime and the records will be sealed after either one or three years, depending on whether your discharge was absolute or conditional

Note that even if you are found not guilty of a summary offence, you will possibly appear on police record checks and this can still raise questions when seeking employment, etc.