OTHER SERVICES: SUMMARY CONVICTION OFFENCES
CATEGORIES OF CRIMINAL OFFENCES
A summary offence is a criminal act that can be proceeded with summarily, without the right to a jury trial and/or indictment (required for an indictable offence).
An indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury (in contrast to a summary offence). In trials for indictable offences, the accused normally has the right to a jury trial, unless he or she waives that right.
Summary Conviction Offences
In Canada summary offences are usually referred to as summary conviction offences. Summary conviction offences are considered less serious than indictable offences because they are punishable by shorter prison sentences and smaller fines. These offences appear both in the federal laws of Canada and in the legislation of Canada’s provinces and territories. For summary conviction offences that fall under the jurisdiction of the federal government, section 787 of the Criminal Code of Canada specifies that, unless another punishment is provided for by law, the maximum penalty for a summary conviction offence is a sentence of 6 months of imprisonment, a fine of $5000 or both. Section 786 of the Code has a statute that prohibits persons from being tried for a summary conviction offence more than 6 months after the offence was committed unless both the prosecutor and defendant agree otherwise.
Generally speaking summary offences are less serious and indictable offences are more serious. Many offences can be prosecuted as either a summary offence or an indictable offence — the Crown prosecutor makes this choice. These offences are called dual offences or hybrid offences. Usually, Crown prosecutors prosecute the less serious of these as summary conviction offences, but they may choose to treat them as more serious indictable offences when, for example, the accused person has a criminal record or where the circumstances make the crime more serious. Court procedures and possible sentences vary according to the category of the criminal offence.
“Summary” means in a quick and simple manner. A judge hears summary conviction cases in provincial court. There is no choice of court, and the accused does not have a right to a jury trial. Usually, a person charged with a summary conviction offence is not arrested, but given a notice to appear in court on a certain date at a certain time. The person must be charged within six months of the offence. After this time a person cannot be charged with a summary conviction offence.
Indictable offences are more serious crimes than summary conviction offences. There is more than one procedure for indictable offences. The procedure that applies depends on the seriousness of the offence. Some indictable offences must be tried by a provincial court judge. No jury trial is available for these offences. A number of very serious indictable offences, such as murder, must be tried by a judge and jury, unless both the Attorney General and the accused person agree to a trial without a jury. For all other indictable offences, the Criminal Code gives the accused person a choice, called an election. In these cases the accused person can choose to be tried by a provincial court judge, by a superior court judge, or a superior court judge and jury. A person charged with an indictable offence must personally show up in court. He or she may represent him or herself or be represented by a lawyer. There is no limitation period for indictable offences; this means that the police can file charges against an individual, at any time after the offence has occurred.
Difference between Summary Conviction Offences & Indictable offences
As a matter of practical effect, some common differences between summary conviction and indictable offences are provided below.
Summary Conviction Offences
- Accused must be charged with a summary conviction within 6 months after the act happened. Note that the statute of limitations does not apply to the Criminal Code. Limitation periods are set out in the Criminal Code directly.
- The police can arrest under summary conviction without an arrest warrant notwithstanding s. 495(2) (c) of the Criminal Code.
- Accused does not have to submit fingerprints when charged under Summary Conviction.
- Appeals of summary conviction offences go first to the highest trial court within the jurisdiction.
- After Ontario Superior Court a further appeal would go to the Ontario Court of Appeal, and then finally to the Supreme Court of Canada, but as a practical matter very few summary convictions are ever heard by the Supreme Court of Canada.
- Accused convicted under summary conviction are eligible for an automatic pardon after 3 years provided the accused is not convicted of any further offences during that period.
- Almost always heard first in a provincial court (although some exceptions apply, such as a summary conviction offence included for trial with an indictable offence).
- There is no time limit to when charges can be laid, e.g. an accused can be charged 20 years after an act has occurred. The exception to this point is treason, which has a 3-year limitation period.
- Police do require a warrant to arrest under an indictable offence.
- Accused has to submit fingerprints when required to appear to answer to an indictable offence.
- Appeals always go to the Provincial Court of Appeal first, and then on to the Supreme Court of Canada.
- Accused convicted under an indictable offence can apply for pardon after 5 years.
LEVELS OF COURT
In Canada, provincial court systems are divided into provincial courts and superior courts. Provincial courts may include special youth courts. All criminal cases begin in provincial court and most are dealt with there. More serious matters may be heard in a superior court. Superior courts include a trial court or division, as well as an appeal court or division. Criminal matters that will be dealt with at the superior court level must first have a preliminary inquiry in provincial court to ensure there is sufficient evidence to proceed to trial.
A person charged with a summary conviction offence does not have to appear in court personally. A lawyer or an agent may appear in court on that person’s behalf, unless the judge asks the person charged to appear in person. An agent may be a friend or relative or a person hired to appear in court. The maximum punishment is a fine of $2,000 and/or a jail term of up to 6 months, except for a few specified offences, for example sexual assault where the maximum jail sentence is 18 months. Very few offences in the Criminal Code are only summary conviction offences, although many dual offences end up being prosecuted as summary conviction offences.
SUMMARY CONVICTION OFFENCES
|Charge||Section of Criminal Code|
|Assisting a deserter||Section 54 & 56|
|Engaging in a prize fight||Section 83|
|Possession of a weapon in public||Section 89|
|Impersonating a peace officer||Section 130|
|Advising reward/immunity||Section 143|
|Disorderly conduct||Section 173|
|Indecent acts, public or private||Section 173|
|Public exposure||Section 173 (2)|
|Public nudity||Section 174|
|Causing disturbance, indecent exhibition, loitering, etc.||Section 175|
|Disturbing religious worship or certain meetings||Section 176 (2)|
|Trespassing at night||Section 177|
|Offensive volatile substance||Section 178|
|Keeping a gaming or betting house||Section 201|
|Being found at or being a landlord or tenant of a common bawdy-house||Section 210|
|Being found at or being a landlord or tenant of a common bawdy-house||Section 210|
|Transporting a person to a bawdy-house||Section 211|
|Procuring or soliciting prostitution (accused stopping vehicles or pedestrians)||Section 213|
|Unauthorized use of a bodily substance||Section 258.1|
|Theft valued under $5,000||Section 322 & 334|
|Taking a motor vehicle or vessel or found therein without consent||Section 335|
|Fraudulently obtaining food, beverage or accommodation||Section 364|
|Pretending to practice witchcraft, sorcery, enchantment or conjuration, undertaking to tell fortunes||Section 365|
|Indecent telephone calls||Section 372 (2)|
|Harassing telephone calls||Section 372 (3)|
|Fraudulently obtaining transportation||Section 393 (3)|
|Falsifying employment record (punching time clock etc.)||Section 398|
|Obtaining carriage by false billing||Section 401|
|Impersonation at examination||Section 404|
|Falsely claiming royal warrant||Section 413|
|Unlawful use of military uniforms or certificates||Section 419|
|Interfering with the saving of a wrecked vessel||Section 438 (2)|
|Issuing trade stamps||Section 427 (1)|
|Giving trade stamps to a purchaser of goods||Section 427 (2)|
|Interfering with a marine signal||Section 439|
|Interfering with boundary lines||Section 442|
|Manufacture or possession of slugs and tokens||Section 454|
|Defacing current coins||Section 456|
|Refusal to employ for reason of membership in union||Section 425|
|Manufacture, promotion, sale of likeness of currency (counterfeiting)||Section 457|
|Corrupting Morals||Section 163 & 169|
|Tied Sale||Section 165 & 169|
|Immoral theatrical performance||Section 167 & 169|
|Mailing obscene matter||Section 168 & 169|
Proof of Offences
Persons charged with a criminal offence are presumed innocent until they plead guilty or are proven guilty in court. The Crown prosecutor must prove that an accused person is guilty. Accused persons do not have to show that they are innocent. Accused persons are entitled to know the case against them.
Summary Conviction Appeal
You do not need a layer or paralegal: you may represent yourself at the Court of Appeal, but it is strongly recommended that you seek legal advice. CP Paralegal Solutions is always ready to help you out.
A summary conviction appeal involves the review of a decision made by a Superior Court Judge who has heard and disposed of an appeal to the Superior Court, following a trial in the Ontario Court of Justice. The subject of such an appeal is a summary conviction offence, as opposed to an indictable offence.
An appeal is initiated by filing three copies of a notice of appeal (Form B). A certificate of the court reporter should be filed at the same time, indicating that copies of the transcript required for use on the appeal have been ordered. If such a certificate cannot be filed immediately, it must be filed within fifteen days after the notice of appeal is filed. The Court of Appeal will serve a copy of the notice of appeal on the Crown Law Office or the Federal Department of Justice, depending on the nature of the appeal.
In most summary conviction appeals, the application for leave to appeal is dealt with at the same time as the appeal, by three judges of the Court of Appeal.
The notice of appeal must be filed no later than 30 days from the date of the decision by the Superior Court judge whose decision is the subject of the appeal. If your time to file an appeal has expired, a motion for an order extending the time to file the notice of appeal can be filed. The notice of motion (Form 37A) must be prepared and a copy served on the Crown, and then filed in the Court of Appeal with proof of such service. Proof of service should be in the form of an affidavit of service (Form 16B) swearing where, when and how the documents were served, or by an admission of service on the back cover of the document to be filed. The applicant should also serve and file an affidavit explaining the reasons for the delay.
Once the notice of appeal has been filed, the appellant is required to requisition the original papers and exhibits (if any) from the court from which the appeal is taken, within 14 days of the filing of the notice of appeal, and files a copy of the requisition with the Court of Appeal. The requisition is to be in Form 4E in the Rules of Civil Procedure. The appellant must also prepare, serve and file the following documents:
- appeal book (3 copies are to be filed with the court)
- appellant’s factum (3 copies are to be filed with the court)
- transcript: (3 copies are to be filed with the court)
All documents must be served on the Crown before they are filed, and proof of service must be filed with the Court of Appeal office when the documents are presented for filing. With the appeal book, the transcript and the appellant’s factum, the appellant must file two copies of a certificate of perfection. At this stage, the appeal is considered “perfected”, meaning that it is ready to be listed for hearing by the Court of Appeal. A book of authorities may also be filed in triplicate by the appellant. Such a filing is not mandatory. If you decide to file a book of authorities, a copy of that document, too, must be served on the Crown.
The appeal book contains copies of all pertinent documents that were before the court from which the appeal has been taken. The appeal book must:
- be bound front and back in buff covers
- have consecutively numbered pages throughout, or be arranged by tabs
- contain a table of contents describing each document, including
- the notice of appeal and any supplementary notice of appeal
- the order granting leave to appeal, if any, and any order made referring to the appeal
- the information or indictment including all endorsements
- the order or decision appealed from, if any, as signed and entered
- the reasons for judgment, if not included in the transcript to be filed on the appeal
- any order for release from custody pending appeal and any other order suspending the operation of the sentence
- all documentary exhibits filed at trial, arranged in order by date
- all maps, plans, photographs, drawings, charts that were before trial judge and are capable of reproduction
- agreed statement of facts, if any
- if the appeal is from sentence, the pre-sentence report, the criminal record of convicted person and any exhibits filed on the sentencing proceedings
- any notice of constitutional question with proof of service to the Attorney General of Ontario and the Attorney General of Canada
- any agreement made by parties relating to transcripts required for the appeal
- a certificate of perfection
- a certificate of completeness (Form 61H) stating that the contents of the appeal book are complete and legible, signed by the appellant
The factum contains a statement of facts and an outline of the legal points on which the appellant bases his or her case. The appellant must type his or her name and sign the factum. The factum may not exceed 30 pages in length. Except in an appeal from sentence alone, the appellant’s factum must be bound front and back in blue covers, and must consist of the following:
- Part I, containing a statement identifying the appellant and the court appealed from, the nature of the charge(s), the result in that court, and whether the appeal is from conviction, conviction and sentence, acquittal or other disposition;
- Part II, containing a concise summary of the facts relevant to the issues on appeal, with such references to the evidence by page and line as is necessary;
- Part III, containing a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
- Part IV, containing a statement of the order that the Court of Appeal will be asked to make;
- Schedule A, containing list of authorities referred to in the order in which they appear in Part III; and
- Schedule B, setting out the text of all relevant provisions of statutes, regulations and by-laws, other than the Criminal Code.
The transcript is prepared by the court reporter or reporters present during the trial or during the hearing of the appeal in the Superior Court. The appellant bears the responsibility of ordering any such transcript. Transcripts must be bound front and back in red covers.
The certificate of perfection states:
- that the appeal book, transcripts, and appellant’s factum have been filed,
- the estimated total length of time for oral argument, and
- the name, address, and telephone number of the respondent or of their lawyer or agent
The book of authorities contains copies of all cases, statutes and other authorities that the appellant considers to be relevant to the appeal. The book of authorities must be bound front and back in blue covers and the passages that will be referred to in oral argument must be marked, that is, underlined, highlighted, or side-barred.
The appellant is required to perfect the appeal within 90 days from the filing of transcripts, if there are any. If there are no transcripts, the appellant must perfect the appeal within 60 days from the filing of the notice of appeal. If for reasons beyond your control, you are not able to perfect the appeal on time, you have two options:
- to ask the Crown for consent in writing to an extension of time to perfect the appeal
- to file a motion to be heard by a Court of Appeal judge asking for an extension of time to perfect the appeal