A summary offence is a criminal offence prosecuted under the shorter procedure in Part XXVII of the Criminal Code. The trial is held before a judge of the Ontario Court of Justice, with no jury. Unless the section creating the offence sets another limit, section 787 caps the sentence at two years less a day in jail, a fine of up to 5,000 dollars, or both.
Many charges have no fixed label when they are laid. The Criminal Code lets the Crown prosecutor choose between the summary route and the route by indictment for a large group of offences, and that choice affects the appeal court, the wait for a record suspension and the time limit for starting the case. Immigration law works differently, as the last section shows.
Which offences go by which route?
The section that creates an offence says which routes are open. Some name only the summary route, some name only indictment, and the rest name both. Those in the third group are usually called hybrid offences, or Crown election offences. The five below show the pattern.
| Offence | Section | Route open | Longest jail term |
|---|---|---|---|
| Causing a disturbance | 175(1)(a) | Summary only | Two years less a day, the general limit in s. 787 |
| Theft of property worth 5,000 dollars or less | 334(b) | Either | Two years by indictment, two years less a day on summary conviction |
| Mischief to property worth 5,000 dollars or less | 430(4) | Either | Two years by indictment, two years less a day on summary conviction |
| Assault | 266 | Either | Five years by indictment, two years less a day on summary conviction |
| Robbery | 344 | Indictment only | Life |
Look at the theft and mischief rows. The two ceilings are one day apart, so on those charges the sentence limit tells a reader very little about why the route matters. The differences lie in the procedure and in what comes after a conviction.
Is the maximum sentence six months?
No, not since 19 September 2019. Six months was the general limit in section 787 until amendments that took effect that day raised it to two years less a day. The older figure is still printed in many places, and it survives in one part of the Code for a different purpose.
The general limit for a summary conviction before 19 September 2019.
The general limit now, unless the section creating the offence says otherwise.
The point above which a defendant generally cannot appear through an agent who is not a lawyer.
Section 802.1 lists exceptions to that third rule: a defendant that is an organization, an appearance only to ask for an adjournment, and an agent authorized under a program or criteria approved by the province. After the 2019 change, Ontario and the Law Society of Ontario kept paralegals on the limited list of summary conviction offences they could already take, which includes assault and theft of property worth 5,000 dollars or less. A charge that goes ahead by indictment is outside a paralegal's licence. Our legal team assists with the full range of your matter, including applications filed with IRCC.
How does a hybrid charge become a summary one?
A hybrid charge becomes summary when the Crown elects to proceed that way. Until it does, section 34(1)(a) of the Interpretation Act treats the offence as indictable. The Code doesn't list factors the prosecutor has to apply, and the accused does not make this choice. The stages run in this order:
The charge is laid
Because the offence counts as indictable at this stage, the Identification of Criminals Act allows police to take fingerprints and photographs, including from a person released on an appearance notice or undertaking.
The Crown reviews the file and elects
The prosecutor tells the court which route it will take. Our article on the first criminal court appearance in Ontario describes the papers and the courtroom where this comes up.
The 12-month limit is checked
Under section 786(2), a summary proceeding cannot begin more than 12 months after the events unless the prosecutor and the defendant agree. Past that point, the summary route closes without that agreement. The Code has no matching general limit for proceeding by indictment.
The case goes ahead on the chosen route
On the summary route, the trial stays in the Ontario Court of Justice. By indictment, the offence and the accused's election decide the court and whether a jury is possible.
What changes depending on the route?
The route changes where an appeal goes and how long a record suspension takes, among other things. The table compares the two for a conviction in Ontario. A person convicted on a charge that could only ever be summary is in the first column throughout.
| Point | Summary route | By indictment | Where it is set |
|---|---|---|---|
| Trial | Ontario Court of Justice judge, no jury | Depends on the offence: some stay in the Ontario Court of Justice, others allow a Superior Court trial or a jury | Criminal Code, Parts XIX, XX and XXVII |
| First appeal | Superior Court of Justice in the region where the decision was made | Court of Appeal for Ontario | Criminal Code, ss. 812, 813 and 675 |
| Starting the case | Within 12 months, unless both sides agree | No general time limit | Criminal Code, s. 786(2) |
| Who may appear | The defendant, counsel or an agent, subject to s. 802.1. The court can require the defendant in person. | The accused or counsel, under the rules for indictable trials | Criminal Code, ss. 800(2) and 802.1 |
| Record suspension wait | 5 years after the sentence is completed | 10 years after the sentence is completed | Criminal Records Act, s. 4(1) |
The record suspension wait follows what actually happened in court, so a hybrid offence prosecuted summarily carries the 5-year wait. Exactly when that clock starts is worked through in our article on record suspension waiting periods. A conviction on either route is a criminal conviction, and more on what comes with that is on our page about summary conviction matters.
Does the route matter for immigration?
For a hybrid offence, generally no. Section 36(3)(a) of the Immigration and Refugee Protection Act deems an offence that may be prosecuted either way to be indictable, even when the Crown chose the summary route. Under that Act, the question is what the offence could have been, along with the sentence actually imposed. The two panels use constructed examples, not anyone's file.
Those findings can lead to an admissibility hearing and a removal order, and a charge's route should not be read as an answer to the immigration question. Our page on criminal inadmissibility covers the wider subject, and our article on how a foreign conviction is equivalenced explains the comparison officers make for an offence committed outside Canada.
Angelina Shuster is a paralegal licensed by the Law Society of Ontario. To have a charge sheet or a conviction record reviewed, the free assessment form is the place to start.
This article is general information about the law in Ontario. It is not legal advice and does not create a paralegal-client relationship.
