Summary Conviction Laws in Ontario

Canada does not use the U.S. legal terms “misdemeanor” and “felony.” Instead, crimes are classified as either “summary” or “indictable” offences, a distinction that determines how and where they are prosecuted, the potential consequences of a conviction, and more.

In this post, we focus specifically on the summary conviction laws in Canada and what they mean for Ontario residents who face criminal charges.

Misdemeanors in the U.S. equate to summary convictions in Canada, while felonies are called “indictable” offences within the Criminal Code of Canada.

Police in Ontario may arrest people charged with summary offences without a warrant, provided they see the crime happen.

Misdemeanors are less than felony offences, typically tried in the Ontario Court of Justice (provincial court) by a judge alone without the right to a jury. This generally results in a quicker criminal process than with felonies, and cases must be prosecuted within a 12-month statute of limitations.

These lesser crimes also attract a maximum penalty of $5,000 fine (often much lower) and two years less a day in jail (usually less than the maximum), or both.

Felonies or indictable offences, on the other hand, often involve long, drawn-out criminal investigations and attract long-term imprisonment, up to life in some cases, with no statute of limitations. They are often tried in the Superior Court in front of a judge and jury (though provincial trials are also possible). They may also require a preliminary inquiry and multiple hearings.

A summary conviction is the formal judgment that someone is guilty of a summary offence. These offences are considered less serious and are prosecuted through a streamlined process, with less serious punishments than convictions for indictable offences.

Although summary convictions are of a less serious classification than indictments, such convictions can still result in extensive jail time of up to two years, as well as a permanent criminal record that can affect employment, education, international travel, visa status, and more. The threat of a summary conviction should, therefore, NOT be taken lightly.

Offenders found guilty of a summary offence can apply for a pardon (or “record suspension” as it is more formally called in Canada) not less than five years after the sentence has been fully served if they have no additional convictions during that period.

Examples of summary conviction offences

Summary conviction offences generally do not involve significant harm to others, and may include:

• Creating a public nuisance.
• Causing a disturbance.
• Minor drug possession (may be prosecuted summarily or by indictment).
• Minor vandalism (mischief under $5,000).
• Minor theft offences (under $5,000 can be prosecuted summarily).
• Trespassing at night.

The court process for summary conviction offences

The court process for summary convictions is usually managed by a judge in a provincial court without a jury, with the following stages necessary:

• First appearance: The accused is informed of the charges and may enter a plea.
• Trial: If a trial is necessary (i.e., no dismissal of charges or plea bargaining), it proceeds without delay, with evidence presented by the prosecution and defence before the judge.
• Sentencing: If convicted, the offender is usually sentenced to a fine, probation or short-term imprisonment.

Besides summary and indictable offences, a third category of offence exists in Canada. These are known as “hybrid” offences, which can be prosecuted summarily or by indictment.

The Crown prosecutor decides how to proceed with the charge, based on factors such as the nature and circumstances of the defendant’s conduct, the defendant’s criminal past, and the risk posed to the community if the defendant is released.

Many criminal offences fall into this third category, allowing the justice system great flexibility with prosecutions, depending on the precise circumstances of the case.

Let’s now summarize each category of offence in Canada:

Summary offences in Ontario

• The least severe offences, comprising the majority (around 80 percent) of criminal offences prosecuted in Canada.
• The defendant poses less threat to society as a whole.
• Tried in the Ontario Court of Justice (provincial court) before a judge.
• Less complex cases.
• Resolved quickly (usually within a year).
• The least severely punished (up to two years less a day in jail and/or a $5,000 fine).
• Probation or community service are common sentencing options (emphasis is frequently on rehabilitation and re-entry into the community).

Indictable offences in Ontario

• The most severe offences (including murder, sexual assault, and manslaughter).
• The accused may pose a high threat to society.
• More time-consuming to investigate and prosecute.
• Can be highly complex.
• Often tried before a judge and jury in the Superior Court of Justice.
• The most severely punished (up to life in prison).
• Some crimes have mandatory minimum sentences.

Hybrid offences in Ontario

• Include many moderately severe crimes (e.g., assault, fraud, theft under $5,000).
• Summary or indictable offences.
• Highly dependent on case specifics.

The defence strategies for summary conviction crimes are similar to those for felonies—with some important differences—and are usually based around one of the following:

• Negotiated settlements: With summary offences, the chances of a negotiated settlement are higher than for indictable offences, especially if the defendant has no previous criminal history and no party was harmed. Charges may be reduced or a lesser penalty agreed, sometimes avoiding the need for a full trial and even preventing a criminal record.
• Challenging the available evidence: a seasoned criminal defence lawyer will check the evidence in fine detail for weaknesses in the prosecution’s case. Any opportunity to challenge the validity of the evidence presented by the prosecution (e.g., unreliable witness testimony) will be noted and built into the defence strategy.
• Charter defences: Canadian citizens enjoy protections under the Canadian Charter of Rights and Freedoms. Any violation of rights during the investigation or arrest can lead to evidence being discarded and the charges being dismissed.

To understand more about your legal rights and the criminal process in Ontario, speak to a criminal defence lawyer in Ottawa during a free consultation.