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In Canada, persons may be convicted of offences under federal, provincial or municipal law. However, only the federal parliament has the authority to pass criminal law in Canada. Thus, if you are ever asked if you have been convicted of a criminal offence in Canada, you need to know under what statute you were convicted. If it was under a provincial statute it cannot be a criminal matter. Offences under federal law are either criminal or not. An offence may be considered a mere contravention. A contravention is an offence that is created by an enactment and is designated as a contravention by regulation. All other offences are criminal. Two broad categories of offences exist under the criminal law in Canada, one includes offences that may be prosecuted by indictment, the other by summary conviction. If a federal enactment simply creates an offence, the offence is considered a summary conviction offence. If the offence is under the Criminal Code of Canada, the Controlled Drugs and Substances Act or the Youth Criminal Justice Act, it is a criminal offence, but if it is under any other federal statute, one must look at the statute and its regulations to determine whether a charge is criminal or not. While we have two broad categories of criminal offences, offences are most frequently broken down into three categories depending on the procedure: A typical enactment will state a maximum penalty and sometimes a minimum penalty, and provide that the offence may be prosecuted either:
1.
By indictment;
2.
By summary conviction;
3. By indictment or by summary conviction.
The following are examples of each of these categories of offences:
1.
Robbery is an example of a straight
indictable offence as the offence of robbery is punishable by indictment and
provides a maximum penalty of life imprisonment;
2.
Causing a disturbance is an example of
a simple summary conviction offence;
3. An assault may be prosecuted either by indictment with a maximum penalty of five years, or by summary conviction.
The third type of offence is usually referred to as a hybrid offence or a dual procedure offence. In fact, most offences are hybrid offences, these being offences in which the prosecutor elects the procedure. Since most hybrid offences provide for different maximum penalties, depending on whether the prosecution is by indictment or summary conviction, it is the prosecutor who determines the maximum penalty and this authority is not without its significance.
For most purposes--but not all--the offence is
considered indictable until the prosecutor elects the procedure. This distinction may be important, for
instance, in determining who has the power to arrest an individual for the
commission of an offence. As for the
immigration law of Canada, any dual procedure offence is normally considered an
indictable offence and the maximum under the enactment is the operative maximum
regardless of the procedure employed.
Indictable offences involve more serious charges. A matter proceeded with by summary
conviction, unless otherwise provided for, carries a maximum penalty of two
years less a day in jail or a $5,000 fine or both.[1]
For indictable offences, the range of
penalties starts at maximum of two years.
Most increments, but not all, then go from five, 10, and 14 years, and
finally life in prison. Where no maximum
is stipulated, but the offence is indictable, the maximum is five years.[2]
Most offences do not carry any minimum punishment and for those offences the
maximum provides a range of punishment only.
In fact the vast majority of sentences do not end up being for the
maximum penalty. In most cases, when the
prosecutor proceeds by indictment, or when the offence is simply indictable,
the accused has an election as to his or her mode of trial. Otherwise, for all summary offences charged,
including hybrid offences, the trial must be before a provincially-appointed
judge, formerly called a magistrate or provincial court judge. The defendant has no right to a jury trial. For most indictable offences, the accused may
elect to be tried by provincial court judge.
If he or she makes that election, the matter goes straight to trial
without a jury. Alternatively, he or she
may elect to be tried by a superior court judge with or without a jury.
Two exceptions apply to the right to make an election
for indictable offences. First, for
certain serious offences, such as murder, the case must be tried in superior
court, although a jury trial may be waived if the prosecutor and accused both
consent. Second, certain criminal
offences are within the absolute jurisdiction of a provincial court judge. These are either criminal offences that, on
indictment are punishable by a maximum of only two years in jail, or possession
and trafficking offences related to certain controlled substances punishable by
a maximum of five years less a day in prison.
(Except before a military tribunal, the Canadian constitution guarantees
trial by jury where the maximum punishment for the offence is imprisonment for
five years or more.) Absolute jurisdiction offences are not exclusive
jurisdiction offences.
An accused may still end up having a superior court
trial on such an offence because a provincial court judge has the authority to
order an accused to stand trial not only for the offence charged, but for any
other indictable offence in respect of the same transaction disclosed by the
evidence on a preliminary inquiry. Although
an accused has the right to elect the mode of trial, the Criminal Code of Canada does provide that notwithstanding such an
election, the Attorney General, that is the Crown Attorney, may require a jury
trial unless the alleged offence is one that is punishable with imprisonment
for five years or less.
If the matter will be tried in superior court, then
in some instances, the accused is entitled to a preliminary hearing which is held
in provincial court. Formerly this was
an automatic right unless waived, but currently the right only exists on
request. Moreover, it is only available where
or more of the offences carries a maximum penalty if fourteen years or more.
It is important to note that a person may be tried
for one offence and convicted of something other than the full offence charged. This may happen when not every element of an
offence is proved, but fewer than all the elements of the offence constitute
another offence--what is called an included offence--are proved. For instance, on a charge of robbery, the
prosecution may end up proving only a theft or an attempted theft, but not
prove that anything in the nature of an assault was committed. The accused would be convicted of the lesser
offence of theft or attempted theft. Where
a dual procedure offence such as theft is proved, the maximum penalty would be
the indictable penalty for that offence.
An accused person may also be convicted of any other offence, and not
simply an included offence. For that to
happen, it must be with his or her consent and the consent of the prosecutor. Thus a person tried for an indictable offence
may be convicted of any other type of offence, even a simple contravention.
Limitation Period: For indictable
offences, the Criminal Code of Canada
includes no formal limitation period. However,
cases not commenced or prosecuted in a timely fashion, may be dismissed or
stayed in appropriate circumstances in the discretion of a judge. Where the offence is summary conviction,
unless a specific limitation period applies to that offence, the information
must be laid within 12 months. Where a
dual procedure offence information is laid after 12 months, the prosecutor may
only proceed by indictment. However, a defendant and prosecutor may agree
to waive this limitation. Of course a
defendant, properly advised, would only do so in order to avoid being
prosecuted for a more serious offence or as a condition of a prosecutor, on a
hybrid offence, not electing to proceed by indictment.
[1] S.787
[2] S.743