Classification of Offences
Kenneth W. Golish, Criminal Defence

Classification of Offences

Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.

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