Summary or indictable: what does the Crown's choice change in your case?

For a hybrid charge such as assault or theft under $5,000, the Crown chooses to proceed summarily or by indictment. That choice changes the maximum sentence, whether you choose a judge or jury, where an appeal goes and how long you wait for a record suspension. Summary is the lighter track: unless another law says otherwise, the maximum is a $5,000 fine, two years less a day in jail, or both.

The phrase "the Crown elected summarily" comes up early in most criminal cases in Ontario, often without explanation. Here is what it means, and the one area where it changes less than people expect: immigration.

What is a hybrid offence?

Criminal offences fall into three groups. Some can only be prosecuted summarily, some only by indictment, and many, called hybrid offences, can be prosecuted either way. The Ontario Court of Justice explains that the Crown decides how to proceed on a hybrid offence based on the seriousness of the act, the accused's previous criminal history and other factors, and that the decision affects the possible sentence and whether the accused gets an election.

For many legal purposes, the federal Interpretation Act treats any offence that may be prosecuted by indictment as indictable (s. 34(1)(a)). But a person convicted summarily of a hybrid offence is not considered convicted of an indictable offence by reason only of that conviction (s. 34(1)(c)). Keep that rule in mind: as you will see below, immigration law sets it aside.

Some offences carry higher maximums or minimum sentences in particular circumstances, such as sexual assault of a complainant under 16 or a high blood alcohol reading, so the exact charge matters. Our page on assault charges in Ontario covers the different levels of assault. For property cases, see our guide to theft charges over and under $5,000.

Driving cases need one more distinction. A criminal charge of impaired operation is a hybrid offence under the Criminal Code, explained on our impaired driving charges page. A roadside reading in the warn range (0.05 to 0.08) is different again: it is a provincial suspension, not a criminal offence, so it has no summary or indictable track at all.

How does the Crown's choice play out, step by step?

The Criminal Code is federal, so the rules are the same across Ontario. In Toronto, most adult criminal cases start at the Ontario Court of Justice at 10 Armoury Street. Here is the usual order of events.

1. The charge is laid. The information names the offence.
2. Fingerprints. Police may fingerprint a person charged with a hybrid offence even if the Crown later proceeds summarily, because the Identification of Criminals Act covers summary offences that could also have been prosecuted by indictment (s. 2(1)).
3. First appearance and disclosure. The Crown's choice usually appears on the Charge Screening Form in your disclosure. According to the Ontario Court of Justice, that form will usually indicate whether the charges are proceeding by summary conviction or indictment. Our page on what disclosure contains in an Ontario criminal case explains the rest of the package.
4. The election, if any. If the Crown proceeds by indictment and the offence allows it, you are asked to elect your mode of trial. The court says your lawyer, duty counsel or the presiding judge or justice in case management court will tell you if you have that option.
5. Trial or resolution. A summary case stays in the Ontario Court of Justice. An indictable case can stay there or move to the Superior Court of Justice, which in Toronto sits at 361 University Avenue for criminal cases.
6. Sentence and after. The track sets the ceiling on the sentence, the court that hears an appeal, and the waiting period for a record suspension.

For what a day at the Toronto courthouse looks like, read our guide to the criminal courts at 10 Armoury Street.

What does it change about your trial?

If the Crown proceeds summarily, there is no election and no jury. The trial is before a summary conviction court, which the Criminal Code defines as a justice or provincial court judge (s. 785), so in Ontario the case stays in the Ontario Court of Justice.

If the Crown proceeds by indictment, many offences give you an election between a judge and a jury. The choices are a trial by a provincial court judge without a jury, by a judge without a jury, or by a judge and jury (s. 536(2) and (2.1)). If you do not elect, you are deemed to have chosen a judge and jury. For offences punishable by 14 years or more, you can also ask for a preliminary inquiry if you go to the Superior Court (s. 536(2) and (4)).

Some indictable offences have no election at all: the provincial court has absolute jurisdiction over, for example, theft and fraud where the value is $5,000 or less (s. 553). Once made, an election may not be changeable without the Crown's consent, so it deserves careful advice. Cases that go up are heard at the Superior Court criminal courthouse at 361 University Avenue.

What does it change after the case?

The record check row is easy to misread. Ontario's Police Record Checks Reform Act, 2015 drops convictions after five years only for offences that "may be prosecuted only by way of summary conviction proceedings". A hybrid offence the Crown happened to prosecute summarily does not qualify. Our page on what each Ontario police record check discloses explains the three levels of check.

The record suspension waiting period, on the other hand, follows how the offence was actually prosecuted (Criminal Records Act, s. 4(1)). See how long you must wait for a record suspension for when the clock starts.

The appeal route matters too, because the court and the rules differ. Our guide to appealing a criminal conviction in Ontario sets out both routes.

What changes the answer in your case?

• Immigration status. For the inadmissibility rules in the Immigration and Refugee Protection Act, an offence that may be prosecuted either way is deemed indictable, even if it was prosecuted summarily (IRPA s. 36(3)(a)). A summary election does not, on its own, protect a permanent resident or a visitor, student or worker.
• The offence's maximum, not the sentence you expect. A permanent resident is inadmissible for serious criminality on a conviction for an offence with a maximum of at least 10 years, or when a prison term of more than six months is imposed (IRPA s. 36(1)(a)). A foreign national is inadmissible for criminality on a conviction for an offence punishable by indictment (s. 36(2)(a)).
• Minimum sentences and 14-year offences. A discharge is not available for an offence with a minimum punishment, or one punishable by 14 years or life (Criminal Code s. 730(1)).
• Time since the incident. A summary conviction proceeding cannot be started more than 12 months after the events it is about, unless the prosecutor and the defence agree (s. 786(2)).
• Absolute jurisdiction. For offences listed in s. 553, such as theft or fraud of $5,000 or less, even an indictable case stays in the Ontario Court of Justice with no election.

If your status in Canada is not yet permanent, or you are a permanent resident, read how a criminal conviction in Ontario can affect permanent resident status before any plea. We advise on the criminal side; immigration advice comes from an immigration lawyer.

For example: a summary election that still matters for immigration

This is a hypothetical, not a real client or a result. Suppose a 22-year-old international student from Iran, in Toronto on a study permit, is charged with theft under $5,000 after an incident at a store in North York. Her disclosure arrives, and the Charge Screening Form says the Crown is proceeding summarily. A friend tells her that "summary" means it is minor and will not affect anything.

Her lawyer explains, in Farsi, why that is not the whole picture. The sentence ceiling is lower and there is no jury, which is true. But theft can be prosecuted either way, so for immigration purposes it is deemed indictable (IRPA s. 36(3)(a)), and a conviction for an offence punishable by indictment can make a foreign national inadmissible for criminality (s. 36(2)(a)).

So the real question is not the track but the outcome. The lawyer looks first at outcomes that avoid a conviction, such as diversion or a discharge, which under the Criminal Code is not a conviction (s. 730(3)), and recommends that she speak with an immigration lawyer before any plea. The summary election shaped the sentence range; it did not settle the immigration risk.

What mistakes do people make about summary and indictable charges?

1. Reading "summary" as "not a criminal record". A summary conviction is still a criminal conviction. It is disclosed on police record checks, and for a hybrid offence the five-year drop-off does not apply.
2. Assuming a summary election protects immigration status. IRPA deems hybrid offences indictable for its own purposes (s. 36(3)(a)), whatever track the Crown chose.
3. Pleading guilty quickly because the case is "only summary". The lower ceiling can make a plea feel small, but the conviction itself can carry immigration, travel and job results.
4. Missing the election. If you are put to an election and do not choose, you are deemed to have chosen a judge and jury (s. 536(2) and (2.1)).
5. Not reading the disclosure. The Charge Screening Form often shows the Crown's track and position. Ask your lawyer to go through it with you.

What can you do this week?

1. Find your release papers and your next court date, and keep them with any disclosure you have received.
2. Look for the Charge Screening Form in your disclosure and note whether it says summary or indictment.
3. Write down your immigration status: citizen, permanent resident, or a permit holder, and the permit's expiry date.
4. Make a list of any prior charges or convictions, in Canada or elsewhere, to share privately with your lawyer.
5. Do not make an election or enter a plea before you have advice on what the track means for you.
6. If you would follow court better in Farsi, tell your lawyer now so an interpreter can be requested early.

If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains how we work in Farsi from the first call.

Frequently asked questions

Can I ask the Crown to proceed summarily?

The choice belongs to the Crown. The court lists the seriousness of the offence and the accused's previous criminal history among the factors behind it. Your lawyer can raise information that bears on those factors when speaking with the Crown, but no one can promise the result.

Why were my fingerprints taken if the Crown is proceeding summarily?

The Identification of Criminals Act allows fingerprints for a person charged with an indictable offence, or with a summary offence that could also have been prosecuted by indictment (s. 2(1)). So a hybrid charge allows fingerprinting whichever track the Crown later chooses.

Does a summary case finish faster?

Not necessarily. "Summary" describes the procedure, not the speed. For cases in the Ontario Court of Justice, the court's practice direction says it will offer trial dates expected to finish within 15 months of the date the information was sworn.

Can a paralegal handle a summary charge?

Only some. The Ontario Court of Justice notes that paralegals may only provide representation and advice for certain criminal charges, and points to the Law Society of Ontario's list of permitted summary conviction offences. Before hiring anyone, ask whether your charge is one they are permitted to take.

Can I get a court interpreter on either track?

Yes. Section 14 of the Charter gives an accused who does not understand the language of the proceedings the right to an interpreter, and Ontario's Ministry of the Attorney General provides interpretation in any language required in criminal matters. If your lawyer does not request one, Ontario's guidance is to tell the judge or your lawyer on the record at your first court date.

Can I appeal a summary conviction?

Yes. In Ontario, an appeal from a summary conviction goes to the Superior Court of Justice (ss. 812(1)(a) and 813), while an appeal from a conviction on indictment goes to the Court of Appeal for Ontario (s. 675). Deadlines are short, so act quickly.

Does the track change how much a defence involves?

It can. An election, a preliminary inquiry or a jury trial adds steps, while a summary trial stays in one court. Our page on what drives the cost of a criminal defence in Toronto walks through the stages that add work.

Getting help

Gambriani Law PC can explain, in English or Farsi, what the Crown's election means for your case, including the immigration side of a hybrid charge. No lawyer can promise a result, but understanding the track your case is on is the first step to making good decisions about it. You can reach the office at +1 647 970 3370, Monday to Friday, 9:00 a.m. to 5:00 p.m. The office is at Suite 1901, 5000 Yonge Street in North York.

This page is general information about Canadian criminal law as it applies in Ontario, not legal advice about your case.