Under the Criminal Code of Canada, there are three types of offences: summary conviction offences, indictable offences, and those offences where the Crown may elect to proceed by summary conviction or by indictment. Crown-electable offences are often referred to as “hybrid offences”.
The simplest explanation of the difference between summary conviction offences and indictable offences is that the former is less serious than the latter.
Indictable offences are the most serious of criminal offences and would include murder, acts of terrorism, robbery, drug trafficking, treason, certain types of sexual assault, and other very serious criminal acts. As one could imagine, the sentences for these types of offences are very serious and often carry a potential maximum penalty of life imprisonment.
Anyone charged with these sorts of offences usually has the right to chose their mode of trial: judge alone in Provincial Court without a preliminary hearing, judge alone in Superior Court with or without a preliminary hearing, or a jury trial with or without a preliminary hearing. However, not everyone who is facing an indictable offence is entitled to a preliminary hearing or a judge and jury trial (those exceptions are set out in section 553 of the Criminal Code).
Similarly, not every type of offence permits the accused to elect to have a judge without a jury unless the prosecutor consents (for example, in first-degree murder the Crown must consent to have the case heard by a judge alone). There is no limitation period for indictable offences and a person can be charged, tried, acquitted or convicted at any time the police wish to proceed with the charges provided there is a sufficient basis for doing so. Usually indictable offences very complicated with serious consequences. Although it is never a wise choice to defend allegations without the assistance of a lawyer, doing so when facing an indictable offence is reckless. Appeals for indictable offences are heard by the Court of Appeal for the Province the case was heard.
In Ontario, those appeals take place in the Ontario Superior Court of Justice. Summary conviction offences generally carry a maximum penalty of six months in jail, although some electable offences have a maximum of eighteen months in jail (e.g. assault causing bodily harm, assault with a weapon, forcible confinement, sexual assault). A person is not entitled to a jury trial or to have their case heard in the Superior Court of Justice, unless it is being heard alongside an indictable offence at the same time.
Hybrid offences are those offences where the Crown may choose to proceed by either indictment or summary conviction. These types of offences cover the majority of Criminal Code of Canada offences. They include, but are not limited to: assault, sexual assault, fraud under $5000.00, theft under $5000.00, assault with a weapon, assault causing bodily harm, possession of cocaine (simple possession), and many more.
The decision by the Crown to proceed by way of indictment or summary conviction is a discretionary one that is not subject to review by any court (unless there was a deliberate abuse of process which would be exceptionally rare and very difficult to demonstrate).
In assessing whether or not to proceed by indictment or summary conviction, a Crown would consider factors that may include: the seriousness of the allegations (for example, “sexual assault” can include either touching or full intercourse), the accused’s prior criminal record, the notoriety of the case in the community, the availability of court resources, whether the offence is sworn outside the limitation period for a summary conviction, the complexity of the case, and any other relevant considerations.