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Types of Criminal Offences

The three main types of criminal offences are summary conviction, indictable and hybrid offences. Each category has different penalties and proceeding.

Three main types of criminal offences

Category of offence Description Penalties Proceeding
Summary conviction offences Summary conviction offences are the least serious type of offences, such as:

  • an indecent act
  • breaching a probation order
  • disturbing the peace
  • Up to 6 months of imprisonment, a fine of up to $5,000 or both
  • Must be charged within 6 months after the act happened
  • Eligible for pardon after 5 years
  • Police need an arrest warrant
  • Accused doesn’t have to submit fingerprints
  • No preliminary hearing
  • Trial will be held in the Ontario Court of Justice before a judge only
  • No jury
Indictable offences Indictable offences are the most serious type of offences, such as:

  • murder
  • theft over $5,000
  • break and enter
  • aggravated assault
  • More than 6 months of imprisonment, a $5,000 fine or both
  • There is no time limit to when charges can be laid, except for treason, which has a 3-year limitation period
  • Eligible for pardon after 10 years
  • Police don’t need an arrest warrant
  • Accused must submit fingerprints
The specific indictable offence you have been charged with will determine whether you will have the choice of having:

  • a preliminary hearing
  • the right to select a trial by a judge and a jury
  • in which court your trial will be held
Hybrid offences For hybrid offences, such as assault, the Crown prosecutor chooses whether the offence will be treated as a less serious summary conviction offence or a more serious indictable offence. Depends on Crown prosecutor election. The prosecutor’s decision will affect where the trial takes place and which penalties will apply.
Steps in a Criminal Proceeding

1. Arrest or Detention

If you’re stopped by police, you can ask the officer if you’re being arrested or detained. If neither, you’re free to go and don’t have to answer any questions or speak to anyone.

In order to arrest or detain you without a warrant, the police officer must have reasonable grounds to believe you committed or are in the process of committing an indictable offence (s. 495 of the Criminal Code). A warrantless search is presumptively unreasonable, unless the search was done by consent or under exigent circumstances (R v Feeney). In the latter case, the Crown must prove on a balance of probabilities that the officer who conducted the search had reasonable and probable grounds to believe it was necessary (e.g., to preserve important evidence or for safety reasons) and did so without needlessly violating your rights (R v Smith and s. 8 of the Charter).

If you’re being arrested or detained, the Charter provides you rights including the right:

    • to remain silent when questioned by the police (flows from ss. 7 and 11(d))
    • to be told why you’ve been arrested or detained (s. 10(a))
    • to be told that you can hire and instruct a lawyer (s. 10(b))
    • to be told about the availability of duty counsel (toll-free) and Legal Aid (s. 10(b))
    • to speak with a lawyer, in private, as soon as possible (s. 10(b))
    • to be released on bail unless there is a valid reason to keep them in custody (s. 10(c))
    • to a trial within a reasonable period (s. 11(b))
    • not to testify at your trial (flows from the right to silence)

You’re also entitled to full disclosure of the Crown’s case against you and it must be ordered through the Crown’s office. There are order forms for disclosure in every Crown’s office.

The right to silence means you don’t have to speak to a police officer or other person in authority. If you choose to speak to a police officer, you must speak the truth. If you lie, you may be charged with:

    • obstructing a police officer
    • public mischief and obstructing justice

If a state agent violates your right to silence, the trial judge may exclude the evidence if it was obtained in a way that would bring the administration of justice into disrepute (s. 24).

In addition to the right to silence, you can’t be compelled to give evidence against yourself (s. 13). However, if you testify you must tell the truth. If you don’t, you may be charged with perjury.

The state can’t use ‘dirty tricks’ such as undercover police officers or police informants to get you to talk about an offence. However, this depends on the nature of your relationship to the officer/informant. If the officer/informer is acting as an agent of the state, this will usually be seen as a violation of your right to silence.

Even though the right to silence applies any time you interact with a person in authority, police don’t have to advise you of your right to silence. As with all Charter rights, your right to silence can’t be waived (given up) without your informed consent.

2. Resolution Discussions (aka Plea Negotiations)

You may choose to plead guilty to a lesser charge and accept a lighter sentence. If you plead guilty, there is no need for a trial. The trial is for when you plead not guilty.

If you plead not guilty, you are asking the Crown prosecutor to summon enough evidence for the judge (or the jury) to find you guilty beyond a reasonable doubt. This is the test for the Crown. If the court has any reasonable doubt as to whether you committed an offence, then it must acquit you.

3. Bail Hearing

Following an arrest, you may have to appear in court a number of times before the trial for

    • a bail hearing,
    • a set date,
    • a preliminary hearing and
    • pre-trial hearings or motions.

Once you’ve been arrested and taken to the police station, the police will either hold you in custody or let you leave the police station. If the police decide to hold you in custody at the police station, they must bring you to a Justice of the Peace for a bail hearing within 24 hours after you were arrested or as soon as possible.

At the bail hearing, the Justice of the Peace will decide whether you should be released or held in custody until your trial. A lawyer may represent you at the bail hearing.

At your bail hearing, the Justice of the Peace will look at several factors to decide whether you should be released, for example:

    • whether you’re a danger to the public,
    • how serious the offence is,
    • whether you have a criminal record or outstanding charges,
    • whether you missed a trial in the past and
    • whether you have a job, a business or a family in the area.

If you’re released, the Justice of the Peace may impose certain conditions, e.g., that you don’t leave Ontario. The Justice of the Peace may also require that you:

    • have a surety to sign on your behalf
    • pay money into court as a deposit
    • that a friend or family member should agree to supervise you (it’s always helpful to have a credible friend or family member at a bail hearing to vouch for you if possible)

You’ll also be given a paper that tells you when and where to be in court to set a date for your trial.

If you’re not released on bail, you will be held in a detention centre until your trial.

4. Appealing Your Bail Hearing

If you’re not allowed out on bail, you can ask for a review of the decision of the Justice of the Peace. A judge in the Superior Court of Justice will then review your case. If the judge refuses to release you, you must wait 30 days before applying for another review.

5. Set Date for Court Appearance

If police let you go at the police station, they’ll give you a paper which is a notice that tells you when and where you have to be in court. In this document you may find conditions attached to your release, such as not communicating with the alleged victim of the crime. The first court appearance is called your set date because the judge will set a date for your trial. Generally, no date is set for trial until complete disclosure has been received. This may take several weeks and in complicated cases, such as a fraud, it may take months. In some cases a pre-trial (aka a preliminary hearing) will be required where the defence and prosecutor along with a judge sort out the legal and factual issues of the trial.

6. Preliminary Hearing

The exact procedure from arrest to trial will vary depending on the type and severity of the offence with which you are charged. For murder, for instance, you may get a preliminary hearing first to see if there is enough evidence for a trial. However, the trial itself is conducted in the same way regardless of the type and severity of the offence.

A preliminary hearing is a court proceeding, but is different from a trial. In a preliminary hearing, the Crown prosecutor has only to convince the judge that there is enough evidence that a judge could find you guilty. In most cases, a trial will be ordered and scheduled to take place several months later in the Superior Court of Justice.

Depending on the nature of your case, there may also be pre-trial motions or hearings that take place immediately before your trial. These often deal with a number of technical legal issues, such as the admission of evidence and the protection of your legal rights under the Charter.

7. Beginning of a Trial (Arraignment)

In the beginning of each criminal trial, the accused must be “arraigned.” This means the charge should be read and the accused must enter their plea: guilty or not guilty. When the plea is not guilty, the trial will start its course.

8. Crown’s Case

The Crown prosecutor goes first. The Crown introduces physical evidence such as a weapon and also puts its witnesses on the stand. These Crown witnesses take the stand to help the Crown’s case against the accused. The Crown asks witnesses questions and their answers become evidence. This line of questioning is called examination-in-chief.

After the Crown asks questions, the defence lawyer (the accused’s lawyer) gets to ask witnesses questions too. The defence does this to poke holes in their answers and defend the accused. This is called cross-examination. During the cross-examination, the defence tries to point out inconsistencies in witnesses’ answers and question their credibility.

After the Crown enters all of its evidence and the cross examination is done, the Crown must close its case. If the Crown closes its case, it will not be able to introduce further evidence, except in limited situations.

9. Defence Case

After the Crown closes its case, the defence side may either

    • ask the court to dismiss the charges because the Crown has not provided enough evidence or
    • if Crown has provided enough evidence to possibly convict the accused, present the other side of the story to the court.

To present the accused’s side of the story, the defence lawyer often calls physical evidence (e.g., phone records) or puts witnesses on the stand in an effort to poke holes in the Crown’s case and create a reasonable doubt in the court’s mind.

Every time the defence puts a witness on the stand, the Crown has a right to cross-examine the witness. It’s only fair that both sides get to examine each other’s witnesses.

The accused may testify too. Note that if you take the stand as an accused you are giving the Crown the right to cross-examine you. The Crown may ask you hard questions to answer. Your lawyer will tell you whether or not it’s advisable to take the stand as the accused.

After the defence presents all of its witness testimony and other evidence the defence side closes its case.

The court usually allows for both sides to make closing arguments and wrap up their side of the story.

10. Verdict

The judge (or the jury) will then review all the evidence and come up with a verdict (decision) of guilty or not guilty. If the verdict is not guilty, the accused walks free. If the verdict is guilty, the trial proceeds to sentencing.

11. Sentencing

When it comes to what sentence the court will give, both sides can again make arguments. The sentence must be proportional to the crime according to s. 718.1 of the Criminal Code (s. 718 elicits the principles of sentencing). It is in the judge’s hands to ultimately decide the sentence. The defence may present to the court why the accused deserves a lighter sentence. The Crown may present to the court why the accused should get a harsher sentence. The judge hears submissions and comes up with an ultimate sentence.

Even if you’re found guilty, there are many penalties that are less severe than a prison term, some of which won’t result in a permanent criminal record. The following table describes eight types of criminal sentence and their impact on your criminal record.

Eight types of criminal sentence

Type of sentence Description Criminal record?
Diversion Diversion is a program offered where an accused “takes responsibility” without admitting guilt. If all the conditions of the diversion program are completed the Crown will withdraw the charges. Common conditions include community service, a letter of apology, attendance in therapy, etc. No
Absolute discharge Not a conviction. This is typically reserved for the most minor of crimes or sympathetic accused. The charge should be removed from your criminal record after 1 year.
Conditional discharge Not a conviction. After 3 years the charge should be removed from your criminal record. There are conditions attached to this type of ruling. Often an accused will need to complete a probation program. You must complete the conditions in order to have the charge removed from your record.
Fine When you are charged with a crime and the judge orders a fine as a stand-alone sentence, there will be no prison sentence. Failure to pay a fine or not making regular payments could result in additional charges. Yes
Suspended sentence A suspended sentence is similar to a conditional discharge in that probation is typically imposed without a prison sentence. Yes
Conditional sentence Aka “house arrest.” You’ll serve time in the community rather than in prison, usually with time away from home severely restricted. The sentence may allow time away from the home to attend work or medical appointments, but this should be canvassed with the sentencing judge in court as it is not automatically attached to the sentence. Yes
Intermittent sentence Prison term served on the weekends. This is only available if the sentence is 90 days or less. This program is not available at all prison facilities. Permanent
Custodial sentence Prison term. If the sentence is less than two years you will be sent to a provincial facility and if it is more than 2 years you will go to a federal facility. There are often options available for early release, but it will depend on the individual circumstances of the offender. Permanent

12. Appeal

If the Crown or the accused do not agree with the court’s verdict or the sentence, they may appeal the conviction or sentence to a higher court. The higher court does not conduct another trial, but looks to see if the lower court made an error that warrants a new trial. The higher court may even toss the conviction and sentence altogether or may confirm both. The higher court has the power to change the sentence too.