Criminal Code Classification: Summary, Indictable, and Hybrid Offences
The Criminal Code of Canada classifies crimes into three types: (a) summary conviction offences, (b) indictable offences, and (c) hybrid offences. Summary offences are relatively lighter crimes, akin to misdemeanor. Indictable offences are more serious in nature, similar to felonies. Hybrid offences, which most of crimes fall under the Criminal Code, are offences for which the prosecution has discretion to consider the offence as a summary offence or indictable offence, based on the circumstances and the particulars of the crime.
For instances, making child pornography is an indictable offence, carrying the maximum penalty of 14 years in jail. Driving someone else’s car without permission is a summary conviction offence, carrying the maximum penalty of 6 months and $5000 of fine. Simple assault is a hybrid offence, for which if the prosecution elects to proceed by way of summary conviction, the maximum penalty is 6 months imprisonment and $5000 fine, but if the prosecution prefers indictment, the maximum penalty is 5 years in jail.
Immigration and Refugee Protection Act Classification
Unlike the Criminal Code Classification, the Immigration and Refugee Protection Act deems a hybrid offence to be indictable. This in turn has grave consequences for foreign nationals and permanent residents.
First, foreign nationals and permanent residents become inadmissible to Canada upon conviction of an offence that carries a maximum penalty of 10 years imprisonment, or receives actual sentence of 6 months or over in jail. In the case of child pornography, if a permanent resident pleads guilty or is found to be guilty after trial, the person may lose the permanent resident status and be deported.
At this time, permanent residents may appeal to the Immigration and Refugee Board of Canada. However, foreign nationals have no right of appeal.
Second, non-permanent resident foreign nationals’s work permit or study permit will be revoked upon conviction of two summary conviction offences, not arising out of the same set of transactions, or upon conviction of an indictable offence.
For example, if a foreign national is charged with simple assault, the prosecution elects to proceed by way of summary conviction, and the foreign national is convicted, then he or she is considered to have been convicted of an indictable offence under the immigration law.
One of the most common offences in Canada is drinking and driving. It used to be a hybrid offence for which the maximum penalty was 5 years imprisonment. However, in December 2018, the Criminal Code was amended and now drinking and driving offence carries the maximum penalty of 10 years in jail, so that if a permanent resident is convicted of this, then the person becomes inadmissible.
Criminal cases may significantly vary in terms of result based on the circumstances of the offence, the accused’s background, the police’s investigation, the prosecution’s discretion and election, the lawyer’s experiences and abilities, and the judge’s sympathy.
Therefore, it is important to retain a trustworthy lawyer and seek effective assistance.
*Nothing in this article constitutes a legal advice.