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Types of Offences

An offence can go through the criminal justice system in one of two ways. The first is directly to trial and the second is through a preliminary hearing and then to trial. Witnesses will testify twice in some cases - at both a preliminary hearing and a trial.

There are three types of offences which help determine if there will be a trial and a preliminary hearing or just a trial: summary, indictable and hybrid(or dual).

Summary and Indictable Offences

Many offences have a maximum jail sentence of six months and a maximum fine of $2,000.00. These offences are called summary offences and are proceeded with 'summarily' or without delay. As the associated sentences are not as serious as they are for other offences, trials for summary offences are held in Provincial Court before a provincial court judge.

For offences where the sentence is longer than six months and because these offences may have a more significant consequence to the accused if convicted, in most cases the accused has a choice as to what level of court will hear the trial. These are called indictable offences and are proceeded with 'by indictment' or formal written accusation naming specific persons and crimes .

For indictable offences, with exceptions such as murder, the accused can choose to:

  • have the trial held in Provincial Court before a Provincial Court judge. If the accused is found guilty, the potential maximum sentences are still those of an indictable offence
  • have the trial held before a Supreme Court judge or before a Supreme Court judge and a jury, with a preliminary hearing held in Provincial Court.

In a Supreme Court trial, because there are two hearings, the case usually takes longer to conclude. In addition, because the Supreme Court does not sit in all locations which have a Provincial Court, sometimes the trial will be in a different community than the preliminary hearing. Another noticeable difference is that in Supreme Court, whether or not there is a jury, the lawyers are 'gowned', that is they wear a standard short waisted black jacket, white shirt with collar and tabs and a black gown over all. Lawyers and judges in Canada do not wear wigs, as is the custom in England.

For witnesses, a difference is that they may have to testify both at a preliminary hearing and at a trial versus a trial alone.

Hybrid or Dual Offences

Some offences are called hybrid or dual offences because they can be prosecuted either summarily or by indictment. Crown counsel make the decision as to which method of proceeding will be used. For hybrid offences, the Criminal Code sets out a maximum fine and jail sentence for both summary and indictable procedures.

In cases where offences are significant, and Crown chooses to proceed summarily (which usually carries a sentence maximum of 6 months), the maximum penalty may be higher. For example, sexual assault has a maximum jail sentence of 18 months, rather than 6 months..

If Crown chooses to indict the accused, the accused may choose trial in Provincial Court or in Supreme Court with a judge or judge and jury.

Crown counsel must advise the court of the procedure to be followed prior to the accused entering a plea (guilty or not guilty), so that the accused can make his or her election (choice) and the appropriate dates for preliminary hearing or trial can be set.

If the accused elects to be tried in Supreme Court, the accused does not enter a plea in provincial court, but can, at any time until the conclusion of the trial in Supreme Court, decide to enter a plea of guilty and proceed to sentencing.

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