Every criminal charge in Canada falls into one of three broad procedural categories: summary conviction, indictable, or hybrid. This classification is not a minor technicality. It generally affects how serious the potential penalty is, which court the matter is heard in, what procedural rights apply, and even how a conviction could later be appealed. This guide explains what each category generally means and why the distinction matters, using real Ontario charge examples. It is general information only, not legal advice about a specific charge.
What Offence Classification Means
The Criminal Code divides offences into these categories largely based on how serious Parliament considers the conduct to be. Some offences are always treated as less serious and proceed as summary conviction matters. Others are always treated as serious and proceed by indictment. A large number of Criminal Code offences, however, are "hybrid" (sometimes called "dual"), meaning the Crown prosecutor decides, generally early in the case, which procedure to follow.
This classification exists in the Criminal Code itself: the section creating an offence generally states whether it is summary, indictable, or hybrid, and sets out the maximum penalty for each path. It is worth checking the specific section for any given charge, since the label can shift depending on details like dollar value, injury caused, or the age of a complainant.
Summary Conviction Offences
Summary conviction offences are generally treated as the least serious category. They are tried in the Ontario Court of Justice, without a preliminary inquiry and without a jury, and the accused does not choose the mode of trial. True summary-only offences in the Criminal Code tend to involve relatively minor conduct; the site's charge pages mostly cover offences serious enough to also carry an indictable route, which is why the concrete examples below are hybrid or straight indictable rather than summary-only.
Indictable Offences
Indictable offences are generally treated as the most serious category and carry the highest maximum penalties. Depending on the specific offence, an accused charged with an indictable offence may have a choice, called an election, between trial in the Ontario Court of Justice by a judge alone, or trial in the Superior Court of Justice by a judge alone or by a judge and jury. A small number of very serious offences, discussed further in our guide to jury trials, must be tried by a judge and jury in the Superior Court, with only limited exceptions.
Some offences are "straight indictable," meaning there is no summary conviction option at all. Perjury is one example: it carries a maximum penalty of 14 years imprisonment with no summary route. Homicide offences are indictable only as well, reflecting the seriousness Parliament attaches to this conduct.
Hybrid Offences and the Crown's Election
Many common Criminal Code offences are hybrid, meaning the offence itself can be prosecuted either way, and the Crown decides which path to take. This decision is often called the Crown's "election." Until the Crown elects, and sometimes even afterward depending on the stage of the case, a hybrid offence is generally treated as indictable for certain procedural purposes, such as limitation periods, though it may ultimately proceed summarily.
Assault, mischief, and theft under $5,000 are all examples of hybrid offences on this site. In each case, the Crown considers the circumstances, such as the severity of the alleged conduct, any injury involved, and the accused person's record, in deciding whether to proceed summarily or by indictment.
Why the Crown's Election Matters
The Crown's election is not a mere label. It generally affects three practical things at once:
- Maximum penalty. Proceeding summarily generally caps the potential sentence at a lower maximum than proceeding by indictment, since the indictable route on a hybrid offence usually carries a significantly higher ceiling.
- Trial venue and procedure. Electing summary conviction keeps the matter in the Ontario Court of Justice with no jury option and no preliminary inquiry. Proceeding by indictment can open up the possibility of a preliminary inquiry, a Superior Court trial, and, for many indictable offences, a choice of judge alone or judge and jury.
- Appeal route. As discussed further below, summary conviction and indictable matters generally follow different appeal routes through the courts.
Because the election affects so much, defence counsel will often make submissions to the Crown about which route seems appropriate, particularly early in the case, sometimes during resolution discussions.
The Crown's decision on a hybrid offence is not fixed in stone the moment charges are laid. Understanding when and how it can be raised, and what factors the Crown generally considers, is something a lawyer can address for a specific case.
The Default Summary Conviction Maximum
Section 787 of the Criminal Code sets a general default maximum penalty for summary conviction offences: unless a specific section says otherwise, the maximum is a fine of not more than $5,000, imprisonment of not more than two years less a day, or both. This default was raised from six months to two years less a day by amendments in Bill C-75, which came into force in September 2019. Some individual summary conviction penalties are set lower by the specific section creating the offence, so the section 787 figure is a general ceiling, not a guarantee of what any one charge carries.
The "two years less a day" phrasing matters procedurally as well as practically, since a sentence of two years or more is served in a federal penitentiary rather than a provincial correctional facility, and the "less a day" formulation keeps summary conviction sentences within provincial jurisdiction.
Trial Venue and Procedure
Summary conviction matters are always heard in the Ontario Court of Justice. Indictable matters may be heard there as well, depending on the offence and any election, or in the Superior Court of Justice. Our judge alone trials and jury trials guides go into more detail on how the election between these options generally works and when it is available at all.
Appeal Routes Differ Too
Appeal routes generally track the classification of the offence. A summary conviction appeal is generally heard first by a single judge of the Superior Court of Justice, with a further appeal to the Court of Appeal for Ontario generally requiring leave and generally limited to questions of law. An indictable conviction, by contrast, is generally appealed directly to the Court of Appeal for Ontario, typically before a panel of three judges, and can potentially be argued on questions of law, fact, or mixed law and fact, again generally requiring leave for factual grounds. See our guide to appeals for more detail.
Examples From Real Charges
Looking at real Criminal Code charges helps make the classification system more concrete:
- Straight indictable: perjury, homicide offences, and aggravated assault carry no summary conviction option at all.
- Hybrid: assault, mischief, and theft under $5,000 can proceed either way depending on the Crown's election.
- Mixed by circumstance: sexual assault under section 271 is hybrid, while more serious variants under sections 272 and 273, involving a weapon, bodily harm, or aggravating factors, are indictable only.
Frequently Asked Questions
Can the Crown change its election later in the case?
Rules around when and how an election can be changed are technical and depend on the stage of the case. A lawyer can explain what is possible in a specific matter.
Does a hybrid offence stay on a criminal record differently depending on the election?
The record itself reflects the offence and how it was resolved, but how it is treated for purposes such as future record suspensions can depend on which route was taken. See our criminal records section for general information.
Is a hybrid offence less serious than a straight indictable one?
Not necessarily. Being hybrid means the Crown has flexibility, not that the underlying conduct is automatically minor. The actual circumstances of a case drive the Crown's decision.
Do I get to choose whether my hybrid charge proceeds summarily or by indictment?
No. The election on a hybrid offence belongs to the Crown, not the accused. What the accused may get to choose, once the Crown proceeds by indictment, is the mode of trial for certain offences, discussed in our judge alone and jury trial guides.
Where can I find the classification for a specific charge?
Many of this site's charge pages include a classification section. A lawyer reviewing your specific disclosure can confirm exactly which section and classification applies.
Why does the classification affect bail?
More serious classifications can affect how a bail hearing unfolds and, in some circumstances, which side bears the burden of justifying release. See our bail hearings guide for more.