Hybrid Offence: defined

 

 Hybrid Offence

While the Criminal Code of Canada creates a hybrid offence, an individual does not commit a hybrid offence. The individual, in each set of circumstances, commits an offence. The mechanism for determining whether it will be prosecuted in a manner in which he or she will be guilty, on conviction, of an indictable offence or a summary conviction offence is the Crown discretion.

Technically, a hybrid offence is an indictable offence until the Crown elects to proceed by way of summary conviction; R. v. Ellerbeck reflex, (1981), 61 C.C.C. (2d) 573.

Section 34 (1) of the Interpretation Act, R.S.C. 1993, c. I-21 provides:

34. (1) Where an enactment creates an offence,

(a)        the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment;

(b)        the offence is deemed to be one for which the offender is punishable on summary conviction if there is nothing in the context to indicate that the offence is an indictable offence; and

(c)        if the offence is one for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, no person shall be considered to have been convicted of an indictable offence by reason only of having been convicted of the offence on summary conviction.

In Dallman v. R., [1942] 3 D.L.R. 145, the Supreme Court of Canada considered a provision of the Criminal Code creating the offence of conspiracy with respect to indictable offences. Kerwin, J., delivering the judgment of the court, stated:

In our view . . . all that is meant by "indictable offence" in s. 573 of the Code is that the offence as to which a conspiracy is charged may be prosecuted by indictment.

If the Crown proceeds in a court with summary conviction jurisdiction but does not specify the mode of procedure, it is deemed to have elected to proceed summarily. See R. v. Robert (1973), 13 C.C.C. (2d) 43 (Ont. C.A.); R. v. Bee (1976), 28 C.C.C. (2d) 60 (B.C.C.A.) and R. v. Dosangh (1977), 35 C.C.C. (2d) 309 (B.C.C.A.).

In hybrid offences, the same essential elements must be proven whether the Crown elects to proceed by way of indictment or by summary conviction. Once an offence under s. 252 has been determined by the Crown to be a summary conviction offence, the provisions of the Criminal Code relating to summary conviction offences apply, not procedures relating to indictable offences. The Crown's option has been exercised: the case has been determined to be less serious than an indictable offence and the procedure is less formal. The Crown cannot arbitrarily reverse its decision and arrive at a different result; there must be sound reasons to justify such a change. The Crown's election is protected by a strong presumption of regularity and the offence is deemed to have been correctly characterized. The exercise of the Crown's discretion is subject to judicial review only for "flagrant impropriety" (Balderstone) or "improper or arbitrary motives" (Beare).