Crown Election - summary conviction or indictable

Crown Election - summary conviction or indictable 

The election made by the Crown is deemed to be a considered one and the product of a deliberate choice. Counsel for the Crown decides whether to proced by way of Summary Conviction or Indictment. Thereafter, the Defendant's plea will be taken taken, the trial begins...

The election, to proceed by summary conviction therefore, must be taken to signify that if the Crown was prepared to treat the charge against the Defendant as not being sufficiently grave to warrant proceeding with it by indictment. In brief, it was willing to go ahead with the trial on the understanding that, if convicted, the appellant would be exposed to a less severe punishment than if the charge was proceeded with by indictment.

Hybrid Offence Definition:

A criminal offence for which the prosecutor has the option of charging as an offence punishable by summary conviction or as an indictable offence. 

The concept of a hybrid offence is captured by Justice Salhany, in 2008, as follows:

" ... some crimes such as the dangerous operation of a motor vehicle, vessel or aircraft and impaired driving have been invested with the dual or hybrid character of being both indictable and summary conviction offences.

"In such instances, the Crown (prosecutor) has the absolute right to elect how the offence will be prosecuted unless the defence can establish that the Crown's election amounts to an abuse of process.

"Neither the Court nor the defence has the right to direct the Crown how it must proceed.

"Moreover, it has been held that the Crown's choice, once made, is not exhausted, particularly where it has the consent of the defence."

In R v Boutillier, Justice Freeman of the Nova Scotia Court of Appeal wrote:

"The offence the respondent was alleged to have committed was, therefore, in the eyes of the legal system and of the world, a summary conviction offence, that is, a relatively minor one, not serious enough to justify proceedings by indictment.

"While (the Criminal Code) 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.

" ... a hybrid offence is an indictable offence until the Crown elects to proceed by way of summary conviction."