In Canadian criminal law, there is no universal statute of limitations, as people usually imagine it. That is, there is no specific piece of legislation preventing the police from charging someone with all offences after a specified amount of time has passed. In general, someone can be charged years after the alleged crime took place. However, there are exceptions.

Section 786(2) of the Criminal Code creates a limitation period that currently limits the initiation of a summary conviction prosecution if more than 12 months have elapsed since the date of the alleged offence. A variety of summary conviction offences can also be found in other pieces of legislation that may include a defined limitation period. For example, in Alberta, a six-month limitation period applies to offences under the Provincial Offences Procedure Act. This blog post will use the limitation period from the Criminal Code because it is the most relevant to the criminal justice system.

For criminal offences, there are two avenues for a prosecution to proceed: either by summary conviction (also referred to as ‘summarily’) or by indictment. The limitation period prevents police from charging someone with an offence that will proceed summarily more than 12 months after the offence took place. As the limitation period only applies to summary conviction prosecutions, it is important to understand what offences are tried summarily.

In Canada, there are three types of offences: indictable, summary conviction, and hybrid.

Indictable Offences

Indictable Offences (referring to offences that are purely indictable) are often amongst the most serious criminal offences and are prosecuted solely by indictment.

Examples of indictable offences are murder, kidnapping, and trafficking a substance listed in Schedule I or II of the Controlled Drugs and Substances Act. This type of offence can attract the most severe sentences, including life imprisonment in many cases. Indictable offences can be tried by either judge alone (at one of two different levels of court) or by a judge and jury together.

The limitation period does not apply to this type of offence. An individual can be charged with an indictable offence years – even decades – after the offence took place.

Summary Conviction Offences

Summary Conviction Offences (referring to offences that are purely summary conviction) are the least serious and are usually meant to be resolved more quickly. These offences are prosecuted summarily. They are tried by a judge with no option for a jury.

The maximum sentence for most summary conviction offences is a $5000 fine and imprisonment of less than two years, subject to other sentencing options such as probation, conditional sentence orders, and so forth. Causing a disturbance, public nudity, and carrying a weapon while attending a public meeting are examples of pure summary conviction offences.

The limitation period applies to this type of offence. An individual cannot be charged with a pure summary conviction offence once the 12-month limitation period has elapsed. There are relatively few of these offences in criminal law.

Hybrid Offences

Hybrid Offences can proceed either by summary conviction or by indictment depending on how the prosecution chooses to proceed. By assessing the circumstances of the alleged offence, and the individual involved, the prosecution can decide which option to choose.

If the offence was serious, causing damage or bodily harm for example, the prosecution may be more likely to elect to proceed as an indictable offence with the potential for a greater sentence. If the circumstances are trivial, the prosecution may be more likely to elect to proceed by summary conviction to have the matter concluded more quickly. The vast majority of criminal offences in Canada belong in this category, including impaired driving, theft, many types of simple drug possession, and assault.

The complication arises because it is the prosecutor that decided whether to proceed summarily or by indictment, not the police who charge the individual. If the police were to charge someone with a hybrid offence more than 12 months after the offence took place, the prosecution would be statutorily barred from proceeding summarily (unless the defence consents to that). However, the prosecution could simply elect to proceed by indictment to avoid the restriction of the limitation period.

How to proceed is within the prosecutor’s discretion and little justification for the decision is required. As such, an individual is only protected by the 12-month limitation period if the alleged offence is purely a summary conviction offence that cannot proceed by indictment.

If you’re in need of assistance, contact DDSG Criminal Law today.