Updated August 26th, 2020
The terms “indictable” and “summary” are frequently used in the record suspension process (previously known as a pardon application), but for many individuals it is not always clear what these terms mean or how they affect eligibility for a pardon. Whether an offence is processed “summarily” or “by indictment” has to do largely, but not always, with how serious the particular offence was. These terms are important because they can drastically affect an individual’s eligibility for obtaining a record suspension.
On March 23, 2012, the federal Conservative government passed bill C-10 (sometimes referred to as the Omnibus Crime Bill) into law. This legislation increased the wait periods that must be satisfied before a record suspension application can be processed. The wait periods were changed once again in 2020, this time for the better. The wait periods are now dependent on when an individual was charged with the offence.
If you were charged on or after March 13th 2012 a summary offence carries a 5 year wait period and an indictable offence carries a 10 year wait period. Schedule 1 offences (make clickable) charged within this period are not eligible for a Record Suspension.
If you were charged between June 29th 2010 – March 12th 2012 a summary offence carries a 3 year wait period and an indictable offence carries a 5 year wait period. An individual with a schedule 1 offence (make clickable) must wait a period of 10 years.
If you were charged before June 29th 2010 a summary offence carries a 3 year wait period and an indictable offence carries a 5 year wait period, including Schedule 1 offences.
Due to this change, many people who were not eligible to apply for a record suspension now have the opportunity to apply and receive a fresh start.
These wait periods begin after the completion of all elements of an individual’s sentence, including probation, incarceration, or fine payments. For this reason it is very important that all fines, including restitution and/or victim surcharges, be paid as quickly as possible in order to avoid additional delays in obtaining a pardon.
How do I know if my offence was summary or indictable?
In some cases the legislation is very clear on whether a particular offence is summary or indictable. Some examples of these offences in the Criminal Code include:
Summary offences:
- Taking of a motor vehicle s. 335(1)
- Causing a Disturbance s. 175
- Harassing Telephone Calls s.372(3)
Indictable offences:
- Theft over $5000 s. 334(a)
- Fraud over $5000 s. 380(1)(a)
- Arson s. 433-436
- Robbery s. 344
Some offences such as assault (s. 266), uttering threats (s. 264.1), operation while impaired (s. 253), or possession for the purpose of trafficking (s. 5, Controlled Drugs and Substances Act), are known ashybrid offences, which may be either summary or indictable depending in part on the particular circumstances of the offence. However, the final decision for whether or not these offences are processed summarily or by indictment rests with Crown counsel. If you possess or are interested in obtaining any court records or documents related to your conviction, they may indicate whether or not your particular offence was summary or indictable.
If attempting to obtain court documents, bear in mind that most courts will destroy their records according to their specific court retention schedule. For the purposes of record suspension eligibility, all offences for which there are no court records are treated as indictable, and therefore are subject to the ten-year wait period. This is of specific concern with Ontario courts whose practice is to destroy court records of summary offences after a period of seven years.
Specific offences can be found in the Criminal Code available online from the Department of Justice website, or under other legislation such as the Controlled Drugs and Substances Act, or the Customs Act. If you have any questions about whether or not you would currently be eligible for a pardon, don’t hesitate to contact our offices.
Links to the Legislation
Criminal Code
Controlled Drugs and Substances Act
Customs Act
Youth Criminal Justice Act