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Summary offence

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Title: Summary offence  
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Subject: Crime, Indictable offence, Misdemeanor, Justice of the peace court, Legal Aid Ontario
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Summary offence

A summary offence is a crime in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment (required for an indictable offence).

Contents

  • United States 1
  • Canada 2
    • Summary conviction offences 2.1
    • Indictable offences 2.2
  • United Kingdom 3
  • Hong Kong 4
  • See also 5
  • References 6

United States

In the United States, "there are certain minor or petty offenses that may be proceeded against summarily, and without a jury".[1][2] Any crime punishable by more than six months imprisonment must have some means for a jury trial.[3] Federal law is codified at 18 U.S.C. § 19. Some states, such as California, provide that all common law crimes and misdemeanors require a jury trial.[4][5] Some states provide that in all offenses the defendant may demand a jury trial. (Note that the right to trial by jury is the exclusive right of the defendant, if the defendant chooses to select a bench trial (trial by judge) the prosecution cannot object.)

Contempt of court is considered a prerogative of the court, as "the requirement of a jury does not apply to 'contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States'".[6] There have been criticisms over the practice. In particular, Supreme Court Justice Hugo Black wrote in a dissent, "It is high time, in my judgment, to wipe out root and branch the judge-invented and judge-maintained notion that judges can try criminal contempt cases without a jury."[7]

Also known as:

  • Violation
  • Violation law
  • Violation crime
  • Violation trial

Canada

In Canada summary offences are referred to as summary conviction offences. As in other jurisdictions summary conviction offences are considered less serious than indictable offences because they are punishable by shorter prison sentences and smaller fines. These offences appear both in the federal laws of Canada and in the legislation of Canada's provinces and territories. For summary conviction offences that fall under the jurisdiction of the federal government (which includes all criminal law), section 787 of the Criminal Code of Canada specifies that, unless another punishment is provided for by law, the maximum penalty for a summary conviction offence is a sentence of 6 months of imprisonment, a fine of $5,000 or both.

As a matter of practical effect, some common differences between summary conviction and indictable offences are provided below.

Summary conviction offences

  • Accused must be charged with a summary conviction within 6 months after the act happened. Note that the statute of limitations does not apply to the Criminal Code. Limitation periods are set out in the Criminal Code directly.
  • The police can arrest under summary conviction without an arrest warrant if found committing a summary offense notwithstanding s. 495(2)(c) of the Criminal Code.[8]
  • If the police do not find committing a summary offense, an arrest warrant is required.
  • Accused does not have to submit fingerprints when charged under Summary Conviction.[9]
  • Appeals of summary conviction offences go first to the highest trial court within the jurisdiction (e.g., provincial superior court in Alberta is the Court of Queen’s Bench).
  • After Provincial Superior Court a further appeal would go to the Provincial Court of Appeal (e.g., the Court of Appeal of Alberta), and then finally to the Supreme Court of Canada, but as a practical matter very few summary convictions are ever heard by the Supreme Court of Canada.
  • Accused convicted under summary conviction are eligible for a pardon after 5 years provided the accused is not convicted of any further offences during that period.
  • Almost always heard first in a provincial court (although some exceptions apply, such as a summary conviction offence included for trial with an indictable offence).

Indictable offences

  • There is no time limit to when charges can be laid, e.g. an accused can be charged 20 years after an act has occurred. The exception to this point is treason, which has a 3-year limitation period.
  • Police do not require a warrant to arrest under an indictable offence: see S.495(1)(a) Criminal Code of Canada[10]
  • Accused has to submit fingerprints when required to appear to answer to an indictable offence. [11]
  • Appeals always go to the Provincial Court of Appeal first, and then on to the Supreme Court of Canada.
  • Accused convicted under an indictable offence can apply for pardon after 10 years.

United Kingdom

In relation to England and Wales, the expression "summary offence" means an offence which, if committed by an adult, is triable only summarily; and the term "summary", in its application to offences, is to be construed accordingly. In this definition, references to the way in which an offence is triable are to be construed without regard to the effect, if any, of section 22 of the Magistrates' Courts Act 1980 on the mode of trial in a particular case.[12]

Sir William Blackstone, in his Commentaries on the Laws of England, described summary offences thus:

By a summary proceeding I mean principally such as is directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute offence. But it has of late been so far extended, as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases.

In the United Kingdom, trials for summary offences are heard in one of a number of types of lower court. For England and Wales this is the Magistrates' Court. In Scotland, it is the Sheriff Court or District Court, depending on the offence (the latter being primarily for the most minor of offences). Northern Ireland has its own Magistrates' Court system.

Hong Kong

In Hong Kong, trials for summary offences are heard in one of the territory's Magistrates' Courts.

See also

References

  1. ^ Callan v. Wilson, 127 U.S. 540 (1888)
  2. ^ Duncan v. Louisiana, 391 U.S. 145 (1968)
  3. ^ Lewis v. United States, 518 U.S. 322 (1996)
  4. ^ Ex parte Wong You Ting, 106 Cal. 296 (1895)
  5. ^ Taylor v. Reynolds, 92 Cal. 573
  6. ^ United States v. Barnett, 376 U.S. 681 (1964)
  7. ^ Callan v. Wilson, 127 U.S. 540 (1888)
  8. ^ http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#Arrest_without_Warrant_and_Release_from_Custody__1756491
  9. ^ http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-1/latest/rsc-1985-c-i-1.html
  10. ^ http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html
  11. ^ http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-1/latest/rsc-1985-c-i-1.html
  12. ^ The Interpretation Act 1978, section 5 and Schedule 1 (in the heading "construction of certain expressions relating to offences"), as amended by section 154 of, and paragraph 169 of Schedule 7 to, the Magistrates' Courts Act 1980.
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