Crown Elects, Mistakenly, to Proceed Summarily Outside the Six Month Time Limit in Criminal Code -- Can Crown Reelect?

Crown Elects, Mistakenly, to Proceed Summarily Outside the Six Month Time Limit in Criminal Code -- Can Crown Reelect?

A hybrid offence can proceed either by indictment or on summary conviction at the election of the Crown. A summary conviction matter, however, is subject to a time limit. Section 786(2) of the Criminal Code provides:

No proceedings shall be instituted more than six months after the time when the subject-matter of the proceedings arose, unless the prosecutor and the defendant so agree.

So what happens if a hybrid offence information is laid more than six months after the subject-matter of the proceeding arose and the Crown elects to proceed summarily?

The Ontario Court of Appeal has held, in R. v. P. W. K., 1998 CanLII 7145, that the information remains valid:

It is likewise common ground that the information itself is not void. If it was otherwise a valid information charging an indictable offence, it remains so. R. v. Karpinski (1957), 117 C.C.C. 241 (S.C.C.).

As a result, if the first charge, for which a summary election is made, is withdrawn the Crown may lay a new information and proceed by indictment.

This week’s Alberta Court of Appeal decision in R. v. Dudley, 2008 ABCA 73 considered whether the Crown could reelect after making a mistaken election to proceed summarily and proceed by indictment. The short answer is “yes” as set out in the first paragraph of the decision:

[1] An information charging a Criminal Code hybrid offence which is laid more than six months after the alleged offence occurred is not invalidated by the Crown mistakenly making an election to proceed summarily. Nor is the Crown precluded from re-electing to proceed by indictment once that error is discovered unless the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency.