Is a DUI a Felony Offence in Canada?
"Clients faced with serious DUI charges because of an accident, injuries, or death tend to ask us if they are being charged with a 'felony,'" says TorontoDUI co-founding partner Jeff Mass. " I usually tell such clients that it could be treated as a felony offence in the U.S., but that Canada does not classify crimes as felonies or misdemeanours. "
Jeff's co-partner Robbie Tsang adds, " Instead, Canada classifies most crimes as an 'indictable' or a 'summary conviction' offence. However, most DUIs are treated as a 'hybrid' offence because the Crown can opt whether to prosecute the offence under the more serious indictable category, or as a more lenient summary conviction one. As for clients charged with DUI causing death, they're charged solely under the indictable category, which is the near equivalent to a U.S. felony."
Let's clear up any misconceptions among Canadians about "felony DUI" by examining how our Criminal Code categorizes the offence and how it works in practice. Read on.
U.S. and Canadian Criminal Categorizations are Similar
In the U.S., the federal government and individual states categorize crimes as felonies, misdemeanours, and infractions. Felonies, as you likely surmise, describe the most serious crimes and carry the harshest punishment—typically lengthy prison sentences and large fines—upon conviction. Misdemeanours are less serious offences that may or may not impose a relatively short term of incarceration and/or fines and probation. Infractions are minor offences—such as traffic violations, littering, or making a disturbance—that typically carry small fines.
Canada categorizes criminal offences solely at the federal level as either indictable or summary conviction offences, with a third hybrid category that allows the Crown to choose which one to use in their prosecutions. An indictable offence is like a U.S. felony, while a summary conviction offence is the near equivalent of a U.S. misdemeanour. Provinces establish regulatory offences that are the equivalent to U.S. infractions. As with infractions, these do not constitute "criminal" offences nor result in a criminal record.
Differentiating Indictable from Summary Conviction Offences
The easiest way to understand the difference between an indictable and a summary conviction offence in Canada is that almost all summary conviction offences carry a maximum sentence of two years' incarceration and/or a $5,000 fine. Indictable offences can carry substantially harsher penalties—up to life in prison for some crimes—and are more likely to have mandatory minimum sentences. Some other key differences include:
- Trial procedures are simpler with summary conviction offences.
- Summary conviction offences are always addressed in provincial court, whereas some indictable offences are heard before the superior court.
- Summary conviction offences are heard before a judge alone, while certain indictable offences are adjudicated before a jury.
- Appeals are more restricted for summary conviction decisions than they are for indictable ones.
- Courts are provided more time to commence proceedings in indictable offence cases.
Note that regardless of the category under which someone is charged, a conviction results in a criminal record. Thus, anyone charged with a criminal offence should seek advice from an experienced defence lawyer, like those at TorontoDUI.
How a Canadian DUI Rises to the Equivalent of a U.S. Felony
In general, Canadian Crown prosecutors elect to charge most routine DUIs—impaired operation, over 80, refusing mandatory screening , or care and control—as a summary conviction offence. As with other hybrid offences, provincial Crown prosecution offices establish guidelines to determine whether to prosecute the offence by indictment or summary conviction. Such guidelines typically encourage prosecutors to consider all circumstances relevant to the case and any aggravating factors that might warrant a harsher punishment in an indictment. Aggravating factors can include:
- Excessive speed, racing, fleeing from the police, or other exceptionally dangerous driving during the incident.
- The impairment is believed to have contributed to an accident or property damage.
- Vulnerable people were threatened by the accused's actions.
- The accused's actions breached a court order.
- High blood alcohol concentrations.
- A criminal record.
- Prior traffic-related violations.
Absent any aggravating factors, prosecutors generally lack justification for making the charges indictable. Even in cases involving DUI causing bodily injury, a prosecutor may opt to proceed via the summary conviction category if there are no other aggravating factors.
However, DUI causing death is a straight-up indictable offence. Section 320.21 of the Criminal Code proscribes a maximum punishment of imprisonment for life and a mandatory minimum punishment of:
- $1,000 fine for a first offence.
- 30 days' incarceration for a second offence.
- 120 days' incarceration for each subsequent offence.
DUI causing bodily harm also carries substantial punishment when charged as an indictable offence, with a 14-year maximum sentence and the same minimums as DUI causing death. Because it's a significant aggravating factor, such cases are far more likely to be charged by indictment than as a summary conviction offence. And even though an indictable DUI charge might impose relatively mild minimum sentences, know that Canadian courts tend to punish those convicted aggressively.
Felony DUI in Canada Equals "Indictable" DUI
While there is no legal "felony DUI" categorization in Canada, the term is frequently used. Now you know that when someone refers to a "felony DUI" in Canada, they are referencing a DUI charged as an indictable offence. This is a severe offence with potentially dire consequences if convicted. Thus, anyone charged with the felony DUI equivalent should always seek expert legal representation.
In fact, no matter what level of DUI charges you might be facing, you should always seek the counsel of a skilled defence lawyer. A DUI defence lawyer might not be cheap, but the costs of a DUI conviction can break the proverbial bank in myriad ways.
With decades of combined experience and a stellar record of DUI defence success, contact the experts at TorontoDUI today to schedule your free consultation.
Frequently Asked Questions About DUI As a "Felony" in Canada
What is a Summary Conviction Offence?
Section 787 of the Criminal Code does not specifically define the term but establishes a default penalty that characterizes it as any offence in the Code punishable on conviction with a maximum penalty of a $5,000 fine and/or a maximum term of imprisonment of two years less a day.
What is an Indictable Offence?
The Criminal Code does not specifically define "indictable offence." Instead, specific provisions in the Code distinguish between whether an offence is indictable (or hybrid) and prescribe applicable punishments for such offences. The criminal justice system generally recognizes any offence that carries a sentence of more than two years' imprisonment and/or a $5,000 fine as an indictable offence. Indictable offences are also distinguished by the difference in the procedural legal steps taken to adjudicate them.
OK, How Are Felonies Defined in the U.S.?
While each U.S. state has its own distinct definition of the term, the federal government deems a felony to be any criminal offence that carries a maximum sentence exceeding one year imprisonment. Most states use this standard in their distinct definitions of the term.
Can Canadian Defence Lawyers Negotiate an Indictable Offence Down to a Summary Conviction?
Yes, especially for hybrid offences in the Criminal Code. Through pretrial negotiations, a defence lawyer may be able to convince the Crown to proceed by way of summary conviction rather than by indictment. However, with a strictly indictable offence, defence lawyers face a greater challenge in convincing the Crown to reduce the charges to a lesser summary conviction offence. Such plea bargains typically require the accused to enter a guilty plea to the lesser charge, and must be approved by the judge, who must believe it will not undermine the public's faith in the justice system.
