The prosecution must choose whether to proceed summarily or by way of indictment when an accused is charged with a hybrid criminal offence.
Prior to the Crown’s election at the accused’s first court appearance, a hybrid offence is deemed to be indictable. As Justice Fish stated, speaking for the majority of the Supreme Court of Canada, in R. v. Dudley, 2009 SCC 58 at para. 21:
…hybrid offences are deemed to be indictable unless and until the Crown elects to proceed summarily. Thus, speaking for the Nova Scotia Court of Appeal in R. v. Paul-Marr, 2005 NSCA 73, 199 C.C.C. (3d) 424, at para. 20, Cromwell J.A. (as he then was) explained that "where an offence may be prosecuted by either indictment or on summary conviction at the election of the Crown, the offence is deemed to be indictable until the Crown elects to proceed by way of summary conviction...". Likewise, in R. v. C. (D.J.) (1985), 21 C.C.C. (3d) 246, at p. 252, MacDonald J., speaking for the Prince Edward Island Supreme Court, Appeal Division, stated that "in the case of a hybrid offence once the Crown elects to proceed by way of summary conviction the offence is no longer deemed to be an indictable offence". And in Canada (Attorney General) v. Trueman, P.C.J. (1996), 83 B.C.A.C. 227, at para. 13, once more for a unanimous court, McEachern C.J.B.C. held that hybrid offences "are deemed by s. 34 of the Interpretation Act ... to be indictable [and] remain indictable unless the Crown elects to proceed by [page581] summary conviction". (Emphasis added throughout.)
· Interpretation Act
s. 34(1) Where an enactment creates an offence,
(a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment…