In Canada, the criminal law has a statute of limitations only for pure summary offences. The charges for indictable-only and hybrid offences, for example, murder, fraud, or sexual assault, are generally not limited in time, which means that the Crown can start the proceedings years later. Below, we explain the statutory limitation period for summary conviction, why hybrid offences have no real time limit in practice, and what to do if you are charged with a historical offence.
Key Takeways
- The statute of limitations in Ontario generally applies only to summary charges.
- Generally, hybrid charges are not time-limited, since the Crown can choose indictment proceedings that can be started years or even decades after the alleged occurrence.
- The Charter and court rulings protect the accused from unreasonable trial delays once the charges have been laid.
- Involving a criminal defence lawyer early for historical charges can be critical in limiting exposure.
What “Statute of Limitations” Means — and Why Canada Is Different from the US
In criminal law, a statute of limitations is generally defined as a period starting from the moment the alleged crime occurred until a certain date after which the charges cannot be brought. Unlike the United States, which applies different statutes of limitations for various crimes, Canada only has one for some summary offences. In general, the Criminal Code of Canada does not limit the Crown’s ability to bring in the charges after the act, except when the charges are pursued summarily.
The 12-Month Rule for Summary Conviction Offences (s. 786(2))
In the Canadian Criminal Code, the main statute of limitations is defined for pure summary conviction offences. In this type of conviction, the maximum criminal penalty is two years less a day, a fine of $5,000, or both.
According to Section 786(2) of the Criminal Code, the Crown cannot lay the charges for summary conviction once the 12 months have passed after the moment of the alleged offence, unless the prosecution and the defendant agree. Importantly, the Crown can bypass this statute of limitations for hybrid offences, selecting the procedure by indictment over summary conviction.
Limitation Periods by Offence Type
The table below summarizes the statute of limitations and the difference between summary and indictable offences, as well as hybrid offences, which can be treated as either.
| Type of Offence | Statute of Limitations in Canada | Examples |
|---|---|---|
| Summary | 12 months after the alleged offence. | The Criminal Code defines a limited number of crimes as purely summary offences. Generally, these include less serious offences, such as causing disturbance in a public place or taking a vehicle without consent. |
| Strict indictable | No statute of limitations applies. | Generally, the criminal law makes most serious offences strict indictable. These include murder, manslaughter, and kidnapping, among others. |
| Hybrid | No statute of limitations applies if the Crown chooses to proceed by indictment, or 12-month statute of limitations if the Crown proceeds summarily. | Many crimes in the Criminal Code of Canada are defined as hybrid offences, where the Crown can elect the type of proceedings. The range of hybrid offences spans from non-violent crimes such as failure to appear in court to the most serious ones, such as assault with a weapon. |
Why Hybrid Offences Have No Real-Time Limit
For hybrid offences, the Crown may elect to proceed either summarily or by indictment. The choice of proceedings, known as Crown election, is generally based on the severity of the offence, public interest, and the individual circumstances of the case.
For the accused, the ability of the prosecution to choose the form of proceedings creates uncertainty in relation to both potential penalty and statute of limitations. If the Crown elects summary proceedings, the 12-month time limit would apply. In indictment proceedings, there is no real time limit, which means someone can face charges years later after the alleged act.
Historical Charges: Why You Can Be Charged Decades Later
When someone commits a criminal offence with no statute of limitations, they can face criminal prosecution at any time in their life. In practice, sexual offences belong to the most common charges that are often brought years or decades later.
While physical evidence or witness testimonies may not be available over the years, it generally does not prevent the Crown from raising historical charges. Those who face these circumstances may benefit from having legal advice from an experienced sexual assault lawyer to limit their potential exposure and minimize risks.
Charter Protection Against Delay: R. v. Jordan and Section 11(b) of the Charter
In Canadian criminal law, the defendant is protected by the statute of limitations for summary offences. Additionally, Section 11(b) of the Charter of Rights and Freedoms protects someone charged with an offence from unreasonable delay in proceedings.
In R v. Jordan, the Supreme Court of Canada went further by establishing specific time limits of 18 or 30 months for different levels of court in which the trial is being held. If the delay exceeds the specified time limits, the courts can generally presume the delay to be unreasonable and have the charges stayed.
Charged with a Historical Offence? What to Do Right Now
If you face allegations for a historical offence, it is in your best interest to avoid making any statements to the police or third parties and engage a criminal defence lawyer as early as possible. Preserving relevant records may help support your version of events and build a line of defence.
While the Charter protects you from unreasonable delay in proceedings after the charges have been laid, there is no statute of limitations for indictable offences, as well as for hybrid offences where the Crown proceeds by indictment. For more information and tailored defence, contact Vilkhov Law criminal lawyers to have a free initial consultation.
FAQs
Is there a statute of limitations on sexual assault in Canada?
Generally, there is no statute of limitations in Canada that applies to sexual assault. It’s a hybrid offence where the Crown can proceed summarily or by indictment. While summary charges can be laid within 12 months after the alleged offence, there is no statute of limitations for indictment charges.
Can you be charged for something that happened 20 years ago?
Yes, generally, the Crown can lay the charges for offences that happened decades ago by choosing indictment proceedings. The Criminal Code sets no statute of limitations for indictment-only offences. In addition, the criminal law allows the Crown to choose between summary and indictment charges in hybrid offences, for example, sexual assault.
What is the time limit for assault charges in Ontario?
In Ontario, the limit for assault charges, defined by Section 786(2) of the Criminal Code, applies only if the prosecution chooses summary proceedings. If the assault charges are laid by indictment, no time limit is generally applicable.
Does the 12-month limit apply to domestic assault?
Domestic assault is a hybrid offence where the Crown can choose to lay the charges summarily or by indictment. In summary proceedings, a 12-month statute of limitations applies. However, if the Crown decides to proceed by indictment, no limitation period restricts the charge.
Can summary charges be revived as indictable?
Generally, once the Crown chooses summary proceedings for the charges, it usually cannot later change the same charge to an indictment. Accordingly, a Crown election in a criminal case can significantly affect the defendant’s exposure.
