The terms “criminal” and “penal” are frequently used back-to-back. Just think, for example, of the name of the Director of Criminal and Penal Prosecutions (DPCP). But what distinguishes criminal law from penal law? We explain the difference between a criminal offence and a penal offence.
The criminal offence
A criminal offence is what is more commonly referred to as a crime. In Canada, crimes are defined primarily in the Criminal Code, the Controlled Drugs and Substances Act, the Youth Criminal Justice Act and the Firearms Act. The power to pass criminal laws is a federal one, which means that the criminal law is the same across Canada.
Criminal offences are more serious than penal offences. However, there are different types of criminal offences, which are also distinguished according to their seriousness. A criminal offence may be punishable by summary conviction or by indictment.
Summary procedure
Summary conviction offences are less serious than those punishable by indictment. They include, for example, disturbing the peace or being naked in public. This type of offence can carry a prison sentence of up to two years minus a day.
The procedure for a summary conviction offence is shorter than for an indictment. In this case, it is not possible to have recourse to a preliminary inquiry.
Summary conviction proceedings come with a one-year limitation period, which means that the prosecution has one year after the offence is committed to commence proceedings, unless the accused agrees to extend the limitation period. While it may seem counterintuitive, an accused may wish to extend this time limit in the case of a hybrid offence where he or she is likely to be prosecuted by way of indictment.
Indictment
Indictable offences are considered the most serious. This includes offences such as murder and the use of a firearm in the commission of an offence. The most severe penalty for this type of offence, which is also the most severe penalty available in criminal law, is life imprisonment.
There is no statute of limitations for this type of offence. A person who has committed an indictable offence can therefore be prosecuted years after the fact.
Hybrid offences
There are also hybrid offences. This means that the Crown prosecutor has the choice of proceeding on summary conviction or by indictment. For example, rioting, assault and sexual exploitation are hybrid offences.
Because of the principle of restraint, in the case of a hybrid offence, the prosecutor should prefer summary conviction, unless there are indications that warrant prosecution by way of indictment. For this purpose, factors such as the subjective seriousness of the offence, criminal record and aggravating circumstances are relevant.
The majority of criminal offences are hybrid. However, when the Criminal Code does not specify what type of offence it is, it must be concluded that it is a summary conviction offence.
Penal offence
A penal or statutory offence occurs when there is a contravention of a law or regulation. The penal offence is not a crime. The laws or regulations in question may be federal, provincial or municipal. This includes violations of the Highway Safety Code as well as violations of municipal by-laws relating to parking, public transit, garbage collection, etc.
In the event of a contravention, a statement of offence is issued. Generally speaking, the penalty for this type of offence is a fine. In the event of a contravention of the Highway Safety Code, penalties may also take the form of demerit points and revocation of driver’s licence.
For penal proceedings, the limitation period is one year, unless the law sets a different time limit.
In general, the procedure associated with penal offences is quite simple. The offender can simply pay the fine or challenge it in court. In some cases, however, a penal offence can have significant consequences. It may then be preferable to use the services of a lawyer specializing in statutory law.
Cases of competition
In some cases, an act may constitute both a crime and a statutory offence. For example, failure to stop following an accident is both a statutory offence under the Highway Safety Code and an criminal offence under the Criminal Code.
In case of competition, the prosecutor is supposed to give preference to the use of penal law, in order to respect the principle of moderation. In certain circumstances, however, the prosecutor may prosecute for a criminal offence, for example if the offence was committed by a criminal organization that uses physical violence or intimidation or is related to the commission of other criminal offences.
If you are charged, whether criminal or penal, our lawyers have the skills to help you. Do not hesitate to contact us.