Diversion and alternative measures in Ontario criminal courts.
Frequently, our law firm receives many calls and emails from people who are charged with a criminal offence asking “What is diversion?” or “What is alternative measures?” and whether they are eligible. The short answer is “it depends”. However, we hope to shed a bit more light in this article on what diversion is, who is generally eligible, and what are the effects upon a criminal record if they accept it.
Diversion means just that: an individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong. This reparation will take the form of community service, a donation to charity, or a more specific program tailored to the individual’s specific life situation (as is often the case with people suffering from mental health issues). Upon completion of whatever terms the diversion is dependent upon, the charges are “withdrawn” meaning that you remain legally innocent of the charges. Since you are presumed innocent when you are charged until proven guilty, you remain legally innocent when your charges are withdrawn because the allegations were never proven in a Court of law against you.
Who decides whether I am eligible for diversion?
There is only one party who has the power to determine a person’s eligibility for diversion, and that person is the Crown Attorney (or the Office of the Crown Attorney). When a file first comes to the Crown’s office after bring processed by the police department, an initial screening of the file is made by the Crown Attorney. If the Crown Attorney decides that you are eligible for diversion, then the brief will be marked up accordingly and typically that accused person will be advised of that decision on their first day in Court. The factors that the Crown takes into account when assessing a file include, but are not limited to:
- Whether the person has a criminal record or past dealings with police;
- Cooperation with police upon arrest;
- The seriousness of the offence (amount of money lost, alleged harm done, etc.);
- The cost of prosecuting the case in comparison to the seriousness of the offence;
- The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
- The wishes of the alleged victim.
It is also important to know that simply because a file is initially screened as ineligible does not mean that is the final decision. Despite a Crown Attorney’s initial view, they may be persuaded by legal counsel that a person is eligible after all. For this reason, it is wise to retain an experienced criminal lawyer to ensure that all possibilities for diversion are canvassed.
What kind of charges are eligible for diversion?
Technically, any type of charge may be eligible for diversion; however, the most common cases where diversion is routinely offered is theft under, possession of small amounts of marijuana, and solicitation of prostitution. Other offences where diversion is offered, albeit less common, include: mischief offences, assault, fraud, being found in a bawdy house, harder drug possession, and crimes where there is no large amounts of money lost and no serious physical violence. Again, retaining a lawyer could help convince a Crown Attorney to offer diversion when that person may not be initially eligible.
Do I have to admit to anyone what I did?
Generally speaking, when a person is accepted into the diversion program, it is contingent upon that individual accepting responsibility for their wrong. An extensive confession is not required. Typically, the social worker who is interviewing the person for an initial intake will ask questions like:
- Why did you do this?
- Do you understand this is wrong?
- Do you appreciate the costs to society in your actions?
- Do you appreciate the harm you have done to yourself, family, and friends and personal reputation in committing these offences?
- Have you learned your lesson?
If that worker feels that the person has learned their lesson and will not engage in similar acts in the future, that person will be advised what they will have to do (community service, etc.) in order to have their charges withdrawn.
Is what I tell the diversion worker admissible against me at trial later on?
Fortunately, all of the discussions you have with the diversion office for these purposes is confidential and cannot be used against you in Court later on. Section 717(3) of the Criminal Code of Canada clearly states:
No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.
This section is placed here by legislation to facilitate people who are eligible for diversion or “alternative measures” to engage in the process without the fear of reprisal for their admissions later on.
Now that I am eligible for diversion, what happens next?
Once you are eligible, you will return to Court and adjourn your case for as much time as required to complete the terms of diversion. For example, if a person is asked to complete 35 hours of community service, they will likely be adjourned for 3-4 weeks for them to complete it.
Ok, I completed my terms, now what?
When you return to Court after completing your terms of diversion, you or your lawyer will present the proof thereof to the Crown Attorney and Court and if everything is done in accordance with the agreement, your charges with be withdrawn.
Should I retain a lawyer for this?
Retaining a lawyer is always a prudent thing to do no matter how insignificant the charge may be; however, this is always a personal choice and some people choose to represent themselves. Some things to consider is that a lawyer can:
- Provide guidance, confidence, and ease of mind throughout the process;
- Appear on your behalf so that you do not need to miss work or feel embarrassed about being present in Court;
- Negotiate a better settlement with the Crown Attorney;
- Familiarize you with the proceedings and what is expected to happen;
- Follow up with the police department and request that your fingerprints, records, and photographs be destroyed upon the withdrawal of your charges;
- Provide you with the certified Court documentation that proves your charges were withdrawn
You can contact a lawyer immediately with our firm at (416) 999-8389 to discuss your options and whether you may be eligible for diversion for your criminal charges, or use the contact us form here: