Criminal convictions have wide-ranging consequences – they can limit your ability to travel, make you ineligible for some forms of employment, prevent you from joining community service organizations, and otherwise carry with them the general stigma of “being a criminal”.  However, in Ontario there are several routes through the criminal justice system that do not result in a criminal conviction for an accused person – besides an acquittal at trial, of course. These routes are often preferable for an accused person not only because they can avoid a criminal conviction but because they may conclude sooner than the time it would take to go trial, they are frequently less costly, and they are often designed to address some of the social and personal circumstances that often underlie the accused’s allegedly criminal actions. The Criminal Code generally classifies these routes as “alternative measures” to the usual procedure of trial or resolution.

The availability of alternative measures is determined by the prosecuting Crown Attorney – they are not imposed by a judge or a justice of the peace (though they will be affirmed by either after their successful conclusion). Crown Attorneys have a great deal of discretion in determining whether to support alternative measures for a given charge, however, they are typically applied to minor charges and/or first offences.

In all programs, with the exception of the PARS program below, the result is a withdrawal of the diverted charges. If the programs are not completed successfully, the accused person risks having their charges continue through the normal criminal court procedure. An accused person is also not obligated to accept alternative measures – they may still choose to take their matter to trial.

Furthermore, in all cases (but excepting extrajudicial measures for young persons, outlined below), accepting alternative measures instead of going through the normal court procedure requires the accused person to “accept responsibility” for the act or omission that forms the substance of the charge against them.  It’s important to note, however, that s. 717(2) of the Criminal Code and s. 10(4) of the Youth Criminal Justice Act make any admission, confession, or statement of responsibility given through the course of the alternative measures inadmissible as evidence against the accused. If, for one reason or another, the criminal proceedings against an accused are reinstated after they have taken responsibility in an alternative measures program, their statement of responsibility cannot be used against them as an admission of the offence. This ensures that the accused is not worse off in any possible future trial for originally accepting an alternative measures program.

So what are alternative measures exactly? The particular details of each of the following programs will vary across courts, however, the basics remain the same.

Direct Accountability

Also known as Diversion, Direct Accountability programs typically involve any combination of restitution, community service, counseling, workshops, or letters of apology.  Direct Accountability programs are often run and monitored by social service organizations. The particular activities demanded by a Direct Accountability procedure will be determined by the Crown Attorney and the social service workers who manage the program. Once the accused has completed the assigned tasks to the satisfaction of the Crown Attorney and/or the program manager their charges will be withdrawn.

Aboriginal Diversion

Similar to Direct Accountability, Aboriginal Diversion programs in Toronto are run by Aboriginal Legal Services and consist of programming and community supports that cater to Aboriginal/indigenous accused.  These programs and supports employ Aboriginal/indigenous histories, worldviews, and practices in pursuit of the restorative goals of the Aboriginal Diversion program.

Mental Health Diversion

Through this program, accused persons with diagnosed or undiagnosed mental health struggles are connected with mental health services and supports to help them treat and/or manage these challenges. This may involve getting a mental health assessment from a psychiatrist, a medical and/or therapeutic treatment plan, being connected with other social supports (such as housing assistance), and regular meetings with a mental health worker who will monitor the process and the accused person’s mental well-being. Typically, mental health diversion is only available if there are reasons to believe that the charges an accused person is facing are connected to their mental health struggles.

Young Persons – Extrajudicial Measures/Sanctions

The Youth Criminal Justice Act is clear, in s. 4(c), that “extrajudicial measures are presumed to be adequate to hold a young person accountable for his or her offending behaviour if the young person has committed a non-violent offence and has not been found guilty of an offence” – and that they may also be appropriate even if the accused young person has previously participated in extrajudicial measures or has previously been found guilty of an offence. Extrajudicial sanctions, meanwhile, are also available for more serious offences.

The difference between extrajudicial measures and sanctions has to do both with the severity of the alleged crime and the formality of the diversionary process. Measures, applicable to minor non-violent offences, are less formal and may not require participation in any programming. The Youth Criminal Justice Act also does not require a statement of responsibility for the young person’s actions for extrajudicial measures. Sanctions, on the other hand, are applicable to more serious offences – or to a young person who has previously made use of extrajudicial measures or has a youth record – and may involve requirements similar to adult diversion programming, like counseling, educational programs, restitution, letters of apology, or community service.

Partner Assault Response Program (PARS)

This program is specifically for persons accused of domestic violence-related offences, such as domestic assault or uttering threats. The program typically consists of a 12-week course designed to teach the participants better anger management, communication, and relationship skills. However, unlike the programs above, it does not result in a simple withdrawal of the charges upon completion of the course. Rather, depending on the severity of the offence, the PARS program can result in one of two possibilities for the accused person:

• For more minor offences, after completion of the course, the accused person will be asked to enter into a peace bond. This does not result in a finding of guilt or a criminal conviction.
• For more serious offences, prior to completion of the course, the accused person will be asked to plead guilty to the offence and the Crown Attorney will request a conditional discharge as the sentence. The conditional discharge will require the accused person to complete the PARS course and to abide by other conditions imposed by the court for a period of time. A conditional discharge is not a conviction but it is also not a withdrawal. Its effects are complicated and you should speak to your lawyer about what it entails.

For many accused, the above programs are welcome and beneficial alternatives to the formal criminal court process. However, they may not be right for everyone – particularly if you cannot honestly take responsibility for the alleged offence. If you are offered diversion, you are entitled to seek legal advice about the offer and whether it is right for you before accepting. Consulting with a lawyer about your options is always a good idea. Even if you are not immediately offered a diversion program like those above, a lawyer may be able to persuade the Crown Attorney that your situation warrants diversion.

If you are wondering about your charges and whether diversion is a possibility or a good idea, please contact us online or feel free to give us a call at (416) 975-1700.