Federal Crown Diversion
1992
Diversion is not a clearly defined concept. Broadly speaking, it can include the community taking steps to deal with traditional criminal justice scenarios without the involvement of the police or prosecutorial agency; it can also include situations where the police agency is involved in a matter, but exercises a discretion to deal with a matter other than by way of referral to the prosecutorial agency. Another mode of diversion is pretrial diversion, which involves a decision by the prosecutor’s office to refer a case to an alternate agency or process rather than proceeding by way of a criminal charge. Finally, diversion can include the process whereby matters proceed to charge and adjudication, but the Court invokes nontraditional responses—such as absolute or conditional discharges, restitution orders, suspended sentences, probation, community work service orders or other such unconventional dispositions. Generally, the concept is one of channelling offenders away from traditional Court and correctional processes.
In British Columbia, the Ministry of the Attorney General has developed a very specific policy on diversion (reproduced below). The first four paragraphs of the policy define the nature of the program and the purpose. Essentially, the program is a pretrial mechanism in that the objective is to identify appropriate offenders and situations, and to then arrange for those persons to deal with their responsibility other than by way of proceeding to Court. In situations where it is determined that the diversion option is appropriate prior to the information being sworn, no charge will be laid; in situations where a charge has been sworn, but it is subsequently determined that the case is appropriate for diversion, the Crown will stay the proceedings.
Province of British ColumbiaGoals and purposes
Ministry of Attorney General
Criminal Justice Branch
Crown Counsel Policy Manual: Diversion
"For the purposes of this policy, diversion is defined as a pre-trial procedure whereby a Crown Counsel uses his or her discretion on a case by case basis not to prosecute an alleged offender. Instead, the alleged offender is referred to an individual or agency (with or without the intervention of a probation officer) with the intent of establishing an agreement by which the prospective divertee undertakes to accept, and is given the opportunity to demonstrate, personal responsibility for the alleged offence.
"Participation in a diversion programme is voluntary and, if a diversion agreement is reached, the Crown relinquishes its right to prosecute the divertee for the offence which gave rise to the decision to divert, regardless of whether or not the conditions of the agreement are met.
"The diversion programme emphasizes the importance of providing an alleged offender with the opportunity to act in a responsible manner. The diversion agreement enables the divertee to assume responsibility for his or her behaviour by honouring the negotiated conditions. Those conditions may include making restitution to the victim or society for loss suffered as a result of the offence, undertaking to effect a reconciliation with the victim, voluntarily participating in various counselling programs, or a combination of these.
"It must be emphasized that the purpose of diversion is not retribution or, except in an incidental way, deterrence. Diversion should be viewed as a positive and human alternative which, for some cases, has the potential to provide greater benefit to the offender, the victim and society than would be expected from further processing through the criminal justice system. Diversion programs, as they operate in B.C., are not viewed as part of the criminal justice system, but are administered through the Corrections Branch of the Ministry of Solicitor General."
Guidelines
"1. The Crown must be satisfied that there is sufficient evidence against the accused and, but for a diversion program, the case would have proceeded to trial.
2. The Crown must be of the opinion that to divert the alleged offenders would not endanger the community.
3. The offence must not have been of such a serious nature as to threaten the safety or tolerance of the community.
4. An accused who has a criminal record, has previously been diverted or has received a warning letter, should not be diverted except in extraordinary circumstances. Administrative Crown Counsel should consult with Deputy Regional Crown Counsel before diverting such an accused.
5. Persons alleged to have committed an offence under the drinking driving provisions of the Criminal Code should not be diverted.
6. Only in exceptional circumstances should an accused who commits an assault within the family or any sexual assault be diverted. Cases involving children as victims are subject to special considerations.... If Administrative Crown Counsel believes exceptional circumstances warrant deviation from this rule, Regional or Deputy Regional Crown Counsel must be consulted.
7. The alleged offender should be advised: (a) Of the circumstances of the alleged offence; (b) that he/she has the right to consult counsel of his/her choice; that he/she need not accept the diversion option; (d) that he/she may have access to the Court if he/she wishes to dispute the charge; and (e) that if he/she is convicted of a subsequent offence, the court may be informed of the fact that they had previously participated in a diversion program.
7.[sic] The offender must admit responsibility for the offence.
8. If the prospective divertee appears to be attempting to delay unnecessarily the making of a diversion agreement or, if such an agreement cannot be reached within a reasonable time, the Crown shall proceed to Court with the charge.
9. Conversations between the prospective divertee and Crown Counsel, probation officers or diversion agency personnel, with respect to the offence which gave rise to the offer of diversion shall not be used at trial should a diversion agreement not be concluded.
10. A person will be deemed to have been diverted when a diversion agreement has been finally approved by a Crown Counsel. A divertee shall not be charged with the offence(s) which gave rise to the diversion or to any other offence arising from the same circumstances nor shall proceedings be re-instituted in the event that the divertee fails to honour the terms of the diversion agreement [see R. v. Jones (1978) 40 CCC (2nd) 173 B.C.S.C.].
11. The RCMP has agreed to maintain a record of diversion cases on the Police Information Retrieval System (PIRS). This service will be available throughout the province at those locations where the law enforcement agency uses PIRS. In order to keep the diversion files current it will be imperative that Crown offices advise police agencies of diversion decisions.
12. Diversion records should be used in assessing suitability of a prospective divertee in a subsequent case, as well as by court in determining a suitable sentence should the individual be convicted of a subsequent offence.
13. Special considerations may apply to aboriginal people (see NAT 1:1)."
Presumably, the principal objective of the diversion program is to provide a means of recognizing that, in dealing with relatively minor and non-dangerous criminal conduct by persons without clearly demonstrated propensities to violate the law, more moderate or measured responses can afford adequate sanction without recourse to prosecution and the attendant appearance in Court, registering of conviction and stigma of a criminal record. It recognizes the reality that a criminal prosecution is a very profound experience, and that where appropriate, lesser means should be pursued. A secondary benefit which results from the diversion program is a reduction in the number of cases in the Court system; accordingly, it represents a conservation of a limited resource.
Present applications
British Columbia is unique in having developed the diversion policy set out above. It would appear that most other provinces in Canada have no similar arrangement in place to deal with adult diversion. The situation is different in respect of young persons, in that the Young Offenders Act at section 4 mandates that "alternative measures may be used to deal with young persons alleged to have committed an offence instead of judicial proceedings". The Act sets out a number of criteria dealing with the program of alternative measures. As a result, there are diversion mechanisms in place in each province to provide the "alternative measure" capability. However, there is no uniformity in the design or operation of these various programs, and there is plainly a considerable variation from jurisdiction to jurisdiction.
Insofar as adults are concerned, our enquiries have determined that there are no formal diversion programs in place in any province other than British Columbia:
- Evidently, the issue is under some preliminary consideration in Newfoundland.
- Manitoba has a program of alternate mediation entitled "Anger Management".
- The Ministry of the Attorney General of Ontario advises that "Adult diversion has not been abandoned in Ontario. There are a number of informal diversion projects operating in a number of jurisdictions, and as well, formal diversion projects are under study for Peel and Metro Toronto; finally, an aboriginal justice project is scheduled to commence operation in Metro Toronto in January of 1992."
- We are advised by the Public Prosecutions Branch of the Government of Saskatchewan that there is no concise policy statement developed, but there are contractual arrangements with certain community-based organizations to provide adult mediation/diversion services at various locations in the province. Further specifics were not made known.
- The Province of Alberta has no adult diversion program.
The concept of diversion first arose in the United States; in Canada, it was first broached by the Attorney General of British Columbia in 1973 and received some discussion at the Federal-Provincial level. There followed a number of research projects and papers dealing with the concept. In the mid and late 1970s, a number of experimental projects were undertaken at various locations in Canada. These projects involved different types and models of diversion. As noted above, only British Columbia carried the matter through to the point of developing and instituting a formal program.
Assessment of diversion in British Columbia
It is the submission of this paper that the diversion model which is presently in practice in the Province of British Columbia today is a sound and commendable adjunct to the criminal justice system. The program has taken some considerable time to evolve, and has not emerged without its growing pains. Reference should be made to the experience of an experimental diversion project operated in the City of Kamloops in 1976. That model involved a pretrial type of diversion, something of a primitive ancestor of the present program.
Of particular interest to the development of the diversion program is the situation of Louise Patricia Jones. Jones was an 18 year old woman arrested and charged with shoplifting and possession of a narcotic. She had no previous criminal record. The situation was referred to a probation officer in Kamloops who conducted an interview and determined that the facts of the matter made it appropriate to divert. The probation officer evidently explained the diversion alternative to Jones, and she agreed to participate. The agreement required her to perform a number of conditions, including completing some 40 hours of community work service. In return, each of the prosecutions was to be discontinued. Jones was advised that a failure to comply with the terms of the agreement would lead to the prosecutions being resumed. In fact, she did not fully comply with the terms of the agreement, and one of the prosecutions was resumed. In the subsequent trial, the defence contended that the Crown was abusing the process of the Court and asked that the charge be stayed. The Provincial Court judge acceded to this submission and stayed the proceedings.
The Crown brought an appeal in the Supreme Court of British Columbia; the decision of Mr. Justice Anderson in Regina v. Jones was delivered on March 6, 1978 and is reported at 40 c.c.c. (2d) 173. In his reasons, Mr. Justice Anderson upheld the ruling of the Provincial Court judge. Both of the decisions held that the arrangement whereby the Crown reserved the right to resume the prosecution in the event that the divertee failed to comply with the imposed terms was untenable. The Courts recognized that such an arrangement placed the prospective divertee in a very difficult position and for that reason, the Courts found the arrangement unacceptable. At the same time, the concept received a certain cautious encouragement by Mr. Justice Anderson. (Those interested might wish to consult a paper by Dwight Whitson entitled "A Policy Oriented Legal Analysis of Adult Pretrial Diversion in the Canadian Context", which deals in some detail with the Jones case and the subsequent Court decisions.)
It is obvious that the policy which is established in British Columbia today represents an evolved improvement of the early Kamloops model. In particular, the following facets of the program are noteworthy:
- The policy is in force province-wide.
- The policy attempts to clearly delineate objective criteria to be applied.
- There is a threshold requirement that the Crown must be satisfied that there is a sufficiently strong case that the matter would proceed to trial; it thereby discourages any use of the program as a "middle ground".
- The policy emphasizes the importance of ensuring that the prospective divertee is fully and properly apprised of his or her right to counsel and the right to take the matter to trial.
- It is clearly stated that any discussion in the course of considering the diversion is without prejudice and not to be used in any subsequent proceeding.
- The policy makes perfectly clear that, once the Crown has agreed to diversion, there can be no subsequent resumption of the proceedings in the event that the divertee fails to honour the terms of the agreement.
One aspect of a diversion program which requires care is the concern that divertees recognize that agreement to participate in the diversion program is an admission of responsibility for the offence; it is important that persons do not agree to participate as a means of circumventing the costs and uncertainty of a trial. It must be absolutely clear to prospective divertees that participation is an admission of guilt and, absent a preparedness to admit that guilt, they ought not to proceed to diversion. In this same vein, it is critically important that a diversion candidate be fully apprised of the evidence against him or her; ideally, the candidate would be well served by reviewing the process with the assistance of counsel. The object of these steps is to be as certain as possible that persons who are diverted are fully informed of the ramifications of the matter.
One must be somewhat concerned about other forms of diversion which are less institutionalized. Probably the best example of such an arrangement is the very informal process whereby the police exercise discretion as to whether or not they will pursue a prosecution of an offender. No doubt that discretion can be properly exercised; there is also a real danger that the discretion not to proceed can be used for other ends. The danger that these less formal means of diversion can lead to inequities and abuses is reduced to some extent by the existence of the process of an open and formalized program.
Federal position
We are advised that the official policy of the Department of Justice is that diversion is not an appropriate means of dealing with infractions under Federal legislation. This is enunciated in the letter of Mr. David R. Birchard, Acting Group Head of the Criminal Law Section in Vancouver, in a letter dated April 11, 1991 to Margaret Johnson of the BCCLA. That letter was written in response to an enquiry made of Mr. Kardish, Ad Hoc Federal Crown Counsel in Victoria, who had elected to "divert" a prosecution against Mr. Peter Freeman, charged under the Federal Aeronautics Act with having made a joke about having a bomb at an airport.
The entire situation concerning the Freeman matter is confusing. According to a newspaper account, Kardish indicated that the case met the criteria for diversion; he indicated that there was sufficient evidence for trial, but that diverting Freeman "would not threaten the safety or tolerance of the community". The newspaper article also indicated that Kardish had agreed to divert three other similar charges. The enquiry which was directed to Mr. Kardish was answered by the letter of Mr. Birchard. In Mr. Birchard’s letter, he affirms that there is no diversion option available for infractions under Federal legislation. With respect to the Freeman case, Mr. Birchard states that the case turned on credibility, and the view of Crown Counsel was that there was a credibility gap in the evidence such that it may well have been resolved in favour of Mr. Freeman. In essence, Mr. Birchard takes the position that this was not a diversion, but rather a situation where the Crown simply elected to discontinue the prosecution because of a frailty in its case.
The position of the Department of Justice has also been set forth in a letter dated April 8, 1991 and authored by Ms. Pamela Clarke, Counsel, Criminal Law Branch, Department of Justice in Ottawa. She indicates in her letter that there is a proposed policy on diversion, but the policy is in draft form only and intensive consultation must ensue. She states that she is not able to provide the policy at this time. She does reiterate that the present policy of the Attorney General is not to participate in diversion schemes for adult offenders. She advises that it is the position of the Attorney General of Canada that with the availability of conditional and absolute discharges in appropriate cases, sentencing in drug cases can responsibly be left to the Court.
We have also received a copy of a letter dated May 28, 1990 and apparently authored by Kim Campbell, Minister of Justice and Attorney General of Canada. That letter advises that diversion is not available as an alternative to criminal prosecution because there is no provision in the Criminal Code. She does make reference to the alternative measures contemplated by section 4 of the Young Offenders Act and suggests that a Federal policy will be compatible with the criteria established by the province in which it is to be implemented. However, insofar as adult offenders are concerned, she reaffirms the position that a "discharge" would normally be available where the offender has no prior record.
It is the position of this paper that a diversion program would be an appropriate and beneficial feature in the Federal prosecution scheme, and that every effort should be made to urge the appropriate authorities to design and implement such a program forthwith. A number of Federal offences seem particularly well-suited to the concept, most particularly the possession of narcotics. Indeed, one facet of conventional minor criminal situations which can complicate diversion is the attitude of the victim of the incident; often victims are reluctant to see the perpetrator of the offence permitted to "get away with" the offence. In the typical narcotics situation, there will be no such factor present.
Evidently, it is the view of the Federal Government that an acceptable alternative to diversion is to proceed to prosecution and then avail the convicted party of the discharge provisions of the Criminal Code. In our submission, this is not a valid analysis. The entire concept of what a discharge entails is something less than clear. At a minimum, we know that an individual who has been charged and been the subject of a discharge will, in all probability, have had their fingerprints taken and filed with the Fingerprint Section of the Royal Canadian Mounted Police in Ottawa. We are also acutely aware that certain police information systems maintain records of individuals even though discharges were granted. Finally, we know that a number of application forms for employment and other important matters specifically ask the party whether they have been convicted of an offence and or have received a discharge. In summary, to somehow suggest that having been prosecuted and having subsequently received a discharge is the equivalent of having a charge diverted prior to prosecution is simply wrong.
There is also a concern that various Courts deal with matters in various ways. A straightforward charge of possession of cannabis by an individual with no prior criminal record might well result in a discharge in one Court and quite another disposition in another Court. These inequalities are not desirable, and if uniformly applied diversion procedure could be implemented to alleviate such discrepancies, the result would be beneficial.
One point raised in the response of the Federal Department of Justice appears to be that diversion will not be made available because there is no provision in the Criminal Code. In the submission of this paper, it simply is not necessary that such a provision be found in the Criminal Code. Undoubtedly, a diversion program could be constituted and implemented without the Criminal Code authorizing the measure.
This issue has been the subject of consideration by the Canadian Bar Association. In Vancouver, the Criminal Justice Subsection passed a resolution by unanimous vote on May 15, 1991. The thrust of the resolution was that the Canadian Bar Association should recommend to the Federal Government the adoption of a system of diversion in appropriate circumstances. That resolution was then considered by the Provincial Counsel of the British Columbia Branch at its meeting on July 21, 1992, and was passed. The resolution was placed before the National Counsel of the Canadian Bar Association at their winter meeting in Whistler in February 1992 and was approved as follows:
Resolution of the Vancouver Criminal Justice Subsection, Canadian Bar Association
"WHEREAS in Provincial prosecutions a system of diversion exists to allow alleged first offenders to dispose of their case without the need for appearances in Court and a formal trial, in appropriate circumstances;
AND WHEREAS this diversion program has spared many accused persons from appearing in Court, and the public interest has not suffered [while] many thousands of accused have benefitted from it;
AND WHEREAS there is no parallel system in place for Federal prosecutions;
BE IT RESOLVED that the Canadian Bar Association recommend that the Federal Government adopt a system similar to that in place for the Provincial Government for the diversion of accused persons from the Court system in appropriate circumstances, without the need for Court appearance or trial, in appropriate circumstances."We are advised that the resolution is now in the hands of Terry Wade at the Canadian Bar Association national office, and that the CBA intends to do what it can to bring about the institution of an appropriate program.
While there can be no doubt that the task of designing and implementing a diversion program would require time, effort and monetary resources, it is the earnest submission of the British Columbia Civil Liberties Association that the project ought to proceed as quickly as possible. As submitted above, in the final analysis, the program adds a dimension of fairness and social utility to the criminal justice system without detracting from its goals or increasing its cost. There is every good reason to move forward, and we urge the federal government to do so now.