Diversion in Criminal Cases

May 30, 2010

A criminal record can have a serious impact on your future. The effects of a criminal record can include restrictions on your travel ability and future employment. If you are not a Canadian citizen, you may have to wait several years before being allowed to apply for citizenship or you may be deported.

If you are charged with a criminal offence and have been offered diversion, it is generally in your best interest to enrol in the program. Diversion essentially means you are being diverted out of the criminal justice system. This is because the Crown is agreeing to withdraw all charges against you after you complete the diversion program. This voluntary program is also referred to as direct accountability. The program is designed to enable first time non-serious offenders to avoid the negative impacts of criminal charges and a criminal record. Diversion allows offenders to avoid the stressful prosecution process and affords better outcomes than those possible in the criminal justice system (except an outright acquittal). Diversion is also beneficial to the state as it relieves the heavy burden placed on the courts, police and probation officers.

The diversion program is not available to everyone; the Crown must offer it to those offenders who are eligible. The only person with the authority to determine who is eligible for diversion is the Crown Attorney (the Office of the Crown Attorney).  When a criminal charge is laid it is vetted by the Crown Attorney’s office. An Assistant Crown Attorney conducts an initial screening to determine diversion eligibility.  The factors the Crown will consider in assessing eligibility are;

  • 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 (if there is one).

If you are eligible for diversion, then you will be notified by the Crown at or before your first court appearance. It is important to note that an initial screening of ineligibility can be reconsidered. The Crown may be persuaded by counsel to change their unfavourable position. If this is your first offence and you have been advised that you are ineligible for diversion you should contact legal counsel as soon as possible to ensure that all possibilities for diversion are considered.

Diversion programs are dependent on the individual’s willingness to make amends and accept responsibility for their actions. The offender is required to admit responsibility generally for their role in the alleged offence. It is important to remember that upon completion of the program all charges will be withdrawn. Therefore, your admission to the offence will not impact your criminal record. Also, all conversations you have with the diversion officer are confidential; they cannot be used against you later. Section 717(3) of the Criminal Code of Canada 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 proceeding.

Not all charges are eligible for diversion the most common offences to which it is offered are possession of marijuana (small amounts), communication for the purposes of prostitution and theft under $5000. Generally, more serious charges, such as fraud, will not be eligible for diversion.

The program requirements will differ depending on the individual and the charges they are facing. They can range from counseling courses, charitable donations, community service hours and restitution. Upon completion of the program the Crown will withdraw the charges. This means the offender will not be at risk of incurring a criminal record and its dire consequences. If you have been denied diversion it is important to contact counsel to ensure you minimize the risk of a criminal record.

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