3.8 Alternative Measures

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Introduction
  • 1.1. Authorization by Attorney General of Canada
  • 1.2. Section 717 of the Criminal Code
• 2. Statement of Alternative Measures Policy for Adults and Organizations
  • 2.1. General principles
  • 2.2. Statutory preconditions applicable to alternative measures
• 3. Guidelines for Application of the Alternative Measures Policy
  • 3.1. The circumstances of the offender
  • 3.2. The nature of the offence
  • 3.3. Circumstances that can preclude alternative measures
• 4. Preferred Procedure and Successful Completion of Alternative Measures
• 5. Failure to Complete Alternative Measures
• 6. Regulatory Prosecutions

1. Introduction

Not every person alleged to have committed an offence need be prosecuted. Alternative measures,^{Footnote 1} which were introduced in the Criminal Code in 1996 as part of significant reforms to the criminal law,^{Footnote 2} enable adults and organizations to take responsibility for offences in certain circumstances without going through judicial proceedings.

The fundamental principle underlying the use of alternative measures is that criminal proceedings should be used with restraint, and only when less intrusive measures have failed or would be inappropriate.^{Footnote 3} In some cases, because of the nature and circumstances of the offence and the offender, the public interest may be better served by a resolution outside of the traditional criminal process.

1.1. Authorization by Attorney General of Canada

Pursuant to s. 717(1)(a) of the Criminal Code, the Attorney General of Canada hereby authorizes the use by federal prosecutors of alternative measures consistent with the principles and criteria in this directive.^{Footnote 4}

For the purposes of s. 717(1)(a) of the Criminal Code, the range of acceptable measures that can form part of an alternative measures program authorized by the Attorney General of Canada can include community service, restitution or compensation in cash or services, mediation, referrals to specialized programs for counselling, treatment or education, (for example, life skills, drug or alcohol treatment, anger management), referrals to community, aboriginal or youth justice committees, victim-offender reconciliation programs and similar measures aimed at restorative justice, a letter of apology or essay, and other reasonable alternatives or measures that are consistent with the objectives and criteria in this directive. For greater certainty, a federal prosecutor can also refer an offender to an appropriate alternative measure that is part of a program authorized by a province or territory in accordance with s. 717(1)(a). There are also alternative measures expressly contained in some federal statutes, as discussed at note 7 and at section 6 of this directive on regulatory prosecutions.

1.2. Section 717 of the Criminal Code

Section 717 of the Criminal Code recognizes that where it is not inconsistent with the protection of society and certain conditions are met,^{Footnote 5} Crown counsel can exercise discretion to deal with persons who are alleged to have committed offences through the use of measures that are alternatives to judicial proceedings and conventional prosecutions. Addressing an offender’s conduct through measures outside of the traditional court process is commonly known as “diversion”. As noted above at section 1.1, a program of alternative measures can consist of a range of acceptable measures that can vary among communities.

Section 717 of the Criminal Code applies to all federal offences by operation of s. 34(2) of the Interpretation Act,^{Footnote 6} unless the federal statute expressly excludes it. In fact, some federal statutes have their own express and specific alternative measures regimes, as discussed below at section 6 of this directive.^{Footnote 7}

2. Statement of Alternative Measures Policy for Adults and Organizations

2.1. General principles

Crown counsel should adopt a principled but flexible approach in determining whether alternative measures are appropriate in a given case. Alternative measures will generally be most suitable for offenders with no record, who have committed less serious offences and are unlikely to reoffend.^{Footnote 8}

The purpose of alternative measures is to promote a sense of responsibility in the offender and an acknowledgment of the harm done, and to satisfy the important objectives of public safety, deterrence, denunciation, rehabilitation, and reparation to victims and the community, without going through the formal court process. Crown counsel should consider alternative measures where the successful completion of the alternative measure can achieve the objectives of the prosecution.

Participation by an accused in alternative measures is voluntary and requires the accused’s consent.^{Footnote 9} If the offender complies with the conditions of the alternative measure, the Crown can exercise its discretion not to prosecute the offender for the offence.

The use of alternative measures can occur before or after a charge is laid.^{Footnote 10} This directive generally applies after a charge has been laid and the file has been forwarded to Crown counsel, except in regions where pre-charge screening takes place, where it will apply both pre-charge and post-charge.

2.2. Statutory preconditions applicable to alternative measures

When Crown counsel is considering exercising the discretion to use an alternative measure, Crown counsel must be satisfied that the following statutory pre-conditions have been satisfied:

• the measures are part of an authorized alternative measures program (s. 717(1)(a) of the Criminal Code);^{Footnote 11}
• the particular alternative measure is considered appropriate, and consultation has been undertaken, where necessary, with victims, the enforcement agency or investigative body^{Footnote 12} or other interested parties, and an alternative measure is in the interests of society, the offender and the victim (s. 717(1)(b)) of the Criminal Code);
• the offender is willing to acknowledge responsibility for the alleged offence (s. 717(1)(e) of the Criminal Code);
• there is sufficient evidence to proceed with the prosecution, and the prosecution is not barred at law (ss. 717(1)(f) and (g) of the Criminal Code); and
• the offender has been advised that he or she does not have to consent to an alternative measures process and has, before consenting to participate, been advised of the right to be represented by counsel (ss. 717(1)(c) and (d) of the Criminal Code).

Where Crown counsel is considering alternative measures, and the federal act does not contain its own alternative measures regime (for example, the Species at Risk Act,^{Footnote 13} the Canadian Environmental Protection Act, 1999^{Footnote 14} and the Youth Criminal Justice Act,^{Footnote 15} all have specific regimes), Crown counsel must be satisfied that the above conditions in s. 717 of the Criminal Code have been met.

3. Guidelines for Application of the Alternative Measures Policy

3.1. The circumstances of the offender

Crown counsel should consider the following factors in assessing an offender's suitability for alternative measures:

• whether the offender has previously committed an offence (including convictions, discharges or diversions) and if so, the date and nature of the violations;
• whether the enforcement agency or investigative body has used compliance measures, pre-charge diversion, or alternatives to charging against the offender in the past for similar or related conduct;
• the offender's remorse (including for example, whether the offender has agreed to fairly compensate any victim(s));
• whether the offender poses a risk to the community;
• whether the offender has undertaken rehabilitative measures to prevent a recurrence of the offence; and
• whether the offender is facing other charges.

3.2. The nature of the offence

As indicated above, this directive is directed at less serious offences. The following factors are relevant in determining the seriousness of an offence:

• whether the matter would proceed summarily;
• whether a minimum punishment is prescribed;
• whether the offence usually results in a sentence of imprisonment;
• whether a conditional sentence is available;
• the impact on the victim(s), including the potential or actual harm to the victims(s) or to society in general;
• the views of the enforcement agency or the investigative body;
• relevant aggravating factors set out in s. 718.2, and for organizations in s. 718.21 of the Criminal Code, as well as similar factors in other federal statutes.^{Footnote 16}

Crown counsel must also ascertain whether the offence is the subject of legislation, directives or guidelines that could affect the decision to address the conduct through an alternative measure. See for example the PPSC Deskbook guidelines “5.5 Domestic Violence”, “5.7 Impaired Driving Cases: Notice to Seek Greater Punishment”, “6.3 Statutory Restrictions on the use of Conditional Sentences”, “6.2 Mandatory Minimum Penalties for Particular Drug Offences under the Controlled Drugs and Substances Act”^{Footnote 17} and “6.4 Mandatory Minimum Penalties under the Criminal Code” and also the PPSC Deskbook directive “5.6 Victims of Crime”.

3.3. Circumstances that can preclude alternative measures

The presence of any of the following circumstances will usually preclude alternative measures:

• the offence involved the use of, or threatened use of, violence reasonably likely to result in harm that is more than merely transient or trifling in nature;
• a weapon was used or threatened to be used in the commission of the offence;^{Footnote 18}
• the offence is a sexual offence;
• the offence had a serious impact upon the victim or victims (physical, psychological or financial);
• the conduct demonstrated sophisticated planning (for example, the offence was part of an ongoing criminal enterprise);
• a person trafficked, or possessed for the purpose of trafficking, Schedule I drugs such as cocaine, heroin, ecstasy or methamphetamine.
• a person trafficked in a controlled substance or possessed the substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any public place usually frequented by persons under the age of 18 years;
• a person trafficked in a controlled substance, or possessed the substance for the purpose of trafficking, to a person under the age of 18 years;
• a person used a person under the age of 18 years or involved such a person in committing a drug offence;^{Footnote 19}
• the degree to which the motivation for committing a drug offence was profit; or
• serious harm resulted or could potentially have resulted to human health, safety or security, the environment, a natural resource, a regulated industry, or to the public confidence.

After considering the circumstances above, if Crown counsel nevertheless concludes that exceptional circumstances exist that render the use of alternative measures in the public interest in a given case, or considers the case borderline, Crown counsel must consult the Chief Federal Prosecutor, or his or her designate, before making a decision.

4. Preferred Procedure and Successful Completion of Alternative Measures

Crown counsel are encouraged to give early consideration to the appropriateness of alternative measures, in addition to responding to any overtures from defence counsel.

When Crown counsel has decided to use an alternative measure, court dates should be set for follow-up on the offender’s progress and ultimate completion of the measure. The charges should be withdrawn following the completion of the alternative measure to the satisfaction of the Crown. Crown counsel should encourage the court to endorse the information to indicate that charges were withdrawn for alternative measures. The Crown file, including the electronic file, should be documented accordingly. If charges were not laid before the alternative measure was used, a prosecution should proceed if the alternative measure was not completed to the satisfaction of the Crown.

5. Failure to Complete Alternative Measures

If the offender fails to complete the alternative measure, criminal proceedings should ordinarily be continued. However, before doing so, Crown counsel should determine why the measure was not completed and determine whether it could be completed. Crown counsel should assess the appropriateness of proceeding with a prosecution in light of those facts, as exceptional circumstances may exist that would make proceeding against the offender unfair.

6. Regulatory Prosecutions

The availability of alternative measures is not restricted to offences under the Criminal Code or the Controlled Drugs and Substances Act. As previously noted, other federal statutes, such as the Canadian Environmental Protection Act, 1999 (CEPA) and the Species at Risk Act, contain express provisions for the use of alternative measures.^{Footnote 20} In addition, in cases where the regulatory statute does not expressly provide for alternative measures, s. 717 of the Criminal Code applies by virtue of the Interpretation Act, which provides for general application of the Criminal Code provisions to other federal statutes unless the statute provides otherwise.^{Footnote 21} In these latter circumstances, alternative measures can be used in accordance with s. 717 of the Criminal Code and this directive.

In highly regulated areas, including those related to human health and safety, food safety, occupational health and safety, the environment, and sustainable management of natural resources, Crown counsel must consult with the relevant agency to ensure that the agency’s goals and relevant compliance policies are considered.