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

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:

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, 1999Footnote 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:

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:

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 ActFootnote 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:

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.

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