3.8 Alternative Measures

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

June 3, 2024

Table of Contents

1. Introduction

The fundamental principle underlying the use of alternative measuresFootnote 1 in s. 717 of the Criminal Code is that criminal proceedings should be used with restraint. This means that not everyone who is alleged to have committed an offence should be prosecuted. In appropriate cases, the public interest may be best served by resolution through alternative measures. Alternative measures provide an accused with an opportunity to have charges dealt with outside of the criminal process, if they accept personal responsibility and agree to make amends. This allows Crown counsel to take into account both the nature and circumstances of the offence, as well as the accused’s personal circumstances.

Section 717 of the Criminal Code applies to all federal offences unless the federal statute creating the offence expressly provides otherwise.Footnote 2 Crown counsel must apprise themselves of the federal statutes that have their own alternative measures framework.Footnote 3

Crown counsel must also be diligent in all decision-making activities to recognize existing personal conscious and unconscious biases, institutional biases, and stereotypes. Both becoming aware of these biases, and taking active steps to set them aside, are necessary to ensure that the decision whether to offer alternative measures does not perpetuate any form of systemic discrimination or racism.

2. Authorization of the Director of Public Prosecutions

Pursuant to section 717(1)(a) of the Criminal Code, alternative measures may only be used if it is part of a program of alternative measures authorized by the Attorney General or his lawful deputy, the Director of Public Prosecutions (DPP).Footnote 4

The DPP authorizes Crown counsel to use any measures that are consistent with the principles and criteria contained in this Guideline.

Alternative measures do not need to be part of a formal or separate program.

The DPP authorizes the following alternative measures:

Crown counsel can also refer an accused to an appropriate alternative measure that is part of a program authorized by a province or territory in accordance with s. 717(1)(a) of the Criminal Code.Footnote 5

3. Applicable Principles and Criteria

3.1 General principles

Crown counsel can consider alternative measures before or after charges are laid, and only if the decision to prosecute test is met.Footnote 6 If the test is not met, Crown counsel must withdraw or stay the charges. For more on the decision to prosecute test, see Guideline 2.3, “Decision to Prosecute.”

Section 717(1) of the Criminal Code sets out when alternative measures may be used. Section 717(2) specifies that alternative measures cannot be used if a person denies participation or involvement in the offence or expresses a wish to have the charge dealt with by the court.

Other federal legislation may set out specific requirements concerning alternative measures. For example, the Controlled Drugs and Substances Act (CDSA)Footnote 7 creates an obligation on Crown counsel to consider alternative measures in prosecutions for possession of drugs for personal use. Section 10.3 of the CDSA states that prosecutions for possession of a controlled substance are only appropriate in light of the principles set out in s. 10.1. Crown counsel must also follow the direction in Guideline 5.13 “Prosecution of Possession of Controlled Substances Contrary to s. 4(1) of the Controlled Drugs and Substances Act”. This Guideline directs that alternatives to prosecution must be considered in all cases where possession for personal use is charged, unless they are inadequate to address the concerns related to the accused’s conduct.

Crown counsel should consider the use of alternative measures in cases where the following objectives are met:

Crown counsel must assess whether the measures are appropriate in the circumstances. This assessment must take into account the legislative criteria, the nature and seriousness of the offence, and the background and systemic factors of the accused. Crown counsel must adopt a principled, consistent, fair, and flexible approach when making the initial assessment and implementing the alternative measures.

Crown counsel must also become familiar with the alternative measures that are available in the community where the prosecution is being conducted.

3.2 Legislative criteria

Crown counsel who are considering an alternative measure must be satisfied that the following legislative preconditions are met:

3.3 Background Systemic Factors of the Accused

Crown counsel must determine whether the measures are appropriate for the particular circumstances of the accused, taking into account the following factors:

3.4 The Nature of the Offence

As set out in the introduction of this Guideline, the law does not limit the types of offences that can be dealt with by alternative measures. Therefore, all offences are eligible for alternative measures.

At the same time, it is important to note that alternative measures are only appropriate if they are consistent with the protection of society and maintaining public confidence in the administration of justice. It is also important to recognize that alternative measures can enhance public safety and public confidence by addressing the underlying causes of the crime.

In assessing whether alternative measures are appropriate, Crown counsel must consider the following non-exhaustive factors that may be relevant in a particular case:

3.4.1 Consultation

Depending on the unique and particular circumstances of a case, Crown counsel must consider consultation with the following individuals before making an assessment about alternative measures:

Chief Federal Prosecutor (CFP) or Deputy CFP
CFPs or DCFPs must approve the offering of alternative measures in cases where the offence is serious. For example, a serious crime is one that involves significant amounts of a harmful controlled substance, public safety issues, or violence. Crown counsel must determine whether an offence is serious based on the unique facts of each case.
The Canadian Victims Bill of Rights (CVBR)Footnote 9 gives victims the right to information upon request. Absent exceptional circumstances, Crown counsel should seek input from victims (where there is one)Footnote 10 and keep them informed about their intention to use alternative measures.
The community
Where reasonable and appropriate, Crown counsel may consult community leaders to determine whether an alternative measure is appropriate based on the interests of society and of the victim.
Law enforcement agencies
Crown counsel should consult the organization concerned to consider the organization’s objectives and relevant compliance policies which may include, for example, the protection of human health and the environment and sustainable management of natural resources.
Defence counsel
Counsel for the accused may be in possession of relevant information that they are willing to provide in order for the Crown to make an assessment about alternative measures. They may also provide suggestions about the type of alternative measures that might be appropriate in the circumstances.
Consultation with other Crown counsel helps to ensure different perspectives are considered.

4. Implementation of Alternative Measures

The completion of alternative measures may lead to the charges being withdrawn or stayed, or to a reduction of the sentence. Crown counsel should ask the court to note on the information that the charges have been withdrawn or stayed as a result of alternative measures.

Crown counsel must decide whether it is appropriate to request that the accused report back to the court in order for the charge to be withdrawn or stayed. If Crown counsel determines that reporting back is not required, the charge should be withdrawn or stayed and the Crown will not be required to monitor the completion of the alternative measures.

Crown counsel should ensure that the release conditions of an accused who is participating in diversion are amended as necessary to allow for the full use of the process.

In cases where the accused does not complete the alternative measures within the prescribed time and is charged with a new offence, Crown counsel may consider reinstituting the charges that were dealt with by alternative measures. Crown counsel must consider the public interest before deciding to reinstitute charges and pay particular attention to any special circumstances that would make the prosecution unfair.

In all circumstances, Crown counsel must keep a detailed written record, and must also update the electronic file.

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