What is diversion?
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What is diversion?
Diversion refers to programs used as an alternative to prosecuting a criminal charge in the usual way. Instead of dealing with criminal charges by pleading guilty or going to trial, the accused agrees to be referred to a diversion program by a crown prosecutor. This often requires the accused’s criminal defence lawyer to persuade the crown prosecutor to make the referral. If the accused successfully completes the program requirements, then the crown prosecutor will drop the charge against them. Some restorative justice diversion programs happen at the sentencing stage; once the offender has already been found guilty (through a conviction at trial or a guilty plea).
Diversion programs commonly seen in Calgary include:
- The alternative measures program (AMP): A diversion program available at the provincial and federal level which results in withdrawn charges after completion of certain requirements over a 90-day period. AMP is not available for charges of offenders who have been convicted or referred to AMP less than two years prior, and is typically not available for especially serious or violent charges. AMP requires an admission of some responsibility for what happened, but not an admission of criminal guilt. Examples of AMP requirements include attending counselling, doing community service, paying for the victim’s property that was damaged or lost (restitution), making a charitable donation, or writing an apology letter or essay.
- Mental health diversion (MHD): A diversion program through Alberta Justice and Alberta Health Services which results in withdrawn charges after completion. When MHD staff receive referrals from crown prosecutors, they conduct an initial assessment of the accused to make sure that they are a good fit MHD, generally meaning that the accused has shown a motivation to change their life for the better and follow the program, and that the program should help them. In Calgary, there is a wait of about one to two months to be assessed. Once accepted into MHD, the accused works with their caseworker to develop and execute a program addressing their mental health challenges which contributed to the alleged offence. This programming usually consists of counselling or therapy. Completing MHD usually takes about four months.
- Extra-judicial sanctions (EJS): A diversion program that is like alternative measures but for youth matters only. There is also extra-judicial measures (EJM), which is like EJS except that a police officer makes the referral before the charge is laid, rather than a crown prosecutor doing so after the charge is laid.
- Restorative justice programs: Used in some Indigenous communities and specialized courts, restorative justice programs provide a non-adversarial community-based approach to criminal justice focused on healing the offender and victim, and their families, by focusing on the root cause of the crime. Restorative justice is guided by the principles of voluntary participation, respect, acknowledged harm, accountability, inclusiveness, shared responsibility, and balancing the needs of all involved and affected. Restorative justice looks different for different communities, but common models include family group (or community) conferencing, circles (sentencing circles, healing circles, or peace circles), and victim-offender mediation. Restorative Justice is used in many parts of Alberta, including Calgary Indigenous Court (CIC). Alberta is considering legislation to support a province-wide restorative justice program.
Peace bonds and specialized courts play roles that are similar to diversion programs.
Peace bonds are like diversion programs because they allow an accused to resolve their matter without a guilty plea or trial, and because they come with conditions. A peace bond is when an accused person agrees to put up some amount of money (often between $1000 and $3000) and follow certain court-ordered conditions (usually for 12 months) in exchange for the crown prosecutor dropping the original criminal charge. If they breach any of the conditions, they will have to pay the money they put up and may be charged with a new criminal offence. I have separate FAQs on peace bonds.
Specialized courts are comparable to diversion programs because they provide a more individualized, rehabilitation-based approach to dealing with criminal charges. Diversion programs and peace bonds are commonly utilized in specialized courts. Specialized courts in Alberta include mental health courts, domestic abuse/inter-partner violence courts, and Indigenous courts.
In many cases, diversion is the best way to deal with a criminal charge. It may allow the accused to deal with their matter relatively quickly, avoid a formal criminal record, and get the help they need. I have separate FAQs on options for dealing with criminal charges and alternatives to trial.