What is the alternative measures program?
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Being charged with a criminal offence does not mean that there is only two ways that the matter might go: a trial or a guilty plea. Sometimes a case may be referred to the Alternative Measures Program.
What is the alternative measures program?
Section 717 of the Criminal Code allows prosecution services to refer matters to a diversion program set up in the Province of Alberta, to allow an accused person to be “diverted” from the criminal justice system.
That section of the Criminal Code states the following:
717 (1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:
- the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General’s delegate or authorized by a person, or a person within a class of persons, designated by the lieutenant governor in council1 of a province;
- the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim;
- the person, having been informed of the alternative measures, fully and freely consents to participate therein;
- the person has, before consenting to participate in the alternative measures, been advised of the right to be represented by counsel;
- the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;
- there is, in the opinion of the Attorney General or the Attorney General’s agent, sufficient evidence to proceed with the prosecution of the offence; and
- the prosecution of the offence is not in any way barred at law.
Am I eligible for the alternative measures program?
The program is available for offences that the prosecutor’s office deems appropriate for referrals. The prosecutor will look at the type of offence, whether the accused person has a criminal record, and whether or not the circumstances of the offence would permit a referral.
Not everyone will be eligible for the Alternative Measures Program. Generally, in Alberta, first time adult offenders are eligible for the program unless there is sufficient reason why program participation is inappropriate. Second time adult offenders are also eligible if at least two years has elapsed since a previous finding of guilt or participation in the program, unless there is sufficient reason why program participation is inappropriate.
The Alberta prosecutor’s office considers the following offences as not eligible for a referral to the Alternative Measures Program, unless there are exceptional circumstances:
- Offences resulting in the death of an individual;
- Offences involving the use of violence or the threatened use of violence reasonably likely to result in harm that is more than merely transient or trifling in nature;
- Offences involving the use, or threatened use, of a weapon;
- Offences affecting the sexual integrity of a victim;
- Offences resulting in a serious impact upon the victim (physical, psychological, or financial);
- Offences involving violence against a victim under 18 years of age committed by a person in trust or authority towards that victim;
- Offences involving the use of violence or the threatened use of violence against an intimate partner;
- Offences involving the infliction of pain, suffering, or injury to an animal;
- Offences involving vulnerable victims (for example, children, the elderly, etc.);
- Offences demonstrating sophisticated planning (for example, the offence was part of an ongoing criminal enterprise);
- Driving offences under the Criminal Code;
- Offences under the Traffic Safety Act;
- Offences that are punishable by a mandatory minimum sentence of imprisonment;
- Offences involving a corporate body as a defendant;
- Offences of Obstructing Justice, Public Mischief, Perjury, and offences relating to Affidavits under section 138; and
- Drug offences involving trafficking in a controlled substance.
What are exceptional circumstances?
A prosecutor may seek the advice of their superiors in consideration of whether an offender will be eligible for the Alternative Measures Program. A supervisor may approve entry into the program for otherwise ineligible offenders or offences where exceptional circumstances exist. Exceptional circumstances approval will only be granted where the use of diversion is not inconsistent with the protection of society. In assessing whether exceptional circumstances exist, the prosecutor will consider:
- Any mental illness of the offender;
- Any disability of the offender; and
- The degree of harm to any victim.
In exceptional circumstances, offenders may be eligible for participation in the program if they are a third time offender or there has been less than two years since their last involvement or conviction. In those cases the prosecutor will consider the nature of the offender’s previous involvement with the criminal justice system, including:
- Prior interventions that have been unsuccessful;
- Recent participation in another diversion program; or
- Where they have recently been convicted of similar offences.
Are there special considerations for indigenous offenders?
Prosecutors are asked to pay particular attention to the cases of Indigenous offenders to ensure that no systemic barriers preclude Indigenous offender program referrals. The individual circumstances of an Indigenous offender should be considered in the context of the distinct situation of Indigenous persons in Canada.
How does the alternative measures program work?
The program is administered by the Correctional Services Division of the Ministry of Justice and Solicitor General (probation officers). The probation officer will meet with the individual to set out what the requirements of the program are for that particular person.
In determining what the individual will be required to do to satisfy the program requirements, the probation officer will consider the following:
- The individual’s age;
- Whether the individual is in full-time attendance in school or other day programs;
- What the individual’s employment status is; and
- What time is available to the individual to complete the program.
What will I be required to do as part of the alternative measures program?
Typically, up to three of the following will be part of the requirements for an individual to successfully complete the program:
- Personal or written apology to victim(s);
- Personal service to victim(s);
- Community service to a non-profit community or government agency;
- Donation to a registered charity;
- Participation in Indigenous cultural/spiritual activities;
- Attendance and participation in an available community counselling or intervention program as available and appropriate;
- Completion of an essay or poster;
- Restitution/compensation/return of property to victim(s);
- Participation in a restorative justice program as available and appropriate; and
- Compliance with any other appropriate and reasonable condition.
What happens once I have completed the alternative measurements program requirements?
Once the probation officer has reported back to the prosecutor that the individual has completed the program requirements, the prosecutor will speak to the matter in court and tell the judge that they are withdrawing (dropping) the charges.
The matter will be concluded, leaving the individual without a criminal conviction.