Alternative Measures Program

Any admission, confession, or statement accepting responsibility for an act — made as a condition of being dealt with through the alternative measures program — cannot be used as evidence against that person in any civil or criminal proceedings.

The judicial system recognizes that not every person alleged to have committed an offence should be prosecuted. Alternative measures were introduced in the Criminal Code though s.717 in 1996 to enable adults and organizations to take responsibility for offences in certain circumstances without going through judicial proceedings. In some cases, alternative measures are used when the Crown — or a person authorized by the Attorney General — is satisfied the public interest would be better served by a resolution outside the traditional criminal process. Addressing an offender's conduct through measures outside of the courtroom is also known as "diversion." According to the Alternative Measures section of the Department of Justice (DoJ) handbook, their purpose is to promote a sense of responsibility in the offender while promoting public safety, deterrence and rehabilitation.

The range of alternative measures is broad, allowing for each offender to be given a program that reflects the circumstances of the offence they are accused of and the personal issues they might be dealing with. These measures can include:

• community service;
• restitution or compensation in cash or services;
• enrolment in a counselling program to deal with drug or alcohol addiction or anger management;
• referrals to community, aboriginal or youth justice committees;
• victim-offender reconciliation programs; and
• a letter of apology or essay.

According to the DoJ, Crown counsel determines whether alternative measures are appropriate in a given case. The offender stands a good chance of being enrolled in the program if they have no record, have committed a less-serious offenceAn indictable offence with a maximum punishment of five years or more. and are considered unlikely to reoffend. It also helps if they are remorseful about their actions and are not a risk to the community. If the Crown is considering alternative measures instead of pursuing the regular legal channels, the accused must be informed of the alternative measures program and give free and full consentVoluntary agreement to engage in an sexual act. They must also accept responsibility for the act or omission that forms the basis of the offence that they are alleged to have committed. If the offender wants their charge to be heard in court they can refuse to take part in the alternative measures program. They also have the right to have legal counsel represent them in court. Whether the program is available in any given case depends on a set of conditions in the Criminal Code (s.717). These include whether the province or territory has an authorized program in place, whether the Crown considers it appropriate given the nature of the offence and the person's circumstances, and whether the person accepts responsibility for what they are alleged to have done. There is no fixed list of excluded offences, and no single federal statute that automatically bars access. Each case is assessed individually against these conditions.

The use of alternative measures can occur before or after a charge is laid. According to the DoJ, any discussion about them generally occurs after a charge has been laid and the file has been forwarded to Crown counsel, except in regions where pre-charge screening takes place.

Section 717 of the Criminal Code does not list specific offence types as automatic bars to alternative measures. Instead, eligibility turns on a broad discretion standard: the person considering whether to use the measures must be 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" (s.717(1)(b)). In practice, Crown prosecutors and program administrators will generally decline alternative measures where any of the following apply:

• the offence involved the use of, or threatened use of, violence;
• a weapon was used or threatened to be used in the offence;
• a sexual offence was committed;
• the offence had a serious impact (physical, psychological or financial) upon others;
• the offender was traffickingInfluencing the movements of a person in order to exploit them a controlled substance, such as cocaine, heroin, ecstasy or methamphetamine;
• the offender trafficked a controlled substance near a school or in a public place frequented by persons under 18; or
• the offender trafficked a controlled substance to a person under 18.

The last two items reflect conduct that Parliament has identified as aggravating factorsAny information or evidence that may result in a heavier sentence at sentencing for designated substance offences under s.10(2) of the Controlled Drugs and Substances Act. They inform the Crown's diversion assessment even though they are not a statutory bar in s.717 itself.

These are matters of Crown discretion, not bright-line statutory prohibitions. A case falling into one of these categories is not automatically ineligible for alternative measures, but diversion is unlikely. Anyone in this situation should speak with a criminal defence lawyer.

Once the court is satisfied that the accused complied with the terms and conditions of the alternative measures, the charge will be dismissed. Section 717 (4) also allows for a dismissal of charges if the offender partially complied with the terms and conditions of the alternative measures, and the court decides it would "unfair" to prosecute the charge any further.

If the accused does not complete the alternative measure program, regular criminal proceedings may be ordered. However, the DoJ notes that before doing so, Crown counsel should determine why the measure was not completed and determine whether it could be completed. The department also advises Crown counsel to assess the appropriateness of proceeding with prosecution in light of those facts, as “exceptional circumstances” may make that unfair.