Duhaime's Law Dictionary


Alternative Measures Definition:

Canada; a much lighter disposition of a criminal charge regarding an adult accused who would be prepared to plead guilty and which does not result in a criminal record or incarceration but instead usually results in a mild penalty such as community service, an apology to the victim or counseling.

Related Terms: Sentence

flag of CanadaCanadian lawyers have taken to refer to alternative measures by the term diversion; with reference to the nomenclature used in youth crime files and to the alternative measure contract the person endorses with the prosecutor, widely called a diversion contract.

The availability of alternative measures for adult offenders is set out at §716 of Canada's Criminal Code.

It is usually just for first offenders who are prepared to admit that they committed the crime, and where the crime has not been too serious.

As of 2008, some of the other criteria for alternative measures as set out in the Criminal Code are:

That the particular province of Canada in which the accused would be facing trial has signed onto the alternative measures program. The provinces are not obliged to provide this option - this alternative to a traditional sense of an accused person is permissive and not mandatory; and

That in the particular circumstances of the offense, such a disposition would not be inconsistent with the need to protect society or the victim.

The most unique feature of alternative measures is that it is usually left to the Crown prosecutor to direct an accused into alternative measures; the matter is not decided upon by the court - a judicial officer. The accused signs a contract with the Crown, sometimes called a diversion agreement. The exception to this, is if the accused person violates the diversion agreement, he or she might then have to face trial for the original offense.

Sentences chartAlternative measures are critiqued by some as being far too lenient and not effective in punishing and, therefore, reducing crime in the long run. For example, legal experts often consider alternative measures as a form of restorative justice.

Once the terms of the alternative measures diverging agreement or complied with, the Crown withdraws the criminal charge or enters a stay of proceedings.

Diversion or alternative measures is not a 100% breliable "get out of jail free" card, as set out in Halsbury's Laws of Canada, a virtual verbatim reiteration of §717(4) of the Criminal Code:

"The use of alternative measures in respect of a person alleged to have committed an offense is not a bar to proceedings against the person under the Code....

"If a charge is laid against that person in respect of the offence, and the court is satisfied on a balance of probabilities that the person has totally complied with the terms and conditions of the alternative measures, the court shall dismiss the charge.

"Where the court is satisfied that the person has only partially complied, the court may dismiss the charge if it is of the opinion that the prosecution of the charge would be unfair, having regard to the circumstances and that person's performance with respect to the alternative measures."

References:

  • Gold, A., "Criminal Procedure", part of Halsbury's Laws of Canada, First Edition (Toronto: LexisNexis, 2007), page 641.
  • Ruby, C., and others, Sentencing, 7th Edition (Toronto: LexisNexis, 2008).
  • Criminal Code of Canada, 1985 Revised Statutes of Canada Chapter C-46, §716.

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