Some criminals get off lucky

Last week, I described Crown Counsel’s charge approval process. This week, I will discuss a type of ‘sentence’ that results BEFORE the charge approval process begins. This type of ‘sentence’ is referred to as ‘diversion’.

To begin, diversion is not exactly a ‘sentence’; it does not come after a finding of guilt like other ‘sentences’ (which occur after a trial or after a guilty plea in court). Diversion refers to the process of people being diverted away from the courts to an alternative option/program designed to address the root cause(s) of their criminal behaviour.

Diversion is a method to keep the ‘offender’ out of court; it is premised on the idea that entering the criminal justice system can do more harm than good. A one-time conviction can have a significantly negative impact on a person’s life – their job and travel can be hugely affected, even when only minor criminal offences occur.

In B.C., police and Crown Counsel are gatekeepers for diversion; a judge cannot invoke diversion.

Diversion is typically reserved for individuals with little or no criminal record and for relatively minor offences, such as minor fights/scuffles, minor theft/shoplifting, and mischief.

There are two forms of diversion: informal and formal.

Informal diversion occurs when a police officer does not forward any documents to Crown Counsel, preventing Crown from proceeding with their charge approval process. Instead, the police office gives the accused a ‘warning’. It is most often employed with young offenders who are returned to their parents. As you can imagine, a police officer’s strongly worded speech/cautionary tale can have a lasting impact.

In Kelowna, informal diversion can also occur when police refer offenders to Kelowna’s Restorative Justice Programs, either run through the John Howard Society (for adult offenders) or through the Okanagan Boys and Girls Club (for young offenders). At these Programs, the offenders address the causes of their criminal actions and discuss and repair the harm that they caused (to the victim, to themselves, to their family, and to the community).

Alternatively, formal diversion, also known as ‘alternative measures’, is offered by Crown Counsel. In formal diversion, the offender may have to participate in a treatment program, perform community service, and/or write an apology letter to the victim, all of which are designed to address anti-social behaviour.

Formal diversion requires the offender to accept responsibility for the offence and to consent to the diversion program. Also, Crown cannot proceed with formal diversion if Crown cannot get a conviction against that offender (i.e. if there was a lack of evidence). Diversion cannot be used as a net-widening process to capture more offenders who would not otherwise be prosecuted.

Formal diversion is further discussed in section 717 of the Criminal Code.

I understand that some people want ALL offenders taken to court and have the ‘book thrown at them’. However, that position is totally wrong.

Personally, I am most interested in having low crime rates and the rate of re-offending is SIGNIFICANTLY lower for those offenders who are given diversion versus those offenders who are taken to court. Also, diversion is much cheaper (costs less tax dollars/uses less resources) and is resolved (addresses the offence/offender) much sooner than the typical court process.

In A LOT of cases, it makes ZERO sense for the offender to go to court.

Now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.