Are My Charges Eligible For Diversion?

August 5, 2019

In some instances, the Crown will offer a diversion, or direct accountability, instead of seeking a criminal conviction. Although ‘diversion’ is not finding guilt, it may require offenders to accept responsibility and not all criminal charges are eligible for diversion.

What Is Diversion?

Diversion is an alternative method of reparation instead of traditional sentencing such as fines or imprisonment. It gets the name because the offender is diverted out of the Court system. Instead of the sentence being determined by the Court, the Crown or sometimes a direct accountability worker that operates arms-length away from the Crown’s office decides the terms of diversion.

Although the Crown may offer a diversion when they initially screen the file, a criminal lawyer may be able to negotiate a diversion plan during pre-trial. For most adults, the likelihood of diversion is higher for first-time offenders on less serious charges. However, diversions are more common in cases involving mental health or young offenders.

Special considerations for young offenders are provided more regularly in the Youth Criminal Justice Act. The goal of the YCJA focuses more on rehabilitation and reintegration than on punishment.

Still, there is a growing demand for alternatives to prison sentences for adults as well. Diversion programs and other alternatives have the potential to reduce costs and offer greater rehabilitation.

Typical diversion programs involve activities such as community service, counselling (ex. Anger management, addiction), or charitable donations.

Which Criminal Charges Are Eligible For Diversion?

All kinds of criminal charges are technically eligible for diversion. The decision is usually based more on the situation and the circumstances of the defendant themselves rather than the specific offence. However, its use is generally limited to less severe charges.

Some of the most common criminal charges for diversion include such offences as Theft Under $5000, Fraud Under $5000, shoplifting, and perhaps solicitation of prostitution.

How Is Eligibility Determined?

Ultimately, the decision of whether to offer or accept a diversion program is up to the Crown Attorney. While they do look at the offence itself, they also examine a number of other factors including:

  • Criminal record
  • Interactions with police (cooperation during arrest and past dealings)
  • Severity of offence
  • Willingness to accept responsibility
  • Wishes of the victim(s)
  • Severity of the offence

As well, they may also consider the cost of prosecuting the case. For a less serious offence that is difficult and expensive to prove, a diversion may be preferred. This saves the Crown time, money, and resources that they can use on higher priority cases.

If the right conditions are met, the Crown may offer or accept a filing for diversion.

Can I Dispute A File Deemed Ineligible?

Although diversion may not be initially offered, or the initial screening of a case may be determined ineligible, it is still possible to receive one. After the initial view, a criminal lawyer can attempt to convince the Crown that an accused is a good candidate for diversion.

What Happens After A Diversion?

If an agreement to accept diversion is made the terms of the program are made and Court is adjourned. It then falls upon the offender to complete the terms of the diversion, often within a set reasonable time period.

Once the terms of the diversion are complete (i.e… completing required community service hours), and the Crown is satisfied, the charges are withdrawn. An accused can then request that the police destroy their fingerprints and photographs.

In theory, the terms diversion, including accepting responsibility for the offence, cannot be used against the accused in future Court proceedings.

If, however, an accused person fails to meet or prove the terms of the diversion the Crown may pursue the original charges.

Hiring A Criminal Lawyer For A Diversion

If you are offered – or hope to seek – diversion you should hire a criminal lawyer. They can appear on your behalf and perhaps negotiate a better agreement with the Crown. As well, they can assure that the charges are properly withdrawn, receiving certified documentation and requesting the destruction of records and identification.

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