Type of document: Prosecution Directive
Effective date: November 14, 2017

Community justice programs may provide an effective alternative to a formal prosecution. In some cases, the needs and interests of society can be better served through the exercise of prosecutorial discretion to withdraw or stay criminal charges upon an accused person’s completion of a comprehensive diversion program.

Community based sanctions hold an accused person accountable for criminal conduct by requiring the completion of rehabilitative programs that effectively respond to the nature of the offence and accused, and the local needs of the community. An example is the Direct Accountability Program, in place in most jurisdictions across Ontario. Another example is the Indigenous Community Justice Program that provides an alternative for Indigenous adults.

Accused persons participating in one of the programs must be willing to assume responsibility for the actions that lead to the criminal charge and be prepared to make meaningful amends. Once in a program, a plan will be created for the accused that will address the underlying cause that lead to the offence. Prosecutors must only consider community based sanctions if a reasonable prospect of conviction exists and must not impose additional requirements on the accused person as a precondition to offering an alternative to diversion.

In circumstances where no formal programming options exist, Prosecutors may also exercise their discretion to consider informal modes of diversion. Where the alternative is a donation to charity, the amount donated must be approved by the Crown Attorney or designate, if it exceeds $1000.

This directive addresses diversion for adult accused persons. For young persons, please see Youth Criminal Justice: Extrajudicial Sanctions. For an adult suffering a mental illness, please see Mentally Ill Accused: Alternatives to Prosecution. For an Indigenous accused, please see Indigenous Peoples Directive.

Ineligible offences

Prosecutors must not refer any of the following offences to a community justice program, regardless of the circumstances of the offence or the accused:

  • murder, manslaughter, infanticide, criminal negligence causing death
  • driving offences causing death or bodily harm
  • aggravated assault
  • simple impaired driving or driving with a prohibited blood alcohol concentration or refusing to provide a breath sample
  • offences involving firearms
  • criminal organization offences
  • terrorism offences
  • kidnapping
  • voyeurism
  • publication etc., of intimate images without consent
  • child abuse and child luring
  • offences involving child pornography
  • home invasions
  • human trafficking offences
  • robbery
  • sexual offences including sexual assault, sexual assault cause bodily harm, sexual interference and exploitation, invitation to sexual touching and incest
  • any offences where the Attorney General’s consent was obtained to initiate proceedings

Presumptively ineligible offence

In exceptional cases, the Prosecutor may refer the following presumptively ineligible offences to a community justice program with the prior approval of the Crown Attorney or designate:

Eligible offences

The Prosecutor may refer any other offence to a community justice program.

Factors to consider

In determining if a community justice program is an effective alternative to a formal prosecution for a presumptively ineligible offence or eligible offence for an adult accused, the Prosecutor and Crown Attorney or designate must consider the following factors:

Background of the accused person:

  1. the age and health of the accused person
  2. any prior findings of guilt or past involvement with community justice programs
  3. the nature and number of any such previous offences
  4. any outstanding charges
  5. the role of the accused person and their corresponding degree of responsibility in relation to the offence
  6. whether the accused person had been previously victimized
  7. any remorse and willingness to engage in a community justice program
  8. any prior restitution
  9. if the accused person comes from a disadvantaged group
  10. whether the accused self-identifies as Métis, Inuit or First Nations.

The circumstances and nature of the offence:

  1. whether the offence is summary or indictable
  2. whether the offence involves violence
  3. whether the offence actually harmed the victim (physical, psychological or financial) and/or society
  4. whether the incident affected the sexual integrity of a person
  5. whether a weapon was used or threatened to be used
  6. whether there was an intention to cause or attempt to cause substantial property damage or loss, and if so, whether the damage was reasonably foreseeable
  7. whether the offence was against the administration of justice, such as breach of a court order, and, if so, the extent of non-compliance
  8. whether the offence involved malice, extortion, exploitation or revenge
  9. whether the offence involved a breach of trust
  10. whether the offence was motivated by bias, prejudice, or hate
  11. the age of the victim
  12. the views of the victim and/or their parents or legal guardians (if victim is a child), if available.

Administration of justice considerations:

  1. public confidence in the administration of justice
  2. the length and expense of a trial when considered in relation to the seriousness of the offence
  3. the likely sentence upon conviction
  4. the availability of an appropriate sanction, including culturally relevant programming options, which will hold the accused person accountable and focus on correcting the offending behaviour
  5. frailties in the prosecution e.g. staleness of the case, or the technical nature of the offence
  6. whether the consequences of the prosecution would be unduly harsh to the accused person, the victim or any witnesses in the case, owning to such factors such as age, health or the relationship between the parties
  7. whether a just result is accelerated by a referral to a community justice program.