The Association opposes in principle the formal adult pre-trial diversion programs favoured by the government. Diversion deprives a person of due process while placing him or her under the control of the state and giving him or her a quasi-criminal record. While we offer some suggestions that may help to alleviate some of the worst dangers of diversion, we remain convinced that the concept of diversion is inimical to due process, and that due process is essential to justice.
The Association does share some of the objectives that have led governments to favour diversion. Moreover, the Association applauds the efforts of the Ministry to develop official, explicit and objective guidelines to govern diversion programs in the province. Nevertheless, there are several issues that are raised by the Draft policy and which concern the protection of the civil liberties of accused persons. These issues divide into three categories: the selection of candidates for diversion, the content of the diversion agreement, and the later consequences of participation in diversion. We begin with a more general issue.
Diversion as a priority
The impetus of diversion derives in large measure from the perception of faults in the existing criminal justice system. These include:
- large court backlogs, which cause serious delays in having cases heard
- excessive resources, including court time, being used to deal with large numbers of minor offences
- the failure of the prison system to “rehabilitate” offenders, as is shown by rates of recidivism
- overuse of imprisonment as a punishment for minor offences
- the fact that minor offenders acquire a criminal record.
We hope that use of diversion will alleviate some of these problems. But expectations for diversion may be too high. Relying on diversion to alleviate these problems may lead to attention being distracted away from the need to tackle the problems directly.
We would like to see the Ministry make it a priority:
- to work toward the decriminalisation of selected minor offences
- to make available to judges imaginative and constructive sentencing alternatives under the probation system, such as Ontario’s Victim Offender Reconciliation Program
- to encourage use of the absolute and conditional discharge as sentencing alternatives
- to work, together with federal authorities, to reform the prisons
- to attempt to eliminate sources of delays in the court system.
Members of the justice system involved with diversion may have desires for the diversion program that diverge from those of the ministry. The result may be a distortion of priorities, given that there is no provision for appeal from or review of diversion decisions of Crown Counsel. As an illustration, we notice that many people in the justice system perceive that “legal technicalities” make it difficult to secure convictions. Crown Counsel with such a perception may attempt to divert persons whose cases should either be dropped or brought to trial, and perhaps people whose cases would otherwise be dropped. We realize that this is not the Ministry’s intention, but doubt that the guidelines can prevent this. We will return to this point below.
The selection of candidates for diversion
Our main concerns with respect to the selection of divertees are that there be due process, “equal protection”; for all potential divertees, protection from the danger of self-incrimination, and informed consent to diversion by any divertee. We realize that the Ministry has adopted the so-called “voluntary diversion model”, following the decisions in the Jones case, and that those who default on a diversion agreement are not to be prosecuted for the original offence. But this does not eliminate all sources of concern.
Review and appeal
In our view, our concerns could only be dealt with adequately if there were public, explicit, unambiguous, and official guidelines governing the circumstances and procedures for diversion. Unlike the proposed guidelines, ideal guidelines would provide some mechanism for an independent public review of diversion decisions and for appeal by the accused against unfavourable diversion decisions. The need for review and appeal procedures arises for the following reasons:
- to ensure that the guidelines are followed, that alleged offenders are given the right to consult counsel, for example
- to ensure equal treatment, that persons in similar circumstances have similar chances to be diverted and that subjective or irrelevant criteria are not used in deciding whether to divert certain persons;
- to provide an opportunity for those who feel unfairly treated to have an independent review of the decision taken in their case, and;
- to ensure that the system is seen to be fair by the public.
Eligible offences and persons
In addition, the guidelines should clearly state which categories of offences are covered by diversion and which categories of accused persons are and are not eligible. The proposed guidelines are insufficiently explicit on these points.
Instead of specifying the offences covered, the Crown guidelines say only that an eligible offence “must not have been of such a serious nature as to threaten the safety or tolerance of the community” (guideline 3, p.4). This seems to us not to say what is meant, for few offences threaten the safety of the community, and few offences would be tolerated.
Moreover, the notion that the offence must not threaten community tolerance is vague. We think that this wording might lead a politically cautious Crown Counsel to avoid diverting in all but trivial cases, and might prejudice the chances for diversion of alleged offenders whose cases for some reason come to public attention, even if the alleged offence is comparatively minor. We think there is no substitute for a clear and explicit delimination of eligible offences. The draft policy does say in passing that diversion is limited to cases that would otherwise proceed to Provincial Criminal Court, but such a remark should be in the guidelines, and moreover, could be more explicit. For instance, is it intended that only Criminal Code section 483 offences are eligible, or 483 and 484 offences?
The guidelines do not state which categories of accused are or are not eligible except to say that there must be good reason to believe that diverting the accused would not endanger the community (guideline 2, p.4). The intention behind this is worthy, but we think it might lead Crown Counsel into amateur psychology. It would be preferable to provide objective criteria such as that the alleged offence must not be a violent crime and the accused must have no record of conviction for a violent crime. In general, although there is no escaping the fact that counsel must use their judgment, they should be provided with empirical criteria. For instance, if it is the Ministry’s policy, as seems to be suggested, that persons with criminal records, or who have previously and recently been diverted, should not be eligible for diversion, this should be made explicit in the guidelines.
Selecting cases for diversion
Guidelines 1 and 4 (p. 4) govern the selection of cases for diversion that fall within the eligible categories. We discuss them in turn.
Guideline 1 states the Crown may divert if it believes it has a prima facia case against the accused. We think this is too weak. Schiff states in Evidence in the Litigation Process (p. 1138), that there is a prima facie case if there is “sufficient evidence to defeat the opponent’s motion for non-suit or directed verdict.” There are other uses of the term, but on any use, evidence sufficient for a prima facie case does not even guarantee that the Crown Counsel believes he or she could obtain a conviction. It guarantees that the Crown has a case, but the Crown may know of what would likely win the case for the accused, and nothing in the guidelines directs Crown Counsel not to divert in such a case. That is, the guidelines would allow a case to be diverted that should be dropped and might otherwise be dropped. One danger which must be borne in mind, and which appears here, is that diversion may result in an increase in the number of people who are directly or indirectly under the supervision of the criminal justice system. To avoid this, we think it would be wise to reformulate guideline 1 along the lines suggested on page three: The Crown must believe that there is evidence sufficient that prosecution of the accused for the alleged offence would he successful.
Guideline 4 states the accused “must voluntarily admit the accuracy of the facts of the case”. A first point to make here is that the wording of this requirement should be kept constant. Guideline 9 for those negotiating diversion agreements (p. 7) says divertees must “acknowledge responsibility for the act which gave rise to the diversion”. This is a much stronger requirement, and amounts to requiring admission of guilt, notwithstanding the disclaimer that “Divertees must not be required to admit guilt in a technical-legal sense” The distinction envisioned here is obscure, although we agree that divertees must not be required to admit guilt. We think it enough that a divertee be required to admit the accuracy of the facts alleged and that the Crown have adequate reason to believe that to divert the person in question would be in the public interest, all things considered. It would be dangerous to ask Crown Counsel to assess the potential divertee for evidence of regret or remorse, for this would be an invitation to amateur psychologizing and to the introduction of irrelevant considerations.
A second point to make about guideline 4 (p. 4) is that it is questionable whether such admissions will ordinarily be voluntary. It seems to us that there will always be an element of coercion, for the accused chooses diversion under the threat of prosecution. At the least, significant inducements are offered even to those who believe themselves to be innocent, for by admitting the facts and accepting diversion, they avoid the risk of conviction, the stigma of a court appearance, and the expense of defending themselves. The existence of such inducements makes it questionable, both in common sense and in law, whether such admissions are voluntary. We refer to the remarks of Lord Sumner in Ibrahim (1914) A.C. 599 at pp. 609-10, quoted for example in Piche v. The Queen (1971) S.C.R. 23, 11 D.L.R. (3d) 700).
The questionable voluntariness of diversion agreements is a problem not only because the success of diversion programs requires that divertees be properly motivated. An additional problem is that innocent persons might think it reasonable to accept diversion. This creates worries because of the later consequences of participation in diversion, an issue to which we return below. Because of these problems, we think it extremely important that Crown Counsel only divert when they believe they could obtain a conviction, that divertees have access to counsel and be eligible for legal aid, that diversion records not be used for anything but purposes internal to the diversion program, and so on. These issues will be mentioned again below.
Informed consent
Potential divertees must he fully informed of the nature of diversion and of the guidelines under which the program operates, and they must have the right to consult counsel. We think the guidelines could be improved in this regard.
Guideline 5 (p. 4) provides reasonable assurances that divertees will be informed of the situation, as far as it goes. However, we think that Crown Counsel should be given explicit direction in guidelines 5 and 6 as to how much time a potential divertee is to be allowed, at a minimum, to consult counsel and make his or her decision. The Crown should also be required to act expeditiously and a maximum length of time for the Crown’s decision should be stated explicitly.
Divertees should be eligible for legal aid to ensure that all potential divertees are able to exercise their right to consult counsel.
There is no provision in the guidelines requiring that potentia1 divertees be informed of the content of guidelines 7, 8 and 9 (p. 5). But it is absolutely crucial to the potential divertee’s decision that he or she know, for example, that it is official policy that what he/she says in diversion negotiations could not be used as evidence against him or her, and that he or she will not be prosecuted if he or she defaults on his or her agreement.
It cannot be ensured that divertees will be fully informed if there is no provision for appeal or review of diversion decisions, and so no way to ensure guidelines are followed.
It is essential to an informed decision that the accused be informed of a specific charge that Crown Counsel is contemplating laying against him or her. The charge must be precisely the one prosecution of which Crown Counsel believes would be successful, aid prosecution of which he or she would commence if negotiations for diversion were to fail. We think a guideline should be added which requires that the accused be given this information.
Self-incrimination
Guideline 7 (p. 4) is meant to ensure that remarks of the accused made during diversion negotiations will not be used in a subsequent prosecution should diversion not be entered into. However, as written, we think this guideline is too narrow and vague and that it raises the spectre of contested borderline cases.
The guideline says conversations with respect to the offence between the accused and Crown Counsel shall not be used against the accused. We would like it made explicit that no statement, written or oral, made by the accused during negotiations for diversion to any official if the justice system, including Crown Counsel, shall be used against the accused in any subsequent prosecution, and in particular, no admission of the facts of the case in question should be used.
Statements made during diversion negotiations are to be protected, but precisely which circumstances are circumstances in which diversion is being negotiated, and who, precisely and under what circumstances, is a “candidate for diversion”? In some sense, any person accused of an eligible offense is a candidate for diversion. Is it intended that all conversations between Crown Counsel and any such person are to be protected? If not, then clear standards must be set requiring explicit opening and closing of periods of protected negotiation and requiring that accused persons be clearly informed of the opening and closing of such periods. Otherwise, there is an obvious danger of entrapment.
The content of the diversion agreement
Our main concern here is one of equity and fairness. We will return to this central issue shortly, but begin with other concerns.
Content of the agreement
By and large, the directions to the diversion negotiators contained in guidelines l, 6, 7, 8, 10 and 11 (pp. 6-7) are clear and reasonable. However, we wonder why guideline l rules out agreements to seek counselling or treatment. In certain cases, the root problem may be alcohol, gambling, emotional, inability to budget sensibly or lack of job training. We fail to see why, in such circumstances, an agreement to seek counselling might not be appropriate.
Veto of victim
The guidelines imply, but do not state, that the victim of the alleged crime, if there is one, may veto a diversion agreement. We fail to see why this should be so. The Crown has the discretionary right to decide not to prosecute, and its exercise of this right is not subject to a veto by any victim of an alleged crime. There is no reason to give a putative victim any greater veto power with respect to Crown decisions to divert than is given with respect to other Crown decisions not to prosecute.
Access by divertee to diversion documents
We have already contended that potential divertees should be given access to official diversion guidelines. We also think they should be given copies of the signed diversion agreement (see guideline 5, p. 7), and of the report submitted to the “diversion source” by the diversion supervisory personnel as to whether or not the terms of the agreement were completed (see guideline 13, p. 8). In addition, the divertee should have the right to make representations should he or she not agree with the report, and he or she should have access to the diversion record (see p. 12).
Equity, Fairness and Natural Justice
Similar persons in similar circumstances should have similar decisions taken in their cases concerning whether they should be diverted and concerning the content of their diversion agreements. It would be unfair, for example, if one person were required to agree to quite a stringent program as a condition of diversion in a case similar to one where another person was allowed a less demanding program. However, since there is no provision for review of, or appeal from, diversion decisions, and since diversion decisions are taken in private, there is no way even of knowing whether the system is fair, much less of ensuring that it is fair. Thus, the guidelines do not meet the standard set by Anderson, J. in R v. Jones (March 6, 1978) No. CC780141, Vancouver Registry (B.C. Supreme Court) where he said that “guidelines should be imposed… so that equal justice will prevail throughout the province”.
At the least, the guidelines should require that diversion agreements not be more demanding than the sentence which would be expected were the accused to be convicted and sentenced in court. Such a requirement should be added to guidelines 6 and 11 (p. 7). Neither the conditions of the plan, nor the length of time the divertee would be under supervision, should exceed provisions of the typical sentence for similar offences by similarly placed offenders. This is particularly important in situations where the courts would be expected to use the sentencing alternatives of probation, or absolute or conditional discharge.
Later consequences of participation in diversion
One who has been diverted has acquired a peculiar legal status. Because of the nature of the requirements for diversion, he or she will be seen to have admitted guilt. Divertees will be presumed to be guilty of the alleged offence, even by officials in the justice system, and no set of guidelines will prevent this as long as “admitting the facts”, or “accepting responsibility” is a condition of diversion. This raises practical issues concerning the use of diversion records, and the undertaking that a defaulting divertee will not be prosecuted for the offence that led to diversion, and it also suggests that diversion may undermine the traditional presumption of innocence.
Prosecution on default
In light of the Jones decision and the new policy of the Attorney General, there is little chance that a divertee who defaulted on his agreement would subsequently be charged with the offence that led to the original diversion. However, we reiterate that potential divertees should be informed of this fact and we suggest a clarification of guideline 8 (p. 5). We suggest the wording: no person who has made such an approved agreement shall be charged with the offence(s) which gave rise to the diversion or any other offence on the same facts.
Diversion records
The draft policy indicates that central diversion records and case files will be maintained at the provincial level and that individual case records will be maintained locally.
After three years from the date of the diversion agreement, the records are to be altered so that the identity of the divertee cannot be determined from the records. We have further questions and comments.
- The guidelines should clearly specify the conditions under which ministry personnel and the expected external researchers will be given access to these records. There are many circumstances under which Crown Counsel might find it useful to know whether an individual has been diverted, and the guidelines do not limit the use to which this information may be put (see pp. 11-12). For instance, might a person applying for employment with the province be screened for a recent diversion record? What about persons applying for a license or permit? Since a divertee has not been convicted of the alleged offence, his or her record must not be treated as a criminal record in any respect.
- Guideline 9 (p. 5) says “It is not intended that such records will be entered into a CPIC network.” However, it would be preferable to say, unambiguously, that it is official policy that they shall not be so entered.
- The draft policy does suggest, but it does not unambiguously state, that diversion records are maintained only for the purpose of assessing the suitability of an individual for future diversion. Guideline 89 (p. 5) says this is a purpose, but does not say it is the only purpose of the records. We propose that this should be the only permitted use of the records, other than legitimate supervised research, and we suggest that this guideline be amended.
- We have a letter from the then Attorney General dated March 19, 1979 in which Mr. Gardom suggests that a diversion record should be used in speaking to sentence should the divertee be charged with a new offence before the courts. He quotes with favour the remarks of Seaton, J.A. in R. v Walter Drew, B.C.C.A. No. 780546 (November 30, 1978) at p. 5 who said, in speaking for the majority:
I turn now to the diversion program as distinct from the allegation that led up to it. In my view the program ought to be taken into account much as a previous period of probation ought to be taken into account. It is part of the history of the person being sentenced, a part that would be particularly relevant if a sentence of probation was being considered.
With all due respect, we suggest that this amounts to treating a divertee as though he or she had been convicted of an offence, and it amounts to treating a diversion record as a criminal record. The relevant and crucial difference between a period of probation and participation in diversion is that a divertee has not been convicted. To treat the two as analogous for purposes of sentencing is to undermine the presumption of innocence. We therefore propose that it should be Ministry policy that diversion records not be used as evidence in court, but only be used for assessments of the suitability of individuals for future diversion.
- If the Ministry decides to persist in the policy stated by Mr. Gardom, then it is imperative that potential divertees be informed of the policy and of any use to which a diversion record may be put. Moreover, and in any case, divertees should have access to records of their own cases.
The presumption of innocence
In our view, it would be a matter for serious concern were the pursuit of the worthwhile objectives which is fuelling the impetus toward increased use of diversion to undermine the presumption of innocence before the law. This is one of the pillars of Canadian justice and must not easily be compromised.
Some will protest that any divertee must have voluntarily admitted the alleged facts and, in effect, must have admitted guilt. In face of this, we can only underline the fact discussed above those potential divertees who accept diversion do so with significant inducements and under the threat of prosecution. It is questionable, from a legal point of view, whether such admissions are voluntary. At the least, the probative value of such admissions is a legal issue that would have to be tested for each case in a court of law. For this reason, Ministry policy should in no way reflect the assumption that a divertee is guilty of the alleged offence.
