Extrajudicial Measures and Informal Diversion: Is There a Difference?

When a young person between the ages of 12 and 17 is accused of a crime, the law allows for flexibility in fashioning an appropriate response. In many cases, keeping the case out of court will be the most effective way to reduce the likelihood of future offending and keep the public safe.

This reality is recognized by the Youth Criminal Justice Act(YCJA), which provides for “extrajudicial measures”—literally “out-of-court” measures or “EJM” as it is commonly called—as  a default response for first-time, non-violent offences, as well as an option to be considered in other cases. Across Canada, EJM commonly takes the form of an informal warning from police, a formal warning (i.e. caution) from police or Crown, or a referral to a program designed to help the young person avoid reoffending.

The most onerous form of EJM is an “extrajudicial sanction” (EJS), which is essentially a referral that carries with it a two year record. EJS is an important option to have in the Crown’s toolkit, but one that can have a very serious negative impact on a young person’s future. The two year record can impact work, travel, self-identity, and ultimately the ability to overcome the circumstances that led to the criminal behaviour. When less damaging responses are appropriate, they need to be used.

Unfortunately, a common interpretation of the YCJA in Ontario is that EJS is the only diversion option available after a young person has been charged. Under this interpretation, any one of 26,000 Ontario police officers (with varying knowledge of the YCJA) effectively has the power to impose a two year record on a young person, since the young person is likely to be faced with a choice between accepting EJS or going through the long and arduous process of a trial. When faced with only these two options, many lawyers will appropriately advise their client to accept EJS, despite the serious consequences.

However, there is a third option. Many experienced defence and Crown counsel are willing to advocate for and accept “informal diversion”. Essentially, the accused young person voluntarily participates in a program, on the understanding that Crown counsel will take this participation into consideration when deciding whether to proceed with the charge. This is not EJS, but rather can be usefully thought of as another form of EJM, based on the legitimate (and quite common) exercise of Crown discretion (in Ontario, approximately 40% of adult cases and 50% of youth cases are stayed or withdrawn before trial through Crown discretion). Withdrawing youth charges based on willingness to engage in diversion programming should not be controversial in appropriate cases, since the role of Crown counsel is to promote justice, and not necessarily to seek convictions.

In other provinces, implementation of the same Act has yielded very different results, including more legitimized post-charge EJM in several provinces. For example, in Newfoundland and Labrador, the Crown policyfor youth diversion explicitly acknowledges that Crown has discretion to make referrals to community programs outside of the EJS process, even though this power is not expressly codified in the YCJA. In Quebec, British Columbia, and New Brunswick, all charges are screened by Crown counsel, which opens the door to discussions between Crown and police regarding the full range of EJM options. In Alberta, there is a Crown caution program, which is another alternative to EJS after a charge has been laid.

In contrast, Ontario has no pre-charge Crown screening program, no Crown caution program, and a Crown prosecution manualthat is silent on the issue of “informal diversion” for youth. Granted, there is reference to informal diversion for adults, but it is limited to situations where no formal programming exists.

The distinction between EJM and EJS is ultimately an access to justice issue. At some courthouses in Ontario, informal diversion will neither be requested nor offered. Even at courthouses where informal diversion is used, its “informal” status can create a sense that it is less legitimate, decreasing the extent to which it is used or even known to many lawyers. Unequal access to justice along regional and economic lines is the likely result.

Further, the failure to recognize informal youth diversion in Ontario’s Crown prosecution manual leads to peculiar results. Where the use of EJS is restricted by Ontario policy (based on ineligible or presumptively ineligible offences), Crown will still have inherent discretion not to proceed with the prosecution of the offence if doing so would be contrary to the interests of justice. Thus the door is always open to informal diversion. As a result, relatively serious cases that might be most appropriately dealt with through EJS are sometimes dealt with informally. Presumably, this was not the intention of policymakers. Restricting EJS based on ineligible or presumptively ineligible offences is an ineffective policy that can actually serve to reduce accountability for more serious offences.

Until “informal diversion” is codified in the YCJA or better recognized in Ontario’s Crown prosecution manual, all Crown and defence counsel across the province who work with youth need to be made aware of this possibility and advocate for its use in appropriate cases.

Rob Mason was Peacebuilders’ Public Interest Articling Fellow (2017-2018). Rob graduated from the University of British Columbia’s Allard School of Law in 2017, with a specialization in law and social justice. Prior to law school he studied international relations at the University of Toronto. Rob has been active in various volunteer activities, including PBSC placements at the Canadian Civil Liberties Association and the BC Public Interest Advocacy Centre. Rob has been published in the Canadian Centre for Policy Alternatives Monitor, and the Globe and Mail, among other publications. Rob is driven to better integrate social justice considerations into law and policy, and thus to contribute positively to social change.

This blog is intended to provide a platform for a range of perspectives on restorative justice and Canada’s youth justice system. The views expressed in this blog post do not necessarily reflect the views of Peacebuilders.