Alternative Measures
Alternative measures was introduced in 1996 to allow adults and organizations to take responsibility for certain offences in specific circumstances without the necessity of going through the traditional judicial process.
Alternative measures aims to foster a sense of accountability that encourages the offender to recognize the harm they caused. Additionally, these measures serve the crucial purpose of ensuring public safety, deterring future offences, expressing disapproval, facilitating rehabilitation, and providing restitution to victims and the community for the crime committed.
The most suitable candidates for alternative measures are:
- Offenders with no record
- Offenders who have committed a less serious offence
- Offenders who are unlikely to reoffend
Alternative Measures Authorized by the Attorney General of Canada
The Attorney General of Canada authorizes federal prosecutors to use alternative measures consistent with the principles and criteria outlined under s. 717(1)(a) of the Criminal Code.
Acceptable Measures
- Restitution or compensation in cash or services
- Community service
- Referrals to specialized programs for treatment, education, or counselling
- Referrals to community, aboriginal, or youth justice committees
- Victim-offender reconciliation programs
- Restorative justice such as a letter of apology or essay
A federal crown prosecutor may also refer an offender to an acceptable alternative measures program that is part of a program authorized by a province or territory in accordance with s. 717(1)(a).
General Principles for Alternative Measures
Alternative measures can be used before or after a charge is laid. Crown counsel should adopt a balanced and adaptable approach based on established principles when determining whether alternative measures is appropriate.
In situations where the Crown is considering the use of alternative measures and there is no dedicated alternative measures program framework (such as under the Canadian Environmental Protection Act or the Youth Criminal Justice Act), the Court must ensure that the following conditions outlined in section 717 of the Criminal Code have been met:
- The measures are part of an authorized alternative measures program
- The offender is willing to acknowledge responsibility for the alleged offence
- there is sufficient evidence to proceed with the prosecution, and the prosecution is not barred at law
- The offender has been advised that he or she does not have to consent to an alternative measures process and has, before consenting to participate, been advised of the right to be represented by counsel
The Crown may exercise discretion to not prosecute the offence if the accused fulfils the conditions of the alternative measures program.
Guidelines for the Use of Alternative Measures
The Offender’s Circumstances
Crown counsel will consider the following when determining the offender’s suitability for alternative measures:
- Offender’s history: Previous offences (including convictions, diversions, or discharges) as well as the date and nature of prior offences.
- Previous use of alternative measures: Whether an authoritative body has applied the use of compliance measures, pre-charge diversion, or alternatives to charging the offender in the past for similar conduct.
- Offender’s remorse: If the offender has agreed to fairly compensate any victims
- Community safety: Whether the offender poses a risk to public safety.
- Rehabilitation: The offender has taken steps to prevent the recurrence of the offence by undergoing rehabilitative measures.
- Additional Charges: Crown counsel will also factor in whether the offender is facing multiple charges.
Nature of the Offence
Factors used to determine the seriousness of an offence:
- Whether the matter would typically proceed summarily.
- Existence of a prescribed minimum punishment for the offence.
- The likelihood that offence results in a sentence of imprisonment.
- Availability of a conditional sentence.
- Impact on the victim(s), encompassing potential or actual harm suffered by the victim(s) or society in general.
- Consideration of the views expressed by the law enforcement agency or investigative body (NB: Police will often make a recommendation for alternative measures).
- Relevance of aggravating factors outlined in section 718.2 of the Criminal Code, as well as section 718.21 for organizations, and similar factors present in other federal statutes.
Crown counsel must also establish whether any legislation, directives, or guidelines may influence the decision to address the conduct through an alternative measure.
Circumstances that may bar the use of Alternative Measures
- The offence involved the use of, or threatened use of, violence reasonably likely to cause harm beyond a transient or trifling nature.
- A weapon was used or threatened to be used during the commission of the offence.
- The offence falls within the category of a sexual offence.
- The offence had a severe impact on the victim(s), causing physical, psychological, or financial harm.
- The conduct exhibited sophisticated planning, indicating involvement in an ongoing criminal enterprise.
- Trafficking or possession for the purpose of trafficking Schedule I drugs like cocaine, heroin, ecstasy, or methamphetamine by an individual.
- Trafficking or possession for the purpose of trafficking a controlled substance in or near a school, on or near school grounds, or in or near public places frequented by individuals under 18 years of age.
- Trafficking or possession for the purpose of trafficking a controlled substance to a person under 18 years of age.
- Involvement of a person under 18 years of age in committing a drug offence.
- The offence demonstrates a high degree of profit motivation.
- The offence resulted in or had the potential to cause significant harm to human health, safety, security, the environment, a natural resource, a regulated industry, or public confidence.
Crown counsel must consult with the Chief Federal Prosecutor if they conclude that exceptional circumstances exist after considering the circumstances above.
Preferred Procedure and Successful Completion of Alternative Measures
Crown counsel is encouraged to assess the appropriateness of alternative measures early in the process and respond to any suggestions or proposals from the defence counsel.
When Alternative Measures Has been Utilized:
- Court dates should be scheduled to monitor the offender's progress and ensure the successful completion of the measure.
- The Crown should withdraw charges and encourage the court to endorse this decision following the satisfactory completion of the alternative measure.
- The Crown’s files should be documented accordingly.
If charges were not laid before the implementation of the alternative measure, the prosecution should proceed if the alternative measure was not completed to the satisfaction of the Crown.
Failure to Complete Alternative Measures
Criminal proceedings are expected to continue if the offender fails to complete the alternative measure. This stated, the Crown prosecutor should determine whether criminal proceedings are appropriate by investigating why the alternative measures program was not completed and by assessing whether the program can be completed.
Is your case suitable for alternative measures? Contact Nicholas Robinson, Criminal Lawyer for a free legal consultation today!
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