Alternative Measures

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 93060)

General Principles

716 In this Part [Pt. XXIII – Sentencing (ss. 716 to 751.1)],
...
"alternative measures" means measures other than judicial proceedings under this Act used to deal with a person who is eighteen years of age or over and alleged to have committed an offence; (mesures de rechange)
...
R.S., 1985, c. C-46, s. 716; R.S., 1985, c. 27 (1st Supp.), s. 154; 1995, c. 22, s. 6; 1999, c. 5, s. 29(E).

CCC (CanLII), (DOJ)


Note up: 716

When alternative measures may be used

717 (1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:

(a) the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General’s delegate or authorized by a person, or a person within a class of persons, designated by the lieutenant governor in council of a province;
(b) the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim;
(c) the person, having been informed of the alternative measures, fully and freely consents to participate therein;
(d) the person has, before consenting to participate in the alternative measures, been advised of the right to be represented by counsel;
(e) the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;
(f) there is, in the opinion of the Attorney General or the Attorney General’s agent, sufficient evidence to proceed with the prosecution of the offence; and
(g) the prosecution of the offence is not in any way barred at law.
Restriction on use

(2) Alternative measures shall not be used to deal with a person alleged to have committed an offence if the person

(a) denies participation or involvement in the commission of the offence; or
(b) expresses the wish to have any charge against the person dealt with by the court.
Admissions not admissible in evidence

(3) No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

No bar to proceedings

(4) The use of alternative measures in respect of a person alleged to have committed an offence is not a bar to proceedings against the person under this Act, but, if a charge is laid against that person in respect of that offence,

(a) where the court is satisfied on a balance of probabilities that the person has totally complied with the terms and conditions of the alternative measures, the court shall dismiss the charge; and
(b) where the court is satisfied on a balance of probabilities that the person has partially complied with the terms and conditions of the alternative measures, the court may dismiss the charge if, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and that person’s performance with respect to the alternative measures.
Laying of information, etc.

(5) Subject to subsection (4), nothing in this section shall be construed as preventing any person from laying an information, obtaining the issue or confirmation of any process, or proceeding with the prosecution of any offence, in accordance with law.
R.S., 1985, c. C-46, s. 717; 1995, c. 22, s. 6.

CCC (CanLII), (DOJ)


Note up: 717(1), (2), (3), (4), and (5)

The Criminal Code permits the provincial government to deal with certain criminal charges outside of the court system. This is usually in the form of diversionary programming available to first-time offenders of minor offences where the accused is prepared to accept responsibility.

Records

Records of persons dealt with

717.1 Sections 717.2 to 717.4 [alternate measures – types of records] apply only in respect of persons who have been dealt with by alternative measures, regardless of the degree of their compliance with the terms and conditions of the alternative measures.
1995, c. 22, s. 6.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 717.1

Police records

717.2 (1) A record relating to any offence alleged to have been committed by a person, including the original or a copy of any fingerprints or photographs of the person, may be kept by any police force responsible for, or participating in, the investigation of the offence.

Disclosure by peace officer

(2) A peace officer may disclose to any person any information in a record kept pursuant to this section that it is necessary to disclose in the conduct of the investigation of an offence.

Idem

(3) A peace officer may disclose to an insurance company any information in a record kept pursuant to this section for the purpose of investigating any claim arising out of an offence committed or alleged to have been committed by the person to whom the record relates.
1995, c. 22, s. 6.

CCC (CanLII), (DOJ)


Note up: 717.2(1), (2) and (3)

Government records

717.3 (1) A department or agency of any government in Canada may keep records containing information obtained by the department or agency

(a) for the purposes of an investigation of an offence alleged to have been committed by a person;
(b) for use in proceedings against a person under this Act; or
(c) as a result of the use of alternative measures to deal with a person.
Private records

(2) Any person or organization may keep records containing information obtained by the person or organization as a result of the use of alternative measures to deal with a person alleged to have committed an offence.
1995, c. 22, s. 6.

CCC (CanLII), (DOJ)


Note up: 717.3(1) and (2)

Disclosure of records

717.4 (1) Any record that is kept pursuant to section 717.2 [alternate measures – police records] or 717.3 [alternate measures – government and private records] may be made available to

(a) any judge or court for any purpose relating to proceedings relating to offences committed or alleged to have been committed by the person to whom the record relates;
(b) any peace officer
(i) for the purpose of investigating any offence that the person is suspected on reasonable grounds of having committed, or in respect of which the person has been arrested or charged, or
(ii) for any purpose related to the administration of the case to which the record relates;
(c) any member of a department or agency of a government in Canada, or any agent thereof, that is
(i) engaged in the administration of alternative measures in respect of the person, or
(ii) preparing a report in respect of the person pursuant to this Act; or
(d) any other person who is deemed, or any person within a class of persons that is deemed, by a judge of a court to have a valid interest in the record, to the extent directed by the judge, if the judge is satisfied that the disclosure is
(i) desirable in the public interest for research or statistical purposes, or
(ii) desirable in the interest of the proper administration of justice.
Subsequent disclosure

(2) Where a record is made available for inspection to any person under subparagraph (1)(d)(i), that person may subsequently disclose information contained in the record, but may not disclose the information in any form that would reasonably be expected to identify the person to whom it relates.

Information, copies

(3) Any person to whom a record is authorized to be made available under this section may be given any information contained in the record and may be given a copy of any part of the record.

Evidence

(4) Nothing in this section authorizes the introduction into evidence of any part of a record that would not otherwise be admissible in evidence.

Idem

(5) A record kept pursuant to section 717.2 [alternate measures – police records] or 717.3 [alternate measures – government and private records] may not be introduced into evidence, except for the purposes set out in paragraph 721(3)(c), more than two years after the end of the period for which the person agreed to participate in the alternative measures.
1995, c. 22, s. 6.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 714(1), (2), (3), (4), and (5)


Only the province of Manitoba has enacted law relating to Restorative Justice.[1]

  1. Restorative Justice Act, CCSM c R119.6

CDSA

PART I.‍1 
Evidence-based Diversion Measures
Principles
Declaration of principles

10.‍1 The following principles apply in this Part:

(a) problematic substance use should be addressed primarily as a health and social issue;
(b) interventions should be founded on evidence-based best practices and should aim to protect the health, dignity and human rights of individuals who use drugs and to reduce harm to those individuals, their families and their communities;
(c) criminal sanctions imposed in respect of the possession of drugs for personal use can increase the stigma associated with drug use and are not consistent with established public health evidence;
(d) interventions should address the root causes of problematic substance use, including by encouraging measures such as education, treatment, aftercare, rehabilitation and social reintegration; and
(e) judicial resources are more appropriately used in relation to offences that pose a risk to public safety.
Warnings and Referrals
Warnings and referrals

10.‍2 (1) A peace officer shall, instead of laying an information against an individual alleged to have committed an offence under subsection 4(1), consider whether it would be preferable, having regard to the principles set out in section 10.‍1, to take no further action, to warn the individual or, with the consent of the individual, to refer the individual to a program or to an agency or other service provider in the community that may assist the individual.

Subsequent charges not invalidated

(2) The failure of a peace officer to consider the options set out in subsection (1) does not invalidate any subsequent charges laid against the individual for the offence.

Prosecution — limits

10.‍3 A prosecution may be commenced or continued against an individual alleged to have committed an offence under subsection 4(1) only if, having regard to the principles set out in section 10.‍1, the prosecutor is of the opinion that the use of a warning or referral under section 10.‍2, or of alternative measures as defined in section 716 of the Criminal Code, is not appropriate, and a prosecution is appropriate in the circumstances.

Record of warning or referral

10.‍4 (1) The police force to which a peace officer referred to in section 10.‍2 belongs shall keep a record of any warning given or referral made under subsection 10.‍2(1), including the identity of the individual warned or referred.

Access to information

(2) Any information contained in the record kept pursuant to subsection (1) may be made available to:

(a) any judge or court for any purpose relating to proceedings with respect to the offence to which the record relates;
(b) any peace officer for any purpose related to the administration of the case to which the record relates; or
(c) any member of a department or agency of a government in Canada, or any agent of that department or agency, that is
(i) engaged in the administration of alternative measures, within the meaning of section 716 of the Criminal Code, in respect of that person, or
(ii) preparing a report for the purpose of informing proceedings with respect to the offence to which the record relates.
Access to information — alternative measures

(3) Information contained in the record, other than the identity of the person, may be made available to any member of a department or agency of a government in Canada, or any agent of the department or agency, that is engaged in assessing and monitoring the use of alternative measures and assessing their effectiveness, including for research or statistical purposes.

Evidence of warning or referral not admissible

10.‍5 Evidence that an individual has received a warning or referral mentioned in subsection 10.‍2(1), evidence that a peace officer has taken no further action in respect of an offence under subsection 4(1) and evidence of the offence are inadmissible for the purpose of proving prior offending behaviour in any proceedings before a court in respect of the individual.

Conservation of record — conviction

10.‍6 (1) Any record of a conviction that occurs before the day on which this section comes into force in respect of an offence under subsection 4(1) must be kept separate and apart from other records of convictions within two years after that day.

Conservation of record — deeming

(2) A conviction that occurs after this section comes into force in respect of an offence under subsection 4(1) is kept separate and apart from other records of convictions two years after the conviction or two years after the expiry of any sentence imposed for the offence, whichever is later, and the person convicted of the offence is deemed never to have been convicted of that offence.

Regulations

(3) The Governor in Council may make regulations respecting the use, removal or destruction of records kept separate and apart referred to in subsections (1) and (2).

Exception for Service Providers
Exception

10.‍7 No social worker, medical professional or other service provider in the community commits an offence under subsection 4(1) if, in the course of their duties, they come into possession of a substance included in Schedule I, II or III and they intend to, within a reasonable period, lawfully dispose of it.

2022, c. 15.

See Also