When a young person enters the criminal justice system, the fallout can be felt for a long time. A criminal charge can cause a great deal of strain for both the young person and family, impacting education, employment prospects, relationships, and future aspirations. However, not all youth offences require the full force of the courts.
Youth diversion is a viable alternative for some youth. The use of extrajudicial measures within Canada’s youth justice system is designed to address the behaviour of accused youth in a prompt way, while promoting responsibility, repairing the harm done, and engaging families and communities as needed.
Department of Justice Canada
What Is Youth Diversion?
Youth diversion(ing) refers to procedures whereby certain young offenders may be dealt with away from the normal court proceedings. It recognizes that young people are still developing, and that there can be ‘consequences’ without a fully fledged criminal trial.
The Youth Criminal Justice Act (YCJA) explicitly recognizes that extrajudicial measures may be an effective and suitable response to youth crime. The measures aim to secure an effective response to youth crime, while encouraging young people to accept responsibility and make reparation for any harm caused to victims and the community.
Laws and Regulations Canada
Diversion does not involve a young person escaping the offence. Instead, the young person may be required to fulfill certain conditions or engage in programs which are designed to deal with the behaviour and its effects.
How Does Youth Diversion Work?
You may use the following process regardless of the particular offence, or program that is available in the jurisdiction, or the history of the young person.
Before starting formal judicial proceedings, police officers must determine if the young person can be dealt with by a procedure, by a warning, a caution or a referral to a community program.
Department of Justice Canada
In some instances, where appropriate, a young person might be responded to through an informal intervention or a more formal diversion programme.
The aim is generally to provide a suitable sanction and not involve the young person unnecessarily in protracted court proceedings.
Extrajudicial Measures (EJM)
Extrajudicial Measures (EJM) are one of the primary types of diversion under the YCJA. They include warnings, cautions, referrals to community programs, and other appropriate action.
The law states that extrajudicial measures should be proportionate to the gravity of the offence and should respect the rights and freedoms of the young person. They should also promote responsibility and, when necessary, restore the damage done to the victim and the community.
Department of Justice Canada
For a young individual who has been accused of a less serious crime, an EJM could offer the chance to settle the matter without proceedings being taken to the full court.
Extrajudicial Sanctions (EJS)
Extrajudicial Sanctions (EJS) represent the more formalised end of the diversion spectrum. They can be pursued if a warning, caution or referral would not be appropriate due to the gravity of the offence, prior offences, or other aggravating factors.
Laws and Regulations Canada
There are certain prerequisites to an EJS: the offender must have given free consent, the offender must have been advised of his rights to counsel and given ample opportunity to inquire of counsel, and the offender must have accepted responsibility for the act or omission constituting the elements of the alleged offence.
Laws and Regulations Canada
The conditions will depend on the particular situation and the program. They might include requirements such as activities to promote responsibility, minimize further harm, or resolve issues.
Who May Be Eligible for Youth Diversion?
Not automatically eligible. The authorities will have regard to the nature of the alleged offence and the circumstances of the young person.
Factors can include:
- The gravity and the context in which the offence is alleged to have been committed
- The young person’s age
- Any previous findings of guilt
- Previous involvement with diversion programs
- The accused person’s involvement in the putative offence
- Whether there are outstanding charges
- The attitude of the young person to take part.
- The appropriateness of a diversion response for holding people accountable
The YCJA provides that extrajudicial measures should normally be taken in cases of non-violent offences where the young person has not previously been convicted, though it does not exclude their use where this has happened.
Laws and Regulations Canada
Additionally, in Ontario, the circumstances of the offence and the young person are taken into account by prosecutors to decide if an extrajudicial sanction is suitable.
What Are the Benefits of Youth Diversion?
The main benefit of youth diversion programs is having the chance to deal with the purported behaviour outside of the normal court process.
Potential benefits can include:
- Encouraging accountability
- Reducing unnecessary court involvement
- Providing opportunities to repair harm
- Assisting youth with access to community resources
- Including parents and families when suitable
- Allowing young people to proceed with their plans after fulfilling the necessary criteria.
The YCJA places particular focus on the goal of extrajudicial measures to be timely intervention, accountability, reparation for harm caused, and participation of community and family.
Laws and Regulations Canada
Does Diversion Mean There Is No Criminal Record?
This is a crucial question for youth and parents. As diversions and youth records are regulated by particular articles of the YCJA, the result can vary by the particular measure employed, the circumstances of the case, and the success of the youth in fulfilling the conditions.
We mustn’t automatically assume that all diversion options have the same impact on a young person’s record.
A lawyer will be able to advise on what a given diversion option might entail in the circumstances of a specific case, and what procedures might be in place to safeguard the young person’s interests.
What Happens If Diversion Conditions Are Not Completed?
Achieving the required conditions is significant. When an extrajudicial sanction is imposed, and an information is laid for the same offence, the YCJA mandates the youth justice court to throw out the information if, after considering the circumstances, the court is convinced that the young person has fully complied with the terms and conditions of the sanction. The youth justice court is also permitted to dismiss an information in appropriate cases of partial compliance.
Laws and Regulations Canada
This is why it is crucial for a young person to be aware of precisely what an arrangement of diversion involves before they consent to one.
Why Legal Advice Can Matter
While a young person may be offered diversion, this does not mean the young person should agree to the diversion without understanding the nature and consequences of the diversion. Specific to an extrajudicial sanction, the young person must agree that they committed the act/omission which is under investigation.
Laws and Regulations Canada
Legal advice can provide guidance to a young person and their family about the nature of the allegation, the range of options, what the proposed conditions are, and the possible impact of agreeing or not agreeing to a given resolution.
Final Thoughts
For selected offenders, youth diversion offers a significant alternative to the criminal justice process. In contrast to adversarial justice, youth justice introduces a greater focus on accountability, reintegration, remedial outcomes and self-sufficiency.
Nevertheless, the eligibility and impact will vary according to the specific circumstances of the case. A young person and their family should consider the options available prior to making an important decision as to how the allegation should be dealt with.
If a young person is facing criminal allegations, getting legal advice early can help the family understand whether youth diversion programs, an extrajudicial measure, an extrajudicial sanction, or another legal option may be appropriate.
