Diversion Negotiation Advocacy: Resolution of Criminal Charges Via Alternative Measures

Question: What are the benefits of pursuing Diversion in criminal defence?

Answer:   Engaging in Diversion, also referred to as "Alternative Measures," under the Criminal Code, R.S.C. 1985, c. C-46, can provide individuals with an opportunity to resolve criminal charges without a lasting conviction.  With the skilled advocacy of David Oake, Barrister (o/a MuskokaCriminal.Law™), clients may avoid the repercussions of a criminal record while demonstrating accountability and taking steps toward rehabilitation.  This process not only supports the needs of victims but also promotes judicial efficiency, making it a valuable pathway for eligible individuals facing criminal allegations.

Resolving Criminal Charges Outside Courtroom Processes

In criminal defence advocacy, one of the most effective resolutions for certain criminal allegations involves the pursuit of Diversion, being a process formally known as "Alternative Measures".  Diversion negotiation requires skilled advocacy to secure an outcome that promotes rehabilitation, accountability, and efficiency, all while avoiding the consequences of harsh penalties and stigma that would come from a criminal conviction found against the accused person.

Diversion refers to programs or processes that allow for the resolution of criminal charges without proceeding to a formal prosecution.  The intent is to provide an alternative route where the accused acknowledges responsibility, makes amends, and avoids the lasting repercussions of a criminal record—provided that public safety is uncompromised.

These programs are usually available to individuals charged with less serious offences, particularly for first-time offenders, and may involve activities such as:

• The performing of community service;
• The providing of restitution to victims;
• The providing of apology letters;
• The involvement in counseling or rehabilitative programming.

Once completed, the prosecution may withdraw the charge or stay the proceedings.  Diversion is fundamentally a discretionary process and without guaranteed availability.  Diversion must be carefully advocated for and negotiated.

The Law

The Criminal Code, R.S.C. 1985, c. C-46, prescribes the potential availability including factors for consideration for an "Alternative Measures" resolution to a criminal charge.  Specifically, the Criminal Code states:

As above, dangerous driving involves operating a vehicle in a manner that endangers public safety.  This can result in severe consequences depending upon whether the charge is pursued as an indictable offence or a summary conviction offence.  Key distinctions exist between how such offences are prosecuted, influencing both the legal process and the potential consequences upon a conviction.

Negotiation

Effective Alternative Measures negotiation advocacy involves much more than simply requesting a referral.  A well-prepared defence advocate:

• Will Identify Eligibility Early:
  By reviewing the nature of the charge, the background of the accused, and prior history (if any) to determine suitability;
• Will Highlight Mitigating Factors:
  By emphasizing factors such as remorse, community ties, employment, lack of criminal history, and willingness to engage in rehabilitative efforts;
• Will Negotiate With the Crown Attorney:
  By presenting a persuasive rationale for why an alternative measures resolution, meaning diversion, is appropriate and consistent with the public interest and legal policy;
• Will Ensure Procedural Fairness:
  By confirming that the client understands the implications, and is aware of relevant rights, responsibilities, and consequences, and consents freely to entering into an alternative measures resolution; and
• Will Support Compliance:
  By assist the client in successfully completing the diversion requirements to ensure full resolution of the charge.

Advantages

Engaging in a Alternative Measures (Diversion) program offers several distinct benefits including:

• The Avoidance of a Criminal Record:
  Whereas successful completion of the alternative measures resolution typically results in the withdrawal or stay of charges;
• The Personal Accountability:
  Whereas such promotes a constructive response to the offence without resorting to punitive measures.
• The Victim Engagement:
  Whereas, in appropriate circumstances, restorative justice processes may address victim needs more directly.
• The Judicial Efficiency:
  Whereas such reduces court backlog and conserves resources for more serious cases.

Conclusion

Diversion under section 717 of the Criminal Code represents a powerful alternative to traditional prosecution. For suitable candidates, it offers a rehabilitative path forward—provided it is pursued with informed legal guidance and persuasive advocacy. Defence counsel play a vital role in assessing eligibility, negotiating terms, and ensuring the client's interests are protected throughout the process.