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What is Canada’s Restorative Justice Approach, and How is it Responsible for Diversion?

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If you’re facing criminal charges in an Ontario court, and the Crown offers you “diversion,” you might need to thank Canada’s restorative justice approach.

Wait a minute, you think. What does diversion mean, and what is Canada’s restorative justice approach?

With success securing diversion for some of their Greater Toronto Area clients, the skilled criminal defence lawyers of Mass Tsang can answer those questions. Let’s start with the restorative justice approach, which, among other things, supports diversion as an alternative to holding criminal offenders accountable through means other than a trial and court-ordered punishment.

Canada’s Restorative Justice Approach

Canada’s Department of Justice defines restorative justice as “an approach to justice that seeks to repair harm by providing an opportunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the aftermath of a crime.” As “an approach,” restorative justice is supported by legislation and federal, provincial, and territorial government policies and programs. These policies and programs take many forms, including participation from outside groups involved in victim support, criminal rehabilitation, conflict resolution, victim-offender mediation, and related services.

Development of the restorative justice approach in Canada arose in the 1970s as a confluence of movements, including ones focused on:

  • Prisoners’ rights, less use of incarceration, and improved prison conditions.
  • Victims’ rights, restitution, and acknowledgement of harms done.
  • Implementation of Aboriginal approaches—such as circle sentencing—to address Aboriginal offenders.
  • Victim-offender mediation.

The ideals of restorative justice got a considerable boost with the 1995 passage of Bill C-41, which enacted significant sentencing reforms in the Criminal Code, including ones allowing for alternative sentencing options like diversion. As noted by Section 718 of the bill:

“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  • to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
  • to deter the offender and other persons from committing offences;
  • to separate offenders from society, where necessary;
  • to assist in rehabilitating offenders;
  • to provide reparations for harm done to victims or to the community; and
  • to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.”

All of which fall in line with the ideals of restorative justice.

Distinct from the restorative justice “approach,” a restorative justice “program” represents the ideal in practice. In Ontario, there are 65 distinct restorative justice programs. If you receive a court-ordered diversion to a restorative justice program, you must follow its directives and participate in any program activities. Diversion into a restorative justice program is available to all offenders, whether pre-trial, during trial, as a trial judgment, and during or after incarceration.

The Approach as Codified by Legislation

Three sections of Canada’s Criminal Code and numerous Youth Criminal Justice Act provisions support the restorative justice approach within the criminal justice system. Provisions in the Canadian Victims Bill of Rights and Corrections and Conditional Release Act help support restorative justice services for victims of crime.

We’ve already covered Section 718, which is consistent with the restorative justice approach. Section 717 of the Criminal Code allows courts to use “alternative measures to deal with a person alleged to have committed an offence” if it maintains the protection of society and meets other conditions. Conditional sentences, as allowed by Section 742 of the Code, are also considered supportive of the restorative justice approach.

Among restorative justice-related provisions in the Youth Criminal Justice Act, the Declaration of Principle states that “measures taken against young persons who commit offences should encourage the repair of harm done to victims and the community.” The Act also strongly encourages using “extrajudicial measures” to address youth crime, which aligns with restorative justice goals.

Understanding Diversion and How It Works in Practice

The restorative justice inspired 1995 revisions to the Criminal Code and related changes to the Youth Criminal Justice Act allow courts to use alternative measures to hold criminal suspects accountable for their offences. Pre-trial diversion has emerged as one of the most common alternative measures. Typically only allowed for low-level offences that carry two-year or less prison terms, diversion is only granted if the offender accepts responsibility for the crime. If the offender fully complies with the terms and conditions of the diversion, Section 717 of the Code mandates that the court dismiss the charges.

The Crown decides whether to offer diversion based on the severity of the offence, criminal history, and the cost of prosecuting the charges versus the seriousness of the offence. Along with admitting to the crime and accepting responsibility, an offender is must make amends by taking certain actions or participating in specific programs. These include:

  • Perform community service.
  • Make a charitable donation.
  • Undergo anger management, mental health, or drug/alcohol counselling.
  • Write a letter of apology.
  • Attend a restorative justice program.

In Ontario, the Crown often determines whether you are eligible for diversion prior to your first court appearance but can offer diversion anytime during the court process. Depending on the courtroom, a list of cases that have been screened for diversion might be posted at the courtroom door. Absent public posting, a screening form with your disclosure information should be available at your first hearing. The screening form details the Crown’s intentions with their prosecution and may note that you are eligible for diversion.

If not initially deemed eligible for diversion, you or your criminal defence lawyer can try to negotiate a diversion with prosecutors during the Crown pre-trial meeting. If granted diversion, you’ll meet with a diversion court worker to formalize the terms of your diversion, and your case will be adjourned. Once you have completed the terms of your diversion, you must bring proof of this back to the court before it will stay or withdraw charges.

Secure Diversion with Toronto’s Mass Tsang

If you or a loved one is facing criminal charges in the Greater Toronto Area, Mass Tsang’s criminal defence lawyers have a solid track record of securing positive outcomes — including diversion — for their clients. You can schedule your free consultation by contacting us today.

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