What is a diversion?
Diversions are programs that provide an alternative to prosecution. These programs are offered in courthouses throughout different parts of Ontario and can be either formal and structured or informal and simple. Diversions can take the form of community service, a program tailored to the individual’s specific needs or other types of community work.
Who decides if you are eligible for diversion?
The only party who decides if the accused is eligible for diversion, is the Crown. However, if the Crown has not offered diversion, the defence counsel can try to convince the Crown that the accused is eligible. This can occur during the Crown pre-trial or judicial pre-trial. There are several factors the Crown may take into consideration when assessing if an accused qualifies for diversion.
- Whether the person has a criminal record or past dealings with police;
- Cooperation with police upon arrest;
- The seriousness of the offence (amount of money lost, alleged harm done, etc.);
- The cost of prosecuting the case in comparison to the seriousness of the offence;
- The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
- The wishes of the alleged victim.
Accept or not accept the diversion
If the accused does not wish to accept the diversion, they should contact a lawyer immediately. However, once a person has accepted their position in the diversion program, they must accept responsibility for their wrong as well. This is an informal process and some of the questions asked may be, “why did you do this”, “do you understand this is wrong”, “have you learned your lesson”, etc.
Once the terms of the diversion program are complete, the accused will have to prove they completed the work and ensure the court sees it. Once this is established, the charges may be withdrawn by the Crown which means the accused is legally innocent in the eyes of the law. They are withdrawn, the accused does not have to go to court anymore about the charge, there is no criminal record, and they cannot prosecute you again later for the same charge.