DATE: May 20, 2008
SUBJECT: ADULT ALTERNATIVE MEASURES PROGRAM
The use of this program must comply with the statutory requirements set out in section 717 of the Criminal Code. In particular, the measures may be used only if not inconsistent with the protection of society. The person who considers whether to use alternative measures must be satisfied that they are appropriate having regard to the interests of society, the needs of the alleged offender, and the interests of the victim. The alleged offender must fully and freely consent to participate in the program after being informed of the alternative measures and before consenting advised of the right to be represented by counsel. Alternative measures may not be used if the person expresses the wish to have any charge dealt with by the court. The person seeking entry to the program must accept responsibility for the act or omission that forms the basis of the offence. If the person denies participation or involvement in the commission of the offence, then the alternative measures program may not be used. There must, in the opinion of the Attorney General or the Agent of the Attorney General, be sufficient evidence to proceed with the prosecution. The prosecution must not in any way be barred at law.
The following offences may be diverted from the formal court process to the Alberta Adult Alternative Measures Program:
- All summary conviction Criminal Code offences excluding those relating to family violence or failing to comply with a court order.
- The following Criminal Code hybrid offences where the Crown Prosecutor would have proceeded by way of summary conviction:
- assault (only simple assault in a non-domestic situation);
- theft not exceeding $5000;
- possession of stolen property not exceeding $5000;
- obtaining by a false pretence not exceeding $5000;
- fraud not exceeding $5000;
- personation with intent;
- mischief that is property related; and
- false fire alarm
- In exceptional cases, the police may, after considering the individual circumstances of the commission of the offence, and concluding that a minor criminal offence has occurred for which the Crown would have proceeded by way of summary conviction, recommend alternative measures for the following Criminal Code hybrid offences:
- forcible entry
- obstructing peace officer
- failure to guard hole
- credit card theft, etc
- credit card forgery, etc
- computer service theft, etc.
- computer hacking device
- being unlawfully in a dwelling house
- In exceptional cases, the police may, after considering the individual circumstances of the commission of the offence and concluding that a minor criminal offence has occurred, recommend alternative measures for the following Criminal Code indictable offences:
- theft over $5000
- possession of property over $5000 obtained by crime
- theft from mail
- false pretence, property over $5000
- obtain credit, etc by false pretence
- obtain execution of security by fraud
- possession of counterfeit money
- uttering, etc. counterfeit money
- In exceptional cases, the police may, after considering the individual circumstances of the commission of the offence and concluding that a minor criminal offence has occurred, recommend alternative measures for offences under the Criminal Code involving the registration or licensing of non-restricted or non-prohibited firearms.
Please note that matters under the Firearms Act are under the jurisdiction of Justice Canada not Alberta Justice.
Under the Alberta Adult Alternative Measures Program, a series of offences that occur out of the same incident, e.g., a series of thefts on the same day is to be treated as being one offence for the purpose of determining program eligibility. Offences involving an attempt or being an accessory qualify if the substantive offence qualifies.
All first time adult offenders who are alleged to have committed any of the above eligible offences may be diverted by way of the Alberta Adult Alternative Measures Program from the traditional court system unless there is sufficient reason why program participation is inappropriate, or the offender has received a young offender custody disposition within the preceding 24 months.
All second time adult offenders who are alleged to have committed any of the above eligible offences may be diverted by way of the Alberta Adult Alternative Measures Program from the traditional court system if at least two years have elapsed since a previous finding of guilt or participation in the program, unless there is sufficient reason why program participation is inappropriate.
Particular attention shall be paid to the cases of Aboriginal offenders to ensure that no systemic barriers preclude Aboriginal offender program referrals. The individual circumstances of an Aboriginal offender should be considered in the context of the distinct situation of Aboriginal persons in Canada.
POLICE NOTIFICATION TO THE CROWN
It is anticipated that the majority of diversions from the formal justice system will take place as the result of the police referring the matter to the Crown via the notification form with a recommendation that the matter be dealt with by using alternative measures. In some cases, even though the Police wish to recommend alternative measures as an appropriate way to deal with the offence, they cannot do so because the statutory criteria has not been met e.g. no admission of responsibility or no consent to use the program from the offender. These circumstances sometimes change after the charge has been laid, particularly where defence counsel has had an opportunity to review the case.
In cases where an alleged eligible offence has been committed police may lay charges, refer the accused to the Alberta Adult Alternative Measures Program by sending a request to the local Chief Crown Prosecutor’s office, or exercise their traditional discretion not to charge. In cases where charges are laid for offences under sections 1 or 2 of the offence eligibility criteria or where the police make a recommendation for alternative measures, police should complete Section A of the notification form (J 2420) and forward it to the Crown, along with the occurrence report and a list of previous findings of guilt, and prior program involvement, in all cases where the adult offender meets the program eligibility.
If the police believe the offender is not a suitable candidate for the Adult Alternative Measures Program they must indicate the reasons on the notification form. This does not apply to police consideration of exceptional cases under sections 3, 4, and 5 of the offence criteria. In such a situation if the police do not believe exceptional circumstances exist they need not send a notification form to the Crown. This is necessary to assist the Crown in reviewing all adult files that meet the eligibility criteria, whether or not there is a police recommendation to divert. Police may, of course, still lay charges notwithstanding that the matter has been referred to the Crown, in cases where the police are not recommending alternative measures. The police will be informed of the Crown decision with respect to diversion in accordance with the method determined agreed to by the local Crown office and the local police. As well, should the adult offender fail to satisfactorily complete the alternative measures program, the Crown may request the police to proceed with the laying of charges.
Corrections Division will produce and distribute the notification form, which is used by Corrections, the Crown, and the police.
The Adult Alternative Measures Program is not intended to replace the right of peace officers to exercise their discretion whether to lay a charge when they have sufficient evidence of the commission of an offence. Police in some minor cases may be content to end the matter with a warning and not refer the matter to the Crown for alternative measures consideration. The community is long familiar with this type of action. Participation in the Adult Alternative Measures Program is not always the answer.
THE ROLE OF THE CROWN
Approval of entry to the program is at the discretion of the Crown Prosecutor who reviews the case. The Crown is, in essence, the gatekeeper of the program. It is expected that the majority of decisions to divert will originate with a police referral.
If a specific case within sections 1 and 2 of the offence criteria is brought to the Crown’s attention, internally or by defence counsel, the court, or the police, the Crown will review the case to decide whether or not to divert to the program. If a specific case within sections 3, 4, and 5 of the offence criteria is brought to the Crown's attention by the police, the Crown will review the case to decide whether or not to divert to the program.
A prosecutor who conducts such a review will note his decision as to diversion on the file. The Crown should consider consulting with the police in cases where the police have not recommended the use of the program and the Crown is considering using the program.
If a charge has already been laid and the Crown decides to divert by the program, the Crown will request an adjournment of the matter to a date certain, which is at least four months later. Unless Corrections Division has notified the Crown on or before that date, that the program has not been completed successfully, the Crown may assume that the program has been completed successfully and request the charge be withdrawn.
A Chief Crown Prosecutor or an Assistant Chief Crown Prosecutor designated by the Chief Crown Prosecutor may, where not inconsistent with the protection of society, in exceptional circumstances, authorize entry into the program where the Offence Criteria or Offender Criteria have not been met. However, under no circumstances shall cases involving serious violence be referred to the program.
In assessing whether exceptional circumstances exist that might make court proceedings inappropriate, account should be taken of the individual circumstances of an Aboriginal offender in the context of the distinct situation of Aboriginal persons in Canada.
In assessing whether exceptional circumstances exist that might make court proceedings inappropriate, account should be taken of mental illness or disability of the offender.
This exception circumstances provision need not be used for exceptional cases referred by the police without a charge being laid under sections 3-5 of the Offence Criteria but can be used for these offences after a charge has been laid.
CROWN RECORD KEEPING
Primary record keeping for alternative measures will be done on JOIN. The Crown is responsible for entering the approved program referrals. They will not enter those cases which are rejected. The alternative measures function will be used to create a “d” type case. The basic case information, accused and charge, are recorded. A final disposition of “referral to Correctional Services” will be used. This will be done at the time of initial data entry.
Offenders, who do not successfully complete their Alternative Measures Agreement and are referred back to the Crown, will be identified as “terminated unsuccessfully”. In such a situation, the originally entered alternative measures case will be used to update the system with a “Breached Proceeding Code” with respect to the Crown decision on the matter. This will be “No Further Action Taken” or “Police Proceed With Charges”.
Please note the following:
- Function to provide the data entry and maintenance of an Adult Alternative Measures JOIN case. It is used to capture the basic case, accused, and charge information associated with an accepted Alternative Measures Program referral. It is also used to maintain the Adult Alternative Measures disposition (such as “Corrections Program”) and the breach details (such as “No Further Action” or “Charge Accused”).
- JOIN general case, event, and disposition inquiries include Adult Alternative Measures case details.
- JOIN system control functions used to identify applicable charges to Adult Alternative Measures, applicable JOIN proceedings, and to allow/restrict access to Adult Alternative Measures cases.
- JOIN documents: Tracking Sheet, Case Report, and Accused Disposition report include the details of Adult Alternative Measures cases.
The Correctional Services Division, through the Community Corrections and Release Programs Branch, is solely responsible for the delivery of the Alberta Adult Alternative Measures Program, negotiating the Adult Alternative Measures Agreement, and ensuring compliance by the offender.
The goals of community awareness and involvement, victim restitution and involvement, rehabilitation, and protection of the public are an integral part of the program.
An intake interview will advise the offender of the program details. An Adult Alternative Measures Agreement will be negotiated with the offender with a view to the offender’s ability to carry out its terms. The conditions of this Agreement will not be more onerous than those which it is expected would have been imposed by the court. Every effort shall be made to ensure that the victim receives full restitution. The terms of Agreement shall consider any attendance in school or other program, and the employment status of the offender.
The Adult Alternative Measures Agreement may contain a number of conditions appropriate to the situation. These may include, but are not limited, to the following: return of property or restitution to the victim, an apology to the victim either personally or written, community service work, donation to a registered charity, personal service to the victim, take counselling, participation in a victim/offender reconciliation program (VORP), to be under the supervision of a probation officer, to participate in Aboriginal cultural/spiritual activities, etc. In order not to make the Agreement overly complex, there should not be more than three conditions in addition to any supervision by a probation officer or VORP requirements.
In the case of Adult Alternative Measures being entered into after a charge has been laid, Corrections Division will notify the appropriate Chief Crown Prosecutor’s office as to whether or not alternative measures has successfully been completed so that the Crown may take appropriate action with respect to the charge.
Corrections Division will record Adult Alternative Measures Program involvement on the Alberta Community Offender Management system (ACOM).