Youth Diversion

YOUTH DIVERSION

EFFECTIVE DATE: March 20, 2003

REVIEW DATE: July 14, 2015 added diversion regarding family violence and amended diversion for drug offences.

COMMENTS: This Practice Protocol provides direction and sets the parameters for the referral of young persons to the Extrajudicial Sanctions Program. It replaces the document: Youth Criminal Justice Act Extrajudicial Sanctions Program dated March 20, 2003.

CROSS REFERENCE: Decision to Prosecute Guideline, Youth Records Disclosure Protocol (coming soon)

BACKGROUND

The Youth Criminal Justice Act (YCJA) Extrajudicial Sanctions Program was authorized by the Honourable David G. Hancock Q.C. Minister of Justice and Attorney General pursuant to section 10(2) of the Youth Criminal Justice Act after consultation with the Honourable Heather Forsyth, Solicitor General. It came into effect on April 1, 2003.1

Section 10 of the YCJA provides for the use of extrajudicial sanctions if:

  1. The measures are part of a program authorized by the Attorney General of a province;
  2. The measures are appropriate having regard to the needs of the young person and the interests of society;
  3. The young person, having been informed of the Extrajudicial Sanctions Program, fully and freely consents to be subject to it;
  4. The young person, before consenting to be subject to the extrajudicial sanction, has been advised of the right to be represented by counsel and has been given a reasonable opportunity to consult with counsel;
  5. The young person accepts responsibility for the alleged offence;
  6. There is sufficient evidence to proceed with the prosecution of the offence; and
  7. The prosecution of the offence is not in any way barred at law.

In addition, both the parents of a young person and the victim of the offence have a right to be notified of the use of an extrajudicial sanction. Section 11 of the YCJA provides that if a young person is dealt with by an extrajudicial sanction, the person who administers the program under which the sanction is used shall inform a parent of the young person of the sanction. Section 12 of the YCJA provides that if a young person is dealt with by an extrajudicial sanction, a police officer, the Attorney General, the provincial director or any organization established by a province to provide assistance to victims shall, on request, inform the victim of the identity of the young person and how the offence has been dealt with.

Extrajudicial Measures

It is recognized that the police do not always lay a charge when they have sufficient evidence to do so. In some cases where the offence is minor in nature and taking the total circumstance into consideration, the police officer may decide to exercise their discretion not to charge. This police discretion is a traditional part of our criminal law process and is recognized by the community as being valid and essential.

The Extrajudicial Sanctions Program is not meant to replace the existing use of police discretion. Rather, it is designed to divert young persons from the formal justice process, based on an established set of criteria. Section 10(1) of the YCJA indicates that an extrajudicial sanction may only be used instead of a police extrajudicial measure, such as taking no action, giving a warning, or referral to a program or agency in the community that may assist the young person not to commit offences, because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances.

The police may use extrajudicial measures and directly divert a young person to a youth justice committee without Crown prosecutor approval. It must be understood, however, that should the young person fail to comply with the agreement negotiated with the youth justice committee, no action will be taken by the Crown prosecutor in respect of the alleged offence.

PROTOCOL

The police, unless police extrajudicial measures are used, will refer all cases of first and second time offenders who are alleged to have committed any of the eligible offences (and any other young persons they consider to be appropriate because of exceptional circumstances) to the local Chief Crown Prosecutor using the notification form (J2420). The Chief Crown Prosecutor (or designate) will review and refer all cases to the Extrajudicial Sanctions Program (Program) unless Program participation is inappropriate. Particular attention shall be paid to the cases of Aboriginal offenders to ensure that no systemic barriers preclude referral to the Program.

Eligibility Criteria

For the purposes of the Program, a series of offences resulting from the same incident shall be treated as one offence.

In addition, the provisions of the YCJA pertaining to disclosure of records apply in determining program eligibility. Therefore, a young person may become eligible to be treated as a first or second offender, notwithstanding any previous extrajudicial sanctions or findings of guilt if the applicable period of access to the record has expired. (See Youth Record Disclosure Protocol ~ coming soon)

A young person shall be considered to be a second offender if they have previously been found guilty of a Criminal Code or Controlled Drugs and Substances Act offence, or if previously enrolled in the Extrajudicial Sanctions Program. A previous use of Young Offender Act alternative measures is deemed to be a prior extrajudicial sanction.

The issuance of a caution letter by the prosecution is deemed to be an extrajudicial sanction for the purpose of Program eligibility.

While it is recognized that family support is important, as is the remorse demonstrated by a young person in relation to the commission of an offence, neither of these factors are viewed as primary considerations such that their absence would make a young person ineligible for Extrajudicial Sanctions Program participation.

Eligible Offences

Cases involving serious violence or the threat of serious violence cannot be referred to the Program under any circumstances or be the subject of a caution letter.

The following is a listing of offences that are eligible for the Program with some noted exceptions:

  1. Section 78 of the Public Health Act (glue and solvent sniffing);
  2. Trespass to Premises Act offences;
  3. Petty Trespass Act offences;
  4. School Act offences;
  5. Gaming and Liquor Act offences;
  6. Controlled Drugs and Substances Act offences, except in the following circumstances;
    1. Using another person more than two years younger than the young person alleged to have committed the offence to commit or assist in the commission of a drug offence;
    2. Trafficking or possession for the purpose of trafficking in Schedule I drugs, such as cocaine, heroin, ecstasy or methamphetamine (an exception may arise where the young person shares a very small quantity of the substance with a peer for little or no consideration);
    3. The conduct demonstrated sophisticated planning (for example, the offence was part of an ongoing criminal enterprise); or
    4. Where weapons were involved.
  7. All Criminal Code offences are eligible for the Program except:
    1. Break and enter of a dwelling house;
    2. Perjury or contradictory evidence;
    3. Driving related offences;
  8. Criminal Code offences involving violence or the threat of violence are not eligible for the Program with the following exceptions:
    1. Simple assault;
    2. Threats where there is no reasonable likelihood to believe that the youth presents a danger to others;
  9. Criminal Code offences in a family situation are eligible for the Program subject to the existence of a Youth Domestic Diversion Program approved by the Assistant Deputy Minister and provided the offence does not involve serious violence or any violence against an intimate partner or a child where the accused is parent, guardian, or acting in loco parentis.

PRACTICE

Police

Where police decide that a police extrajudicial measure is inappropriate, the case will be referred to the local Chief Crown Prosecutor or a Crown prosecutor designated by the local Chief Crown Prosecutor. Police will complete Section A of the notification form and forward it, along with the occurrence report and a list of previous findings of guilt, to the Crown Office. A check on JOIN by the police may assist in completing the form. If the police believe the young person is not a suitable candidate for police extrajudicial measures, they will indicate this on the notification form.

Police should not advise the youth that the prosecutor will use a caution letter if restitution is made.

Crown Prosecutor

A prosecutor shall review all Program referrals received and take one of the following actions:

  1. Decline to divert the young person and request that a charge(s) be laid where the prosecutor believes that Program participation is inappropriate;
  2. Divert the young person by way of the Extrajudicial Sanctions Program by completing Section B of the notification form (J2420) and forwarding it, along with the police occurrence report and a list of the previous findings of guilt (if available), to the Correctional Services Division, Alberta Solicitor General; or
  3. Issue a caution letter.

The prosecutor shall also review all files where a charge has been laid to determine suitability for the Extrajudicial Sanctions Program and where appropriate divert the young person from the court system by a Program referral or issue a caution letter.

Caution Letters

Pursuant to Section 8 of the YCJA, a prosecutor may divert first time young offenders from the court system directly by issuing a "caution letter" to the young person with a separate letter to the young person's parent/guardian or other responsible adult if the proposed charge is a summary conviction offence (or a hybrid offence for which the prosecutor would have proceeded by way of summary conviction). As a general rule, caution letters will be issued by the prosecutor for first time young offenders charged with minor property offences. The caution letters are to be prepared on the letterhead of the local Crown Prosecutors' Office.

The caution letter serves the purpose of formally notifying the young person and his/her parent(s) that the offence for which he/she was accused was criminal in nature and, in future, the young person may be dealt with differently. A caution letter will not be used by the prosecutor when a victim has suffered damages and full restitution has not been made by the young person.

For the purpose of future referrals to the Extrajudicial Sanctions Program, a returned caution letter is deemed to have been issued, provided no other action was taken.

Exceptional Circumstances

A Crown prosecutor may decide to allow entry to the Program in exceptional circumstances. An exceptional circumstances diversion must have the approval of the Chief Crown Prosecutor or an Assistant Chief Crown Prosecutor that has been so designated by the Chief Crown Prosecutor to make such decisions.

Cases involving serious violence or the threat of serious violence cannot be referred to the Program under any circumstances or be the subject of a caution letter.

Corrections

The Extrajudicial Sanctions Program is administered by the Correctional Services Division of the Department of Justice and Solicitor General. The Correctional Services Division may administer the Program directly or refer the cases received from the prosecution to a formally designated youth justice committee in those areas where a committee has chosen to administer the Extrajudicial Sanctions Program. In either case, the young person shall enter into an Extrajudicial Sanctions Program Agreement.

In the event that a young person is found not to meet the criteria for the Program, fails to enter into an Extrajudicial Sanctions Program Agreement, or fails to comply with the terms of the Agreement, the Correctional Services Division will notify the prosecutor by completing Section C of the notification form, briefly describing the circumstances; and returning the "Crown counsel" and "Crown notification to police" copies of the notification form, along with the police occurrence report, to the Crown prosecutor.

The Crown prosecutor will review the case for potential prosecution and complete Section C of the notification form; and if requesting that the police proceed with charge(s), forward the "Crown notification to police" copy of the notification form, along with the police occurrence report to the investigating police agency.

Extrajudicial Sanctions Program Agreement

The maximum Extrajudicial Sanctions Program Agreement length is three months. It is not the intent of the Extrajudicial Sanctions Program to impose more onerous conditions than might have been ordered for the same matter in youth court, therefore sanctions should be negotiated bearing in mind the circumstances of the youth such as age, full-time attendance in school or other day programs, and the time available in which to comply with the agreement.

The Extrajudicial Sanctions Program Agreement will consist of the following conditions:

  1. To be under the supervision of a probation officer or other service provider as specified by the Correctional Services Division, and reporting as directed by the probation officer or service provider until the conditions of the Extrajudicial Sanctions Program Agreement are satisfactorily completed;
  2. Where a victim is available and freely consents, participation in a victim/offender reconciliation program as negotiated through an alternative measures agreement; and
  3. A combination of no more than three other conditions listed below:
    1. Personal or written apology to victim(s);
    2. Personal service to victim(s);
    3. Community service to a non-profit community or government agency;
    4. Donation to a registered charity;
    5. Participation in Aboriginal cultural/spiritual activities;
    6. Attendance and participation in an available community counselling or intervention program such as AADAC, Alberta Mental Health Services, Family and Community Support Services, etc. (Counselling will not occur on a fee-for-service basis unless alternative funding can be obtained);
    7. Complete an essay or poster; and
    8. Restitution/return of property to victim(s): every effort should be made to ensure that the victim receives full restitution in addition to any other sanctions that may be imposed, having regard to the ability of the young person to pay.

1 M.O. 9/2003