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Who decides whether my case is eligible for diversion?

The Crown has final say on which cases qualify for diversion. This is because diversion is a decision not to prosecute a case, and that is a decision that only the Crown (as the prosecutor) can make. Because it is the Crown’s decision, it is very important to remember that in order to complete diversion, you have to satisfy the Crown that you did what you were supposed to do (e.g. community service, counselling etc.). A judge or justice of the peace does not decide what cases are eligible for diversion.

Usually offences that the Crown considers to be minor will be approved for diversion. Examples of these may be:

  • Theft of a low-cost item from a store (e.g. shoplifting)
  • Minor fraud charges involving a small amount of money (e.g. switching price-tags or not paying transit fare)
  • Mischief (involving minor property damage)
  • Causing a disturbance
  • Possession of small amount of marijuana (intended for personal use)

As well, usually only accused persons who have no prior criminal record are eligible for diversion. If you’ve had prior dealings with the police, even if you were never charged, this may affect the Crown’s decision on whether to offer diversion. However, each case is different and everybody’s circumstances are different, so there are always some cases where the Crown may agree or disagree to offer diversion even if that’s not what is expected.