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Diversion
Diversion

What is diversion?

Diversion programs provide an alternative to prosecution. These programs are offered in courthouses throughout Ontario. Each courthouse has different diversion programs, with different eligibility requirements. Some diversion programs are very formal and structured, such as Mental Health Diversion or Extra Judicial Sanctions offered in Youth Court. Other types of diversion can be very informal and may simply involve doing a small amount of community service or making a donation to a charity.

Despite their differences, what all diversion programs have in common is that they are an alternative to prosecution. The Crown recognizes that not all types of offences need to be dealt with through guilty pleas or trials, and that sometimes helping out in the community can make up for harm caused by an offence.

Generally, diversion involves an accused person doing something outside of court in order to have a charge (or charges) stayed or withdrawn by the Crown.

For example, you could be offered diversion in a case such as:

  • You’ve been charged with “theft under” for taking something of low value from a store without paying for it. This is commonly known as shoplifting. If you don’t have a criminal record and you haven’t been in trouble with the police before, the Crown may offer you diversion by telling you that they will withdraw the charge if you do 20 hours of community service.

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.

How do I know if I’ve been offered diversion on my case?

Sometimes cases are pre-approved for diversion by the Crown, and it may indicate in your disclosure that your case has been pre-approved. In other cases, your lawyer or duty counsel may, after looking at your charges and your disclosure, talk to the Crown (usually in a resolution meeting) about possible diversion.

How do I know if I should take the offer of diversion or not?

You should always speak to your lawyer or duty counsel before you make a decision about diversion. Agreeing to diversion is not the same as pleading guilty to your charge(s), but there can be consequences that you should be aware of before agreeing to diversion. A lawyer or duty counsel will be able to look at your disclosure and help you make an informed decision.

Generally, agreeing to diversion means you are willing to take responsibility for your charge(s) (which is not necessarily the same as accepting that you are guilty of the offence). It also means that you are willing to do some things to finish your case without pleading guilty or having a trial. Remember, each case is different, and your lawyer or duty counsel will advise you on the issue of diversion.

What should I do if I’ve been asked to do community service?

Unless you’re participating in a direct accountability program through your courthouse, it’ll be up to you to arrange and bring proof of your own community service. You should try to arrange to start your community service as soon as possible, because the sooner you’re finished, the sooner your charge(s) will be stayed or withdrawn.

While there are many different types of organizations where you can do community service, the most important thing to remember is that it must be volunteer work. You can’t get paid for the community service or it won’t count. You also can’t do community service at a for-profit business. It must be done at a not-for-profit community organization or a recognized charity.

After you complete your community service hours, it’ll be your responsibility to bring proof of completion to show the Crown. In most cases, this will mean bringing a signed letter, on the organization’s letterhead, indicating how many hours of service you did. Also, it is helpful to bring contact information (i.e., a phone number) of the person at the organization who signed the letter verifying that you completed the hours. This is because the Crown may want to call and confirm the number of hours.

What should I do if I’ve been asked to make a charitable donation?

It is up to you to provide proof of any charitable donation that you make. As with community service, a charitable donation must be made to a non-profit community or charitable organization, not at a business or other type of for-profit organization. Giving money to a private citizen as an act of charity generally won’t qualify as a charitable donation either.

It’s best to get a non-taxable receipt from the organization that you gave the money to. Non-taxable means that you can’t claim the charitable donation as a deduction on your income taxes. The receipt should be signed and indicate the name of the organization that you donated to – usually by having the name and/or logo of the organization right on the receipt. The receipt should also be signed by someone from the organization that can verify that you donated the money. Sometimes, the Crown asks to contact the place that you made the donation to, so it’s also a good idea to have the contact information of the person who can verify your donation.

What should I do if I’ve been asked to take some counselling or a course?

Unless you’re participating in a direct accountability program at the courthouse, it’s up to you to arrange, pay for, and complete counselling if you want to have your charges stayed or withdrawn.

For example, if you are asked to complete six counselling sessions to have a charge withdrawn, you’ll have to find a  counsellor, set up times to take the counselling and pay for the sessions (unless it’s free). Generally, each counselling session is about an hour. Counselling courses often fill up quickly and are booked well in advance, so you should try to arrange your sessions as quickly as possible. Before you sign-up for counselling, you can speak to your lawyer or duty counsel about the counselling you’re interested in to make sure that that it will satisfy the Crown.

It is important to bring proof to show the Crown that you have completed the counselling that they’ve asked you to do. This usually means bringing a signed letter, on the letterhead of the counsellor or organization, showing the number of sessions that you attended, and that you actively participated in the sessions.

How long do I have to make my charitable donation, or finish my community service, or counselling?

Diversion is the Crown’s decision and they can take away an offer of diversion if they feel that you’re taking too long to finish what you’re supposed to do. Even if there are legitimate reasons why it is taking longer than expected, you should try to complete your diversion requirements by your next court date or be prepared to explain why you need more time. Try to be realistic when telling your lawyer, duty counsel or the court how long you’ll need to finish the things you need to do.

What is a direct accountability program?

Some courthouses will have a direct accountability program. While these programs vary from courthouse to courthouse, they usually involve a community justice worker who can assist you with completing diversion. This means that they can set up counselling or find you a place to complete community service etc. They can also verify to the Crown that you have completed what you were supposed to do.

As with diversion in general, there are pros and cons to consider when deciding whether to participate in a direct accountability program. You should always speak to your lawyer or duty counsel before agreeing to participate in such a program.

Generally speaking, direct accountability programs are only available to adults (18 years or older) who have limited or no prior involvement with the adult criminal court system, and have been charged with minor offences.

What’s the difference between having charges withdrawn or stayed?

The decision by the Crown to stay or withdraw charges means they discontinue the prosecution. In both situations, once your charges are withdrawn or stayed by the Crown, you don’t have to go back to court.

However, there is one important difference. Stayed charges can be “brought back to life” within one year of the day they are stayed. While this tends to be rare, you should know that if you’re charged with new offences during the one year period after you’ve had charges stayed, the stayed charges could be brought back and the Crown could prosecute you on those same charges again. If charges are withdrawn, the prosecution of those charges is finished and those same charges can never be brought back.

If I successfully complete diversion, will I have a criminal record?

Generally speaking, completing diversion means that you won’t have a criminal record, either because the charge is withdrawn, or because the one-year period has passed without incident after your charge has been stayed. Avoiding a possible criminal record is often the main reason why accused persons choose to complete diversion. However, because every person’s personal circumstances are different, you should always seek advice from your lawyer or duty counsel about what the outcome of completing diversion may mean for you and your future plans.

What if I change my mind halfway through completing diversion and I decide that I want to have a trial on my charges?

Choosing to complete diversion or not is up to you, and you can always change you mind. Everyone has a right to have a trial on their charges if they wish. Keep in mind that if your case has been delayed for a period of time in order for you to do community service, counselling etc., this time may be seen as your delay. This is important to remember because everyone has a constitutional right to a trial within a reasonable time, and it may be difficult to come back to the court and argue that this right was violated (if you chose to do this) if you want to have a trial. You should speak to your lawyer or duty counsel about this issue if you decide not to complete diversion after you’ve started it.

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