A number of matters can or must be dealt with prior to the start of prosecution. First, in some cases an offence is not dealt with by way of prosecution at all, but rather through some alternative. Next, assuming that a prosecution is to occur, some administrative and other matters can be dealt with before the trial begins, either through a pre-trial motion or a pre-trial conference. Finally, in cases that will be tried by a jury, that jury must be selected. All of these issues will be dealt with in this chapter.
In an informal sense, there has long existed an alternative to prosecution in Canada through the exercise of discretion by police in not laying charges in the first place, or by Crown prosecutors in not continuing them.1Only relatively recently has that discretion been more formalized in a system of alternative measures authorized by statute.
Statutory alternative measures to prosecution began in 1985 with the Young Offenders Act,2 though under that Act they were available only to young persons. Subsequently in 1995, the provisions of section 4 of the YOA were adopted into the Criminal Code, thereby creating the potential use of alternative measures for adults as well. The essential theory behind these schemes is that, in certain cases, the interests of society might be adequately protected through measures that are less intrusive to the person alleged to have committed an offence than prosecution. If the person fails to comply with the requirements of the alternative measures program, however, criminal charges can still be laid.
Section 717 of the Criminal Code does not require that an alternative measures program exist, but it authorizes the attorney general of a province to create such a program. The use of these measures is subject to various conditions, in particular the general directive that the use of such measures cannot be inconsistent with the protection of society, and that the person considering their use is satisfied that they are appropriate given "the interests of society and of the victim."3Other provisions are aimed at protecting the interests of the person who would otherwise be the "accused." In large part, these provisions are aimed at ensuring that alternative measures are only used in cases that would otherwise have proceeded to prosecution, rather than being used in cases that simply would not have occupied the justice system at all. That is, alternative measures are intended to be a way of diverting some cases out of the criminal justice system, not a way of expanding its scope.
Consistent with this approach, alternative measures cannot be used unless the prosecutor believes that there would be sufficient evidence to proceed with a prosecution, and that the prosecution is not barred at law in any way.4The person involved must have been advised of the right to counsel, must accept responsibility for the act or omission constituting the offence, and must fully and freely consent to participate.5