Diversion and Extrajudicial Measures

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 272-317

272

A. THE CONCEPT OF DIVERSION

While the primary legal response to youthful offending is through the

court system, there are many youths who are diverted from the formal

justice system and dealt with in a less intrusive, more informal, and

more expeditious fashion. The value of alternatives to the convention-

al judicial response was, for example, recognized in the 1993 Martin

Committee report:

[T]he criminal law is a blunt instrument of social policy that ought

to be used with restraint. The criminal law aims to achieve rehabili-

tation, specific deterrence, general deterrence, and the protection of

society. However, there is no reason to think that the criminal law is

the only method of achieving these socially desirable goals.

Accordingly, it is clearly in the public interest to consider the . . .

alternatives to any given prosecution, and their efficacy, remembering

that these alternatives may be able to deal more sensitively and com-

prehensively with the particular problem at hand, while at the same

time meeting the goals of the criminal justice system.1

DIVERSION AND

EXTRAJUDICIAL

MEASURES

chapter 5

1 Ontario, Ministry of the Attorney General, Report of the Attorney General’s

Advisory Committee on Charge Screening, Disclosure and Resolution Discussion

[Martin Committee Report] (Toronto: Queen’s Printer, 1993) at 96.

Alternatives to the formal criminal response are especially worthy

of consideration if it is an adolescent who breaks the law, as this may

reflect youthful immaturity. For many adolescent offenders, apprehen-

sion by the police and some form of non-judicial response may be suf-

ficient to hold the youth accountable and deter any further offending.

Under the Juvenile Delinquents Act,2alternatives to formal charging

were widely employed. Most frequently, diversion was informal:

although the Act had no express provisions dealing with diversion, it

was a common practice for police who apprehended juveniles for

minor offences to release them after talking to the youths and warning

them that if they were caught committing further offences, they would

be charged and taken to court. By the 1970s, more formal diversion

programs were being established by various social agencies in Canada

and other countries. Police or prosecutors were sending youths to

these community-based programs rather than to juvenile court.

One of the rationales offered for the first formal juvenile diversion

programs in the early 1970s was a sociological doctrine known as

labelling theory. The theory is that youths who are labelled as “delin-

quents” may come to think of themselves as offenders, as well as being

referred to by parents, teachers, and others as “deviant.” It is thought

that such labelling might contribute to future offending or “secondary

deviance.”3Proponents of this theory argue that some youths may be

unnecessarily harmed by being labelled as “young offenders” through

the formal court process, and that they may be less likely to reoffend if

they are diverted to a relatively informal process. Labelling theory has

never been clearly demonstrated to reflect reality, and empirical research

is at best equivocal about whether merely identifying and describing a

youth as an “offender” actually increases the likelihood of reoffending.

It has not been conclusively proven that use of formal diversion pro-

grams as opposed to youth court charging reduces recidivism.4It is,

Diversion and Extrajudicial Measures 273

2Juvenile Delinquents Act, enacted as S.C. 1908, c. 40; subject to minor amend-

ments over the years, finally as Juvenile Delinquents Act, R.S.C. 1970, c. J–3.

3 See, for example, S. Moyer, Diversion from the Juvenile Justice System and Its

Impact on Children: A Review of the Literature (Ottawa: Department of Justice,

1980) at 67–74.

4 There is no clear empirical support for the proposition that the process of

‘labelling” which results from a court-based response to youth crime has a higher

recidivism rate than a less formal response by a community-based program of

“alternative measures” (to use the term under the Young Offenders Act, below note

9) or “extrajudicial sanctions” (the term used under the Youth Criminal Justice

Act, below note 6). There is, however, significant empirical support for the

proposition that, even taking into account prior offending and the seriousness of

however, clear that, in most situations where it is employed, the use of

diversion does not increase the likelihood of a youth reoffending and

that most youths who are sent to these programs do not reoffend.

The fact that diversion may not, in itself, necessarily reduce reof-

fending does not mean that diversion programs are without value.

Diversion programs have the potential to resolve a case in a way that is

more expeditious and less expensive for society than a court-based

response. Further, in comparison to the formality and adversarial

nature of youth justice court — a forum that tends to preclude open

discussion by the individuals concerned with a crime — a properly

designed diversion program can offer youths, parents, and victims an

opportunity to engage actively in achieving a resolution for the situa-

tion caused by the offending which may prove more satisfactory to all

involved. There may also be an important role for members of the com-

munity in diversion programs. Such community involvement may, for

example, be especially important for Aboriginal communities, although

it may be very appropriate in other communities as well.

The term “restorative justice” is increasingly being used to charac-

terize responses to offending that involve the victim, the offender, fam-

ily members, and community members in a process of discussion about

the offence and its effects on the victim and the community, and the

joint development of a plan to provide compensation to the victim and

to help prevent recurrence of offending behaviour. Restorative justice

is distinguished from the retributive principles of the conventional

criminal justice model by its focus on restoring relationships between

the offender and victim, and between the offender and the community.

While courts can make use of restorative justice principles in dealing

with offenders, a range of diversion programs are especially well suit-

ed to applying restorative justice principles.5

274 Youth Criminal Justice law

the offence, a court-based response which places the youth in custody disrupts

relationships with parents and results in the youth being seen as a relatively seri-

ous offender, which does increase the likelihood of recidivism: see E.A. Stewart,

et al., “Beyond the Interactional Relationship Between Delinquency and

Parenting Practices: The Contribution of Legal Sanctions” (2002) 39 J. Res. in

Crime & Delinquency 36.

5 Gordon Bazemore and Lode Walgrave, eds., Restorative Juvenile Justice : Repairing

the Harm of Youth Crime (Monsey, NY: Criminal Justice Press/Willow Tree,

1999); Bruce Archibald, “A Comprehensive Approach to Restorative Justice” in

Don Stuart, et al., eds, Towards A Clear and Just Criminal Law: A Criminal Reports

Forum (Toronto: Carswell, 1999); J. Braithwaite, “Restorative Justice and Social

Justice” (2000) 63 Sask L.Rev. 185; and R. Prashaw, “Restorative Justice: Lessons

in Empathy and Connecting People” (2001) 20 Can. J. Comm. Mental Health 23.