Diversion, Extrajudicial Measures, and Conferences

• Author: Nicholas Bala, Sanjeev Anand
• Pages: 340-392

340

CHA PTER 5

DIVERSION,

EXTRAJUDICIAL

MEASURES, AND

CONFERENCES

A. THE CONCEPT OF DIVERSION

While the primary legal response to youthful offendi ng is through the

court system, there are many youths who are d iverted from the formal

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

more expeditious fashion. The value of alternatives to the conventional

legal response was, for example, recogni zed in the 1993 Martin Com-

mittee Report:

[T]he crimin al law is a blunt instr ument of social policy t hat ought

to be used with r estraint. The cri minal law aim s to achieve rehabili-

tation, specif‌ic deter rence, general deterrence, and t he protection of

society. However, there is no reason to thi nk that the criminal l aw is

the only method of achiev ing these socia lly desirable goals. Accord-

ingly, it is clearly in the public intere st to consider the . . . alternatives

to any given prosecution, and t heir eff‌icacy, rememberi ng that these

alternatives m ay be able to deal more sensitively a nd comprehen-

sively with the par ticular problem at hand, whi le at the same time

meeting the goals of t he criminal justice system .1

1 Ontario, Min istry of the Attorney Ge neral, Report of the Attorne y General’s

Advisory Committee o n Charge Screening, Disclosure and Resolution Di scussion

(Toronto: Queen’s Printer, 1993) at 96 [Martin Committee Repor t].

Diversion, Ext rajudicial Measures, a nd Conferences 341

Alternatives to the form al criminal justice response are especi ally

worthy of consideration when an adolescent breaks the law, as this

conduct may ref‌lect youthful immaturit y. For many adolescent offend-

ers, apprehension by the police and some form of non-judicial response

may be suff‌icient to hold the youth accountable and deter any further

offending. Under the JDA,2 alternatives to formal chargi ng were widely

employed. Most frequently, diversion was informal. Although that Act

had no express provi sions 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, the f‌irst formal juvenile diversion pro-

grams were being e stablished in Canada and other countries. Police or

prosecutors began to send some youthful offenders to these commun-

ity-based programs rat her than to juvenile court.

One rationale offered for the establishment of juvenile diversion

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

theory. The theory is that youths who are labelled a s “delinquents” may

come to perceive themselves as offenders, as well a s being referred to by

parents, teachers, their peers, and others in the community as “trouble-

makers.” McMurtry and Curling raised t his concern in their 200 8 re-

port on youth violence, argui ng that Canada’s youth justice system

is too often deployed in counterpro ductive ways. We see this as lead-

ing to . . . ways in which t he immediate risk fac tors for involvement

in violence can be cre ated.

The f‌irst is through over-cr iminaliz ation. We, of course, do not

take issue w ith the use of the justice system to addre ss crime. We do,

however, raise concerns about exce ssive reliance on the justice s ys-

tem for minor matters th at do not involve violence. Criminal ization

can cause youth to see t hemselves as having no other f uture and can

change for the worse the way the y are seen by their peers, f amilies,

schools and communitie s. It can severely restr ict both their oppor-

tunities and t heir own sense of tho se opportunities. It ca n lead dir-

ectly to crim inal associ ates. It can dest roy hope and feed alienation.

We accept that crimin al charges are neces sary in ma ny instan-

ces, but feel that the deci sion to criminal ize should be a strategic

one, taken in full aw areness of the consequence s. Where it is used

2 Juvenile Delinq uents Act, enacted a s S.C. 1908, c. 40; subject t o minor amend-

ments over the yea rs, f‌inally as Juvenile Deli nquents Act, R.S.C. 1970, c. J-3 [JDA].

YOUTH CRIM INAL JUSTICE LAW342

unwisely, the youth justice syst em has the potential to create r isks for

future violence rather t han reducing them.3

There are concerns that labell ing may in turn contribute to future

offending or “secondary devia nce.”4 It is argued by supporters of diver-

sion that some youths may be unnecess arily harmed by being labelled

as “young offenders” through charging and the imposition of youth

court records, and that they may be less likely to reoffend if they are

diverted to a relatively informa l process. Labelling theory has never

been clearly demonstrated to ref‌lect reality, and empirical research is

somewhat equivocal about whether merely identifying and describing

a youth as an “offender” increases the likelihood of reoffending. Al-

though some studies have found sending a youth to a diversion program

may reduce the risk of reoffending, it has not been proven conclusively

that use of formal diversion progra ms as opposed to youth court char-

ging reduces recidiv ism.5 It is, however, clear that the use of diversion

does not increase the likeli hood of a youth reoffending and that most

youths who are sent to these programs do not reoffend.

Even if diversion does not, in itself, red uce the ri sk of reoffending,

diversion programs clearly have value. Diversion programs have the

potential to resolve a case in a way that is more expeditious and less

expensive for society tha n a court-based response. Further, in com-

parison to the forma lity and adversarial nature of youth justice court

— a forum that tends to preclude open discussion by the individuals

concerned with a crime — a properly desig ned informal community-

based program can offer youths, parents, and victims an opportunity

to engage actively in achieving a resolution for the situation caused by

3 Ontario, Review of the R oots of Youth Violence by Roy McMurtry & A lvin Curling,

vol. 2 (Toronto: Queen’s Printer, 2008) at 15.

4 See, for example, Sha ron Moyer, Diversion from the Juvenile Justice System and

Its Impact on Children: A R eview of the Literature (Ottawa: Depar tment of Justice,

1980) at 67–74.

5 There is no clear empir ical support for the proposition th at the process of label-

ling, which res ults from a court-based res ponse to youth crime, has a hi gher

recidivi sm rate than a less forma l response by a community-ba sed program of

“alternative me asures” (to use the term under the YOA) or “ex trajudicial sanc-

tions” (the term used u nder the YCJA). There is, however, signif‌ic ant empirical

support for the proposit ion that, even taking int o account prior offending and

the seriousne ss of the offence, a court-based re sponse that places t he youth in

custody dis rupts relationships w ith parents and result s in the youth being seen

as a relatively s erious offender — that does inc rease the likelihoo d of recidi-

vism: see Er ic A. Stewart et al., “Beyond the Inter actional Relationship b etween

Delinquency a nd Parenting Practices: The Cont ribution of Legal Sanctions”

(2002) 39 J. Res. in Crime & Delin quency 36.