Diversion, Extrajudicial Measures, and Conferences

• Author: Nicholas Bala/Sanjeev Anand
• Pages: 327-378

327

CHAPTER 5

DIVERSION,

EXTR AJUDICIAL

MEASURES, AND

CONFERENCES

A. THE CONCEPT OF DIVERSION

While the prim ary legal re sponse to youthful offending is through t he

court system, there are m any 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 conventional

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

mittee Report:

[T]he c rimina l law is a blunt instrument of s ocial p olicy that ought

to be used w ith restraint. The cri minal l aw aims to ac hieve rehabili-

tation, spe cif‌ic deter rence, general deterrence, and the protection of

society. However, there is no reason to thin k that the criminal l aw is

the only met hod of achiev ing these social ly desirable goals. Accord-

ingly, it is clearly in the public interest to consider the . . . alternative s

to any given prose cution, and thei r eff‌icacy, rememberi ng that these

alternatives m ay be able to deal more sensitively and comprehensive-

ly with the pa rticular problem at hand, while at t he same time meet-

ing the goals of the cr iminal 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].

YOUTH CRIM INAL JUSTICE LAW328

Alternatives to the formal cr iminal justice res ponse are especially

worthy of consideration if it is an adolescent who breaks the law, a s

this conduct may ref‌lect youthful immaturity. For many adolescent

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

response may be suff‌icient to hold t he youth accountable and deter

any further offending. Under the Juvenile Delinquents Act,2 altern atives

to forma l charging were w idely 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 juven-

iles for mi nor offences to release them after talki ng to t he youths and

warning them t hat if they were caught committing further offences,

they would be charged and taken to court. By the 1970s, the f‌irst formal

diversion programs were b eing established in Canada and other coun-

tries. Police or prosecutors began to send some youthful offenders to

these community-based programs rather than to juvenile court.

One rationale offered for the establishment of juvenile diversion

programs in the 1970s was a sociological doctrine k nown as labelling

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

come to think of themselves as offenders, as well as being referred to by

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

makers.” McMurtr y and Curling raised this concern in their 2008 youth

violence report, arguing th at Canada’s youth justice system

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

ing to . . . ways in which the immediate risk factors for involvement

in violence can be cre ated.

The f‌irst is through over-crim inalization. We, of course, do not

take issue with the us e of the justice system to address crime. We do,

however, raise concerns about exces sive reliance on the just ice sys-

tem for minor matters that do not involve v iolence. Cr iminalization

can cause youth to see t hemselves as having no other futu re and can

change for the worse the way they are seen by their peer s, f amilies,

schools and com munities. It can severe ly rest rict both their oppor-

tunities and their own sense of those opportunities. It c an lead dir-

ectly to crim inal ass ociates. It can dest roy hope and feed alienation.

We accept t hat cr iminal charge s are necessary i n many inst an-

ces, but feel that t he decision to cr iminalize should be a st rategic

one, ta ken in full awar eness of the conse quences. Where it is used

2 Juvenile Delinquents A ct, enacted as S.C. 1908, c. 40; subject to mi nor amend-

ments over the yea rs, f‌inally as Juvenile Delinque nts Act, R.S.C. 1970, c. J-3 [J DA].

Diversion, Ext rajudicial Measures, a nd Conferences 329

unwisely, the youth justice system has the potential to create risk s for

future violence rather t han reducing them.3

There are concerns that label ling may contribute to future offend-

ing or “seconda ry deviance.”4 It is argued by supporters of diversion

that some youths may be unnecessar ily harmed by being labelled as

“young offenders” through charging and the imposit ion of youth court

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

to a relatively informal process. Labelling theory ha s never been clear-

ly demonstrated to ref‌lect reality, and empir ical re search i s somewhat

equivocal about whether merely identify ing and de scribing a youth as

an “offender” increases the likel ihood of reoffending. Although 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 programs as opposed to youth court charging reduces

recidivi sm.5 It i s, however, clear that t he use of diversion does not in-

creas e the li kelihood of a youth reoffending and that most youths who

are sent to these program s do not reoffend.

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

diversion programs clearly have value. Diversion progra ms have the

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

expensive for society than a court-based response. Further, in compari-

son to the form ality and adversarial nature of youth ju stice court — a

forum that tends to preclude open discussion by the i ndividuals con-

cerned with a crime — a properly designed informal community-based

program can offer youths, parent s, and victims an opportunity to en-

gage actively in achiev ing a resolution for the situation caused by the

3 Ontario, Re view of the Roots of Youth Violence by Roy McMur try & Alvin Curl-

ing, 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 Re view of the Literature (Ottawa: Depar tment of Justice,

1980) at 67–74.

5 There is no clear empi rical support for the proposition t hat 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 Young Offend ers Act) or “extra-

judicial sa nctions” (the term used under the Youth Criminal Justi ce Act). There

is, however, signif‌ic ant empirical support for the propo sition that, even taki ng

into account prior offend ing and the seriousnes s of the offence, a court-based

response t hat places the youth in custody d isrupts relationsh ips with parents

and results i n the youth being seen as a relat ively serious offender — that does

increase t he likelihood of recidiv ism: see Eric A. Stewart e t al., “Beyond the

Interactiona l Relationship between Del inquency and Parenting Pr actices: The

Contribution of Le gal Sanctions” (2002) 39 J. Res. in Crime & Deli nquency 36.