Preliminary Matters and Remedies

AuthorSteve Coughlan
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, a ssum-
ing that a prosecution is to occur, some admini strative and other mat-
ters can be dealt with before the trial begins, either through a pre-trial
motion or a pre-trial conference. Finally, in a case that w ill be tried by
a jury, that jury must be selected. These is sues will be dealt w ith in
this ch apter.
In an informal sen se, an alternative to prosecution has long ex isted
through the exercise of discretion by police to not lay charges in the
first place, or by Crown prosecutors to not continue them.1 Only rela-
tively recently has that discretion been more formalized i n a system of
alternative measure s authorized by statute.
1 The general view of the le gitimacy of exercisi ng that discretion ha s varied over
time: see the d iscussion in Bruce Arch ibald, “Prosecutors, Democr acy and the
Public Interest : Prosecutorial Disc retion and Its Limits in Ca nada” (Paper deliv-
ered at the XVIt h Congress of the Intern ational Academy of Comparative L aw,
Brisbane, Aus tralia, 14–22 July 2002) at 17–22.
Preliminary Matters and Remedies 419
Statutory alternative mea sures 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 creat ing the poten-
tial use of altern ative measures for adults as well. The essent ial theory
behind these scheme s is that, in certa in 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 wit h the requirements of the alternative
measures program, however, crimi nal charges can still be laid.
Section 717 of the Code does not require that an alter native meas-
ures program exist, but it authorizes the attorney general of a province
to create such a program, and many provi nces have done so.3 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 consideri ng their
use is satisfied t hat they are appropriate given “the interests of soc iety
and of the victim.”4 Other provisions are aimed at protecting the inter-
ests of the person who would otherw ise be the “accused.” In large part,
these provisions are a imed at ensuring that alternative measures are
used only in case s that would otherwise have proceeded to prosecution,
rather than being u sed in cases that simply would not have occupied
the justice system at all. That is, alter native measures are intended to
be a way of diverting some case s out of the criminal justice system, not
a way of expanding its scope.
Consistent with th is approach, alternative measures cannot be used
unless the prosecutor believes t hat there would be sufficient evidence to
proceed with a prosecution and th at the prosecution is not barred at law
in any way.5 The person involved must have been advised of the right to
counsel, must accept responsibility for the act or omis sion constituting
the offence, and must fully and freely consent to participate.6 Alterna-
tive measures cannot be used where the person denies involvement in
2 RSC 1985, c Y-1, enacted as SC 1980–81–82– 83, c 110 [YOA].
3 See Statist ics Canada, “Community Cor rections in Canada” (Stati stics Canada:
20 04):
Prince Edwa rd Island, Nova Scotia, New Bru nswick, Quebec, Man itoba,
Saskatchewa n, Alberta, British C olumbia and the Yukon offer adult altern a-
tive measure s programs without lim itations. The Northwest Territorie s and
Nunavut offer it on a li mited basis, and Newfoundl and and Labrador and
Ontario do not offe r adult alternative measur es programs.
4 Se cti on 717(1) (b).
5 Sections 717(1)(f) & (g).
6 Sections 717(1)(c), (d), & (e).
the offence or wants a charge dealt with in court.7 Further protection
for the individual is provided by the rule that no admission, confes-
sion, or statement made by a person as a condition of being dealt with
by alternative measure s is admissible again st that person in any later
If a person completes the alternative measures, the court must dis-
miss any charges laid against that person later in respect of the offence.
If charges are later laid against a person who has only partly completed
the alternative measures, a court can still st ay the charges if it is of the
view that “the prosecution of the cha rge would be unfair, having regard
to the circumsta nces and that person’s performance w ith respect to the
altern ative meas ures.”9
In practice, provinces have tended to consider the u se of alternative
measures according to var ious categories of offences. Typically, alterna-
tive measures simply will not be used for serious violent offences, ser-
ious sexual offences, spousa l violence, drug trafficki ng, organized crime,
and so on. Many minor offences presumptively will automatically be
referred to alternative mea sures, while a group of offences in the mid-
dle continue to depend on prosecutorial discretion. Normally, this dis-
cretion is to be exercised in accorda nce with criteria established w ithin
the province’s pros ecution serv ice.10
Alternative measure s programs usually ask the person to under-
take community ser vice, personal serv ice for the victim, specialized
education programs, counselling, or to write a letter of apology.11 More
ambitious alternatives are a lso available. In Nova Scotia, for example,
relying on the authority of section 717 of the Code and sect ion 4 of the
YOA, the province created a restorative justice program. This program
creates the possibil ity for conferences between the offender, the victim,
supporters of each of those people, and, potentially, other members
of the community or police officers. Supporters of restorative justice
argue that the outcomes of such conferences can ulti mately be far more
beneficial to the offender, the victim, and society as a whole.12
Subsequently, the YOA was replaced by the Youth Criminal Justice
Act.13 That Act now refers not to “alternative measure s” but to “extra-
judicial measures.” For the most part, the features noted above are
7 Section 717(2).
8 Sec tio n 717(1)(3).
9 Sec tion 717(4)(b).
10 See the disc ussion in Archibald, above note 1 at 29 –30.
11 Ibid at 29.
12 Ibid at 34.
13 SC 2002, c 1 [YCJA].

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