Canadian criminal justice: Post-charge diversion and peace bonds
In some cases, charges can be resolved without a trial and without a plea of guilt. The two most common ways to resolve charges without findings of guilt are post-charge diversion and peace bonds. These options are normally available where the defendant is a first-time offender or where the prosecution recognizes that its case is weak.
In the Canadian criminal justice system, “diversion” (for adults) or “extrajudicial measures” (for young persons) is a process where police or prosecutors agree to take a course of action that either avoids charges altogether or avoids having charges lead to a finding of guilt.
Post-charge diversion / “alternative measures” (for adults) or “extrajudicial sanctions” (for young persons) happens when the prosecution agree not to seek a finding of guilt for a person charged with a criminal offence, normally where the person has been charged with a minor offence – instead, the prosecutor will issue a warning or caution or refer the person to a rehabilitative program to help avoid re-offence in exchange for withdrawing the charges.
- For young persons, the Youth Criminal Justice Act (YCJA) has several specific procedures relating to extrajudicial sanctions. Section 10 of the YCJA provides that “extrajudicial sanctions” cannot be used if the person denies playing a role in the offence or expresses their wish to take the matter to trial.
- For adults, the Criminal Code has several specific procedures for diversion or “alternative measures.” Subsection 717(2) of the Criminal Code provides that “alternative measures” cannot be used if the person denies playing a role in the offence or expresses their wish to take the matter to trial. Subsection 717(1) of the Criminal Code sets out the preconditions for offering “alternative measures.”
The benefit of pre-charge diversion is that the defendant is never found guilty of a criminal offence, thereby avoiding the stigma of a finding of guilt and the costs associated with either pleading guilty or going to trial.
There are a number of organizations in the East Region of Ontario that offer post-charge diversion programs.
At common law and under the Criminal Code, justices of the peace and judges have the authority to impose “peace bonds” on individuals. A peace bond is a court order that forces a person to follow certain conditions for up to twelve months, such as “keeping the peace and being of good behaviour” and refraining from contacting certain people. In this sense, it is like being on bail conditions. In general, the courts can order a peace bond where a member of the community proves that they have a reasonable fear for their physical or psychological safety because of another person. The defendant against the peace bond will have the opportunity to “show cause” why the peace bond should not be ordered, either by showing that the other person is not reasonably afraid or by giving some other reason for the court not to proceed.
Peace bonds can be a useful tool for resolving criminal cases. Sometimes, the prosecution will agree to withdraw criminal charges if the defendant accepts a peace bond that would protect an alleged victim. For example, in a domestic assault case, the prosecution might withdraw a mischief or assault charge if the defendant enters into a peace bond, agreeing that they will not communicate with the alleged victim for up to twelve months.
It is a criminal offence to fail to comply with the terms of a peace bond. For that reason, it is important for individuals to know exactly what they are required to do or prohibited from doing under the terms of a peace bond.
Our lawyers carefully consider the evidence against our clients and weigh the advantages and disadvantages of going to trial. Part of our job is to create options – to find the best result after a trial and to find the best result without a finding of guilt, if appropriate. We have also assisted individuals who have been charged with failing to comply with the terms of their peace bond.
Contact the lawyer of your choice for a free consultation.
This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at email@example.com to propose any changes or updates.