Not every criminal charge has to end at a trial or a guilty plea. For many first-time accused people, especially on a shoplifting, minor mischief or low-level assault allegation, the most useful question to ask early on is whether there is a way out through diversion.
Diversion means that the Crown steers the case away from the usual route to a verdict, on the condition that the accused person does something meaningful: attends counselling, donates to a charity, writes a letter of apology, or performs community service. When that work is done, the charge is typically withdrawn or stayed. There is no trial, no plea and no conviction.
Diversion is a discretionary matter, so please read this as general information and not as legal advice on whether it is available to you. A Crown decides each file on its own facts, and local practices can change.
The Language Can Be Confusing
You will hear several terms at the courthouse, and they do not all mean the same thing.
- Diversion is the everyday word for steering a case out of the normal prosecution stream.
- Alternative measures is the legal term in Part XXII.2 of the Criminal Code for measures, other than judicial proceedings, used for adults aged 18 and older.
- Direct Accountability is the name of a provincial program in Ontario that delivers one form of diversion.
- Withdrawn means the Crown has decided not to continue the charge.
- Stayed means the prosecution has been halted. A Crown stay allows for recommencing within a limited time, which is one reason lawyers pay attention to which of these words is being used.
- Dismissed or acquitted means a judge has ended the charge or found the accused not guilty.
Someone leaving court happy with “they dropped it” may not know which of these happened. It is worth finding out, and it is worth getting a written record.
What the Criminal Code Requires
The framework is set out in the Criminal Code from section 715.44 onward. It tells police and prosecutors to think about alternatives before a case goes forward. A police officer must consider taking no further action, issuing a warning, or making a referral, instead of laying a charge, where that is appropriate and does not pose a risk to public safety. Prosecutors must make a similar assessment before starting or continuing a case. If the police or the prosecutor fail to do this, though, the charge itself is not invalid.
For alternative measures to be used, section 715.49 lists a set of conditions:
- The measure must be part of an authorized program.
- The person considering it must be satisfied that it is appropriate, given the needs of the accused and the interests of the victim and society.
- The accused must fully and freely consent after being informed of the measure.
- The accused must be advised of the right to a lawyer before consenting.
- The accused must accept responsibility for the act or omission behind the offence.
- There must be sufficient evidence to proceed with a prosecution.
- The prosecution must not be barred at law.
Section 715.5 adds two firm limits. Alternative measures cannot be used for someone who denies involvement in the offence, or who says they want the charge dealt with in court.
The Ontario Directive and the Direct Accountability Program
In Ontario, the Crown Prosecution Manual gives prosecutors more detail in its directive on community justice programs for adults. It describes the Direct Accountability Program, which is available in most of Ontario, as well as an Indigenous Community Justice Program for Indigenous adults. Where no formal program exists, a prosecutor may use informal diversion.
According to the directive, a prosecutor may consider diversion only if there is a reasonable prospect of conviction. The accused must accept responsibility and be prepared to make amends. The plan should then address what actually caused the conduct. A prosecutor also considers factors such as the views of the victim and whether restitution has been made.
The directive divides offences into categories:
- Excluded. A number of offences cannot be referred, whatever the facts, including homicide, impaired or death-causing driving, aggravated assault, firearms offences, robbery, kidnapping, home invasions, terrorism, human trafficking, child exploitation offences and sexual offences.
- Presumptively ineligible. Intimate partner violence, criminal harassment and hate-motivated offences can go forward only in exceptional cases and with higher-level approval inside the Crown’s office.
- Otherwise eligible. All other offences can be considered. Being eligible on paper does not mean you will be offered it.
There is also a separate directive for people with a mental illness, which can lead to mental health diversion with community supports where appropriate. Anyone with a diagnosed condition, or with concerns about their mental health, should tell a lawyer early, so this route can be explored.
“Accepting Responsibility” Is Not the Same as Pleading Guilty
This is often the sticking point, especially for people who feel the allegation is exaggerated. You do not stand up in court and plead guilty. You acknowledge to the program that you are responsible for the act behind the charge.
The law offers a protection here. Under section 715.51, an admission or statement accepting responsibility, made as a condition of being dealt with by an alternative measure, cannot be used against you in any civil or criminal proceeding.
Even so, this is not a formality. If you truly did not do what is alleged, you cannot honestly take this route, and the Code forbids it where you deny involvement. A lawyer can review the disclosure to tell you whether you would be giving up a strong defence. Sometimes a person accepts responsibility for part of an incident, and whether that is enough is something to discuss with counsel and the Crown.
How It Usually Unfolds
Timelines differ, but here is a common sequence for a straightforward diversion in Peel, based on a hypothetical first-time shoplifting charge:
Before the first date. The person is released on an appearance notice or undertaking and attends for fingerprints if the document requires it.
First appearance at 7755 Hurontario St. Disclosure is requested. The Crown may signal early that the case could suit diversion, or defence counsel may raise it.
Crown discussion. A lawyer may provide helpful background such as employment, school, family responsibilities, immigration concerns and any treatment already under way. Efforts already made, such as returning items or starting counselling, can help.
Referral. If the Crown agrees, the accused is sent to a program or given a set of terms. For Direct Accountability, a community agency usually meets with the person and sets the requirements.
Doing the work. This could mean completing a theft awareness or anger management course, community service hours, a charitable donation, a letter of apology or restitution.
Back to court. Proof of completion goes to the Crown. The charge is then withdrawn or stayed in open court, often in a very short appearance.
Keep receipts and certificates. Do not assume a program has sent everything to the Crown, and do not miss the return date just because you have finished the program.
What If You Do Not Finish
Diversion is not automatically a final bar to the prosecution. Under section 715.52, if a charge is before the court, the judge must dismiss it if satisfied on a balance of probabilities that you totally complied with the terms. If compliance was only partial, the judge may dismiss the charge if continuing to prosecute would be unfair, taking into account your circumstances and what you actually did.
In practice, a person who drops out or fails to complete a program may see the prosecution resume. So be realistic before you agree. Check that the hours fit your shift schedule, that you can afford the donation, and that you can reach the course location.
Other Ways Charges Get Withdrawn
Diversion is only one reason a Crown might withdraw a charge. A prosecutor has an ongoing duty to review whether there is still a reasonable prospect of conviction and whether continuing is in the public interest. So a charge may also be withdrawn because:
- a key witness has become unavailable or unreliable
- the disclosure contradicts the original complaint
- video or other evidence supports the defence
- a Charter problem has seriously weakened the case
- the accused agrees to a peace bond in exchange
- a more serious charge is withdrawn in exchange for a plea to a lesser one
The last two are not free of cost, and each should be weighed carefully. If you believe the evidence is weak, a lawyer can make those points in writing to the Crown. This is often called a resolution letter or a defence submission, and it tends to carry the most weight when it addresses specific problems in the evidence.
What a Withdrawal Does Not Erase
A withdrawn charge is not a conviction, and you should be able to answer truthfully on most forms that you have no criminal record because of it. But the fact that you were charged can linger.
Police records of the investigation, as well as fingerprints and photographs taken on arrest, may remain until you take steps. Many people apply to the police service that took their prints, in Peel typically Peel Regional Police, for destruction of those records after the charge ends. Rules, waiting periods and any fees are set by the police service, so check the current process. Under the Code, a record kept in connection with an alternative measure also carries limits on when it can be introduced in later proceedings.
Ontario’s Police Record Checks Reform Act limits what can appear on many routine police checks for non-conviction outcomes, with extra exceptions for vulnerable sector checks. A foreign border service is not bound by Ontario’s rules, however. Anyone travelling to the United States should not assume a withdrawal makes the matter invisible at the border. Non-citizens should also get immigration advice, even when no conviction resulted, and should keep copies of the court’s final disposition.
Is Early Resolution Right for You?
There are honest reasons to choose it and honest reasons not to. A quick diversion spares you months of uncertainty, the cost of a trial, and the risk of a conviction. It also requires you to accept responsibility for something, and you would give up the chance of being cleared by a verdict. If an allegation threatens your licence or reputation, you might feel strongly about having your day in court.
Before making that choice, get the disclosure and have it reviewed. A lawyer can discuss the options for charges such as shoplifting or mischief, and approach the Crown on your behalf. To talk through your own file, you can contact our office. Early conversations tend to be easier than later ones, because more options are usually still open at the beginning of a case.