The Federal Prosecution Service
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Part IV
LITIGATION FRAMEWORK
Chapter 14

Table of Contents

14 ALTERNATIVE AND EXTRAJUDICIAL MEASURES

14.1 INTRODUCTION

14.2 STATEMENT OF ALTERNATIVE MEASURES POLICY
14.2.1 General Principles
14.2.2 Preconditions to Diversion

14.3 GUIDELINES FOR APPLICATION OF POLICY
14.3.1 The Circumstances of the Offender
14.3.2 The Nature of the Offence
14.3.3 The Circumstances of the Offence

14.4 SUCCESSFUL COMPLETION OF THE ALTERNATIVE MEASURES PROGRAM

14.5 FAILURE TO COMPLETE THE ALTERNATIVE MEASURES PROGRAM

14.6 EXTRAJUDICIAL MEASURES UNDER THE YCJA
14.6.1 Introduction
14.6.2 Extrajudicial Measures: Options for Crown counsel
14.6.2.1 Withdrawal of the charge
14.6.2.2 Referral to a community program or agency
14.6.2.3 Crown caution
14.6.2.4 Extrajudicial sanctions
14.6.3 General Principles for the Use of Extrajudicial Measures
14.6.4 Determining Whether an Extrajudicial Measure Would Be Adequate to Hold a Young Person Accountable
14.6.5 Factors related to the seriousness of the offence, and the history of previous offences or any other aggravating circumstances
14.6.6 Choosing the Appropriate Extrajudicial Measure
14.6.6.1 Crown cautions: specific considerations
14.6.6.2 Extrajudicial sanctions: specific considerations

14.7 THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

14.8 APPENDIX A ATTORNEY'S GENERAL ORDER

14.9 APPENDIX B SCHEDULE A ALTERNATIVE MEASURES (DIVERSION) PROGRAMS
14.9.1 APPENDIX C ATTORNEY’S GENERAL ORDER: CROWN CAUTIONS FOR YOUNG PERSONS
14.9.2 APPENDIX D CROWN CAUTION LETTERS
14.9.3 APPENDIX E Notice to Parent or Guardian
14.9.4 APPENDIX F ATTORNEY’S GENERAL ORDER
14.9.5 APPENDIX G Extrajudicial sanctions under the YCJA

14 ALTERNATIVE AND EXTRAJUDICIAL MEASURES

14.1 Introduction

Not every individual alleged to have committed an offence need be prosecuted. Section 717 of the Criminal Code recognizes that where it is not inconsistent with the protection of society, Crown counsel can exercise their discretion to deal with the individual by “alternative measures,” (or “diversion,” as it is sometimes known). In such circumstances, Crown counsel refers the offender to an individual or agency with the intention of reaching an agreement to deal with the offence outside the judicial process. In appropriate cases, alternative measures may provide greater benefit to the offender, the victim, and society than can the formal criminal process. Indeed, the fundamental principle underlying alternative measures is that criminal proceedings should be used with restraint and only when other less intrusive measures have failed or would be inappropriate. This allows the courts to devote their resources to addressing more serious crime.

The object of these alternative measures programs for adults is to have the offender accept responsibility for the offence without going to trial. Participation in an alternative measures program is voluntary; the offender cannot be forced into it. If the offender complies with the diversion agreement, the Crown relinquishes its right to prosecute the offender for the offence.

Diversion can occur before or after a charge is laid¹. This policy generally applies after a charge has been laid, except in provinces where pre-charge screening takes place, where it will apply both pre-charge and post-charge. The policy applies to both adults and young offenders.

While many of the principles in this alternative measures policy are relevant to both adults and young persons, important differences exist between Alternative Measures for Adults and Extrajudicial Measures for young persons under the Youth Criminal Justice Act. Adult Alternative Measures do not apply to young persons. To distinguish between the options available to adults from those available to young persons, the terms “alternative measures” and “diversion” are used throughout this policy to refer to adult offenders; “extrajudicial measures” is used in association with young persons.

14.2 Statement of Alternative Measures Policy

14.2.1 General Principles

Diversion is not intended to be available for every offender and every offence. Rather, it is an acknowledgement that in some cases, because of the nature and circumstances of the offence and the offender, the public interest would be better served by a resolution outside of the traditional criminal process. Generally, it will be most suitable for younger adult offenders and those with no criminal record, who have committed minor offences.

14.2.2 Preconditions to Diversion

Where Crown counsel is considering exercising the discretion to divert an alleged offender, Crown counsel must be satisfied that the following preconditions have been met:

• the case meets the criteria in the "Decision to Prosecute" policy² (ss. 717(1)(f) and (g), Criminal Code);
     
• the offender has been advised of his or her right to counsel and is aware that he or she does not have to accept diversion (ss. 717(1)(c) and (d), Criminal Code);
   
• the offender is willing to acknowledge responsibility for his or her actions (s. 717(1)(e), Criminal Code);
   
• a program described in s. 717(1)(a) of the Criminal Code exists for which this particular offender would be eligible;
   
• appropriate consultation has been undertaken, where necessary, with victims, investigating authorities³ or other interested parties, and diversion would be in the interests of society, the offender and the victim (s. 717(1)(b), Criminal Code).
   
• Crown counsel should note that the statutory pre-conditions to alternative measures for adults in s. 717 of the Criminal Code are virtually identical to the pre-conditions for the use of extrajudicial sanctions for young persons under s. 10(2) of the YCJA.

14.3 Guidelines for Application of Policy

14.3.1 The Circumstances of the Offender

The policy is aimed generally at offenders who have not violated the criminal law previously, and are unlikely to do so in the near future. Crown counsel should consider the following factors in assessing an offender's suitability:

• whether the offender has previously violated the criminal law (including convictions, discharges or diversions) and if so, the date and nature of the violations;
   
• the offender's remorse (including for example, whether the offender has agreed to fairly compensate any victim(s));
   
• whether the offender poses a risk to the community; and
   
• whether the offender is facing other charges.

14.3.2 The Nature of the Offence

As indicated above, the policy is directed at "minor" offences. "Minor" offences include offences that are objectively less serious, or potentially serious offences committed in a less serious way. The following factors are relevant in determining seriousness:

• whether the offence is summary or indictable;
   
• whether a minimum punishment is prescribed;
   
• whether the offence usually results in a sentence exceeding three months imprisonment (“imprisonment” includes a conditional sentence of imprisonment served in the community);
   
• the potential or actual harm to the victims(s) or society in general.  

Crown counsel must also ascertain whether the offence is the subject of other policies, which would affect the decision to divert, eg. "Spousal Violence"⁴, "Aboriginal Law Issues"⁵, "Impaired Driving Cases"⁶, "Firearms and Other Offensive Weapons⁷". These policies should also be considered regarding the use of extrajudicial measures under the YCJA.

14.3.3 The Circumstances of the Offence

Existence of any of the following circumstances will preclude diversion:

• the offence involved the use of, or threatened use of, violence reasonably likely to result in harm that is more than merely transient or trifling in nature;
   
• a weapon was used or threatened to be used in the commission of the offence;
   
• the offence affected the sexual integrity of a person;
   
• the offence had a serious impact upon the victim (physical, psychological or financial);
   
• the conduct demonstrated sophisticated planning (for example, the offence was part of an ongoing criminal enterprise);
   
• a person trafficked in a controlled substance or possessed the substance for the purposes of trafficking, in or near a school, on or near school grounds or in or near any public place usually frequented by persons under the age of 18 years;
   
• a person trafficked in a controlled substance, or possessed the substance for the purpose of trafficking, to a person under the age of 18 years;
   
• a person used a person under the age of 18 years to commit a drug offence; and
   
• the motivation for committing a drug offence was primarily profit⁸.

14.4 Successful Completion of the Alternative Measures Program

If the offender successfully completes the diversion program, the criminal charge shall be withdrawn or stayed and not re-instituted. If the criminal charge was already withdrawn or stayed before the offender was diverted, the charge shall not be re-instituted. If charges were not laid before the offender was diverted, Crown counsel shall not institute or proceed with those charges.

14.5 Failure to Complete the Alternative Measures Program

If the offender fails to complete the program, criminal proceedings may be instituted or re-instituted. However, before doing so, Crown counsel should determine why the program was not completed and assess the appropriateness of instituting or re-instituting proceedings in light of those facts. The decision to institute or re-institute proceedings will require the authorization of the FPS Director or Regional Director.

14.6 Extrajudicial Measures Under the YCJA  

14.6.1 Introduction  

The Youth Criminal Justice Act (YCJA) came into force on April 1, 2003. It replaced the Young Offenders Act (YOA). A major objective of the YCJA is to reduce the use of the youth court through the increased use of extrajudicial measures. Parliament was concerned about the over-use of the youth court for less serious charges and concluded that many charges could be dealt with more quickly and effectively through extrajudicial measures. “Extrajudicial measures” are defined in s. 2 of the Act as measures other than judicial proceedings used to deal with a young person alleged to have committed an offence. Extrajudicial measures include “extrajudicial sanctions,” which are defined in s. 2 of the Act to be those set out in s. 10 of the Act.

The YCJA is significantly different from the YOA regarding non-court responses to alleged offences by young persons. The YOA permitted the use of alternative measures but provided little direction as to the appropriate use of alternative measures, the types of measures and their objectives. In contrast, the YCJA provides principles to guide decisions regarding the use of extrajudicial measures, sets out objectives for extrajudicial measures, and identifies specific types of extrajudicial measures.

Crown counsel have a key role in ensuring that Parliament achieves its objective of reducing the use of the youth court, where appropriate. Counsel should be mindful of their prosecutorial duties in light of the requirements and considerations in Part 1 of the YCJA (sections 4-12).

14.6.2 Extrajudicial Measures: Options for Crown counsel  

If a pre-charge screening program is in place in the jurisdiction, Crown counsel can advise the police that they can exercise one of the options available to them under s. 6 of the Act: take no further action; issue a warning or police caution; refer the young person to a community program or agency, with the consent of the young person; or refer the young person to an extrajudicial sanctions program.

If a pre-charge screening program is not in place, Crown counsel have the following options once the police forward the file to the Crown:

14.6.2.1 Withdrawal of the charge

Crown counsel may determine that, although there is sufficient evidence to proceed with a prosecution of the charge, withdrawal of the charge is appropriate. It may be clear, for example, that after considering the principles and objectives in sections 3, 4 and 5 of the Act, and the factors related to the seriousness of the offence, discussed below, the process of apprehension, detention and charging has been a sufficient response from the youth criminal justice system, and no further action is required. Crown counsel should also refer in this regard to the factors listed in the Decision to Prosecute policy.⁹

14.6.2.2 Referral to a community program or agency  

A referral to a community program or agency, with the consent of the young person, may be appropriate in cases where it is clear that the young person needs assistance with a problem that may have contributed to the commission of the offence. Rather than prosecuting the young person for a minor offence, Crown counsel may conclude that the matter can be addressed more appropriately outside of the criminal justice system and a referral can be made to the appropriate program or agency. For example, a young person who has committed a minor offence may require help from a substance abuse program. While the Act does not expressly codify this referral power for prosecutors, as it does for the police, it is within the Crown’s discretion to make such referrals. Prior to making such referrals, however, Crown counsel may wish to consult individuals and experts who have relevant information about existing community programs.

14.6.2.3 Crown caution  

Section 8 of the Act states that the Attorney General may establish a program authorizing prosecutors to administer cautions to young persons instead of starting or continuing judicial proceedings under the YCJA. The Attorney General of Canada formally established a program of Crown cautions for young persons in April 2003. The Attorney General’s order states that federal prosecutors are to consider the use of Crown cautions for young persons in relation to minor offences. The order is attached as Appendix C.

A Crown caution is a formal warning from the prosecutor that, although there are sufficient grounds to prosecute the offence, the prosecutor will not be proceeding with the charge. The caution advises the young person to avoid involvement in crime in the future.

While a Crown caution can be provided verbally to the young person by the prosecutor, a Crown caution letter should also be provided to the young person. A notice to the parent or guardian that the young person has been cautioned, as well as a copy of the caution letter, should also be provided to the parent or guardian of the young person wherever possible. Once Crown counsel has confirmed that the young person has received the caution, and has documented the file accordingly, the charge or charges should be withdrawn or stayed, depending on the circumstances. See Appendix D for the format of a Crown caution letter.

14.6.2.4 Extrajudicial sanctions  

Extrajudicial sanctions are the most serious response within the range of extrajudicial measures. Unlike the other types of extrajudicial measures, an extrajudicial sanction requires the young person to accept responsibility for the act that forms the basis of the offence, and to comply with the terms and conditions of the sanction. Failure to comply can result in the prosecution of the offence. Also, unlike other types of extrajudicial measures, the history of a young person’s involvement in extrajudicial sanctions can be raised during the young person’s sentencing for a subsequent offence in certain circumstances.

An extrajudicial sanction can be used only if the young person cannot be adequately dealt with by a warning, caution or referral under sections 6, 7, or 8, because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances. The additional conditions that must be satisfied under s. 10(2) of the YCJA before an extrajudicial sanction can be used are virtually identical to the conditions that had to be satisfied under s. 4(1) of the YOA before an alternative measure could be used.

By virtue of s. 165(5) of the YCJA, any program of alternative measures authorized under the YOA was deemed, as of the coming into force of s. 165(5) of the YCJA, to be a program of extrajudicial sanctions authorized for the purposes of the YCJA. Like alternative measures under the YOA, extrajudicial sanctions programs under the YCJA include letters of apology, essays, anti-shoplifting educational programs, victim-offender reconciliation programs, personal service to the victim, and community service.

14.6.3 General Principles for the Use of Extrajudicial Measures  

In addition to the principles set out in Section 3 of the YCJA, which apply to the entire Act, Crown counsel must be mindful of the following principles in Section 4 when considering whether to use an extrajudicial measure and in determining which extrajudicial measure option to use:

• Extrajudicial measures are often the most appropriate and effective way to address youth crime;
   
• Extrajudicial measures allow for effective and timely interventions focused on correcting offending behaviour; and
   
• Extrajudicial measures should be used if they would be adequate to hold the young person accountable.  

Crown counsel should also remain cognizant of the principle in s. 4(d) of the YCJA, which states that extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour.

 Determining whether an extrajudicial measure would be adequate to hold the young person accountable requires Crown counsel to determine whether an extrajudicial measure can provide meaningful consequences that are proportionate to the seriousness of the offence and to the degree of responsibility of the young person and that promote the young person’s rehabilitation. Additional factors to consider in making this determination are discussed below at 14.6.5 and 14.6.6.

Under s. 4 (c), extrajudicial measures are presumed to be adequate to hold a young person accountable if the young person has committed a non-violent offence and has not previously been found guilty of an offence. This presumption is a strong direction from Parliament that Crown counsel are expected to use extrajudicial measures rather than the court to deal with non-violent offenders who have not previously been found guilty of an offence. However, Crown counsel may find that there are circumstances related to the seriousness of the offence that rebut the presumption in some cases.

Further, under s. 4 (d), extrajudicial measures may be used even if the young person has previously been dealt with by extrajudicial measures or has previously been found guilty of an offence. The use of another extrajudicial measure in these circumstances does not mean that the previous extrajudicial measure was a failure, or that another extrajudicial measure would not be adequate to hold the young person accountable for the current offence.

Section 5 of the YCJA further provides that extrajudicial measures should be designed to:

• Provide an effective and timely response to offending behaviour;
   
• Encourage young persons to acknowledge and repair the harm caused to the victim and the community;
   
• Encourage the involvement of families and the community;
   
• Provide an opportunity for victims to participate and to receive reparation;
   
• Respect the rights and freedoms of young persons; and
   
• Be proportionate to the seriousness of the offence.

14.6.4 Determining Whether an Extrajudicial Measure Would Be Adequate to Hold a Young Person Accountable

In determining whether any of the following four extrajudicial measures are adequate to hold a young person accountable (withdrawal of the charge; referral to a community program; Crown caution; or extrajudicial sanction), Crown counsel must consider sections 3, 4 and 5, and also assess: (a) the seriousness of the offence; and (b) the nature and number of previous offences or any other aggravating circumstances.

14.6.5 Factors related to the seriousness of the offence, and the history of previous offences or any other aggravating circumstances

• whether the offence is summary or indictable;
   
• whether the offence involved the use of, or threatened use of, violence reasonably likely to result in harm that is more than transient or trifling in nature. An offence involving bodily harm is not necessarily too serious to be dealt with by extrajudicial measures. However, the more serious the harm, the less likely that it should be dealt with by extrajudicial measures.
   
• the potential or actual harm or damage to the victim (physical, psychological or financial) and/or to society;
   
• whether the incident affected the sexual integrity of a person;
   
• whether a weapon was used or threatened to be used in the commission of the offence. As youth cases have demonstrated (water balloons and spit-balls have been found to be weapons), it is important to consider the actual danger represented by the weapon.
   
• whether the offence is a drug offence. (If so, see below at 14.6.6 for specific factors to consider in relation to Crown cautions and extrajudicial sanctions.)
   
• if the offence is a drug offence, the nature and deleterious consequences of the drugs involved should be considered (Again, see 14.6.6 for specific drug offence considerations and the possible use of extrajudicial measures.)
   
• if the drug trafficking or possession of the drug for the purpose of trafficking occurred in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years old, this should be considered an aggravating factor ; ¹⁰
   
• whether the offence is a property offence. If so, did the young person intentionally cause or attempt to cause substantial property damage or loss? Should the young person have reasonably foreseen that substantial property damage would be caused by the offence?
   
• whether the offence is an administration of justice offence, such as breach of probation. If so, would the non-compliance (e.g., failure to attend school; violation of curfew) have been an offence outside the context of a probation order? If not, it should be considered less serious and more likely to be dealt with appropriately through extrajudicial measures or through a review of the original sentence to determine whether the conditions should be changed.
   
• the role of the young person in the incident. For example, if the young person was the leader who planned and directed the offence, then his/her degree of responsibility is greater. However, this factor is secondary to the seriousness of the offence.
   
• whether the young person was a victim in the commission of the offence (e.g., a sexually exploited juvenile prostitute; a young person committing a drug offence who is being directed or exploited by an adult drug dealer). If so, it is more likely that an extrajudicial measure should be used.
   
• whether the young person has a history of committing offences. If so, what is the nature and number of previous offences? Although a history of offences may indicate that a more serious consequence is required to hold the young person accountable, this factor is secondary to the seriousness of the current offence.
   
• whether the young person has already displayed remorse (e.g., through voluntary reparation to the victim or to the community) or agreed to do so.
   
• If the young person were to proceed through the court system, what is the likelihood that the sentence would be more severe than what is available through extrajudicial measures? If the sentence is expected to be less severe, Crown counsel should consider whether proceeding to court would be an effective use of Crown and judicial time and resources.

14.6.6 Choosing the Appropriate Extrajudicial Measure

In addition to the principles and objectives in sections 3, 4 and 5 of the Act and the factors outlined in section 14.6.5 above, specific considerations apply to Crown cautions and to extrajudicial sanctions. These considerations are discussed below.

14.6.6.1 Crown cautions: specific considerations

The choice between using a Crown caution or an extrajudicial sanction depends on several factors. As stated in s. 10(1) of the YCJA, a sanction may be used to deal with a young person alleged to have committed an offence only if the young person cannot be dealt with by a warning, caution or referral in sections 6, 7 or 8 because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances. Crown counsel should determine the seriousness of the offence by considering the factors discussed above at 14.6.5. The less serious the offence, the more likely it is that a Crown caution should be used. The more serious the offence, the more likely it is that an extrajudicial sanction should be used.

A Crown caution should not be used for offences in which the young person intentionally caused or attempted to cause bodily harm or should have reasonably foreseen that bodily harm would be caused by the offence.

Crown cautions should be adequate to hold a young person accountable for a minor drug offence.

However, a Crown caution is unlikely to be adequate to hold a young person accountable for the following drug offences:

• possession of large amounts of marijuana or hashish;
   
• possession of cocaine, ecstasy or heroin;
   
• trafficking in a controlled substance, or possession of the controlled substance for the purpose of trafficking.  

In certain circumstances, some of these drug offences could be dealt with by an extrajudicial sanction.

14.6.6.2 Extrajudicial sanctions: specific considerations  

There is no limit to the number of times that a young person may be dealt with through extrajudicial sanctions.

If the Crown determines that a less serious extrajudicial measure is inappropriate, Crown counsel should still consider whether an extrajudicial sanction would be adequate to hold the young person accountable for his or her offending behaviour. Crown counsel must also remain cognizant of the principle that an extrajudicial measure is presumed adequate to hold a young person accountable if the young person has committed a non-violent offence and has not previously been found guilty of an offence. It is important to bear in mind, however, that presumptions are rebuttable. In applying the factors in 14.6.5 and the relevant principles under the YCJA, Crown counsel will sometimes conclude that a sanction is not appropriate to hold the young person accountable in the circumstances.

When Crown counsel imposes a sanction on a young person, the young person’s file should be documented accordingly.

Extrajudicial sanctions can be used to deal with some drug offences that are too serious to be dealt with by a Crown caution. However, the following drug offences and circumstances are unlikely to be appropriate for extrajudicial sanctions:

• possession of large amounts of marijuana or hashish, or drugs such as cocaine, heroin or ectasy;
   
• using another person more than two years younger than the young person alleged to have committed the offence to commit or assist in the commission of a drug offence;
   
• trafficking in a controlled substance, or possession of the substance for the purpose of trafficking (an exception may arise where the young person shares a very small quantity of the substance with a peer for little or no consideration).  

A young person’s refusal to consent to, or failure to follow through on, an extrajudicial measure regarding substance abuse treatment should not be interpreted as an unwillingness to participate in extrajudicial measures in general, or as an indication that an extrajudicial measure would not be adequate to hold the young person accountable for the offence. The refusal or failure could be a factor in choosing a particular measure but it should not be considered a bar to all extrajudicial measures.

14.7 The Canadian Environmental Protection Act, 1999  

The Canadian Environmental Protection Act, 1999, (CEPA) contains special provisions for the use of alternative measures in the environmental prosecution context. The Department of the Environment has developed a program of alternative measures which has been authorized by the Attorney General pursuant to s. 296(1)(a) of the CEPA, 1999¹¹. Section 296(1)(d) of the CEPA, 1999 sets out five factors counsel must consider in determining whether alternative measures are appropriate.

14.8 Appendix A
ATTORNEY'S GENERAL ORDER  

Section 717 of the Criminal Code provides, in part, as follows:

717.(1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:

1. the measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General's delegate or authorized by a person, or a person within a class of persons, designated by the lieutenant governor in council or a province;
    
2. the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim;
    
3. the person, having been informed of the alternative measures, fully and freely consents to participate therein;
    
4. the person has, before consenting to participate in the alternative measures, been advised of the right to be represented by counsel;
    
5. the person accepts responsibility for the act or omission that forms the basis of the offence that the person is alleged to have committed;
    
6. there is, in the opinion of the Attorney General or the Attorney
    
7. the prosecution of the offence is not in any way barred at law.

I, _____________, Minister of Justice and Attorney General of Canada, pursuant to section 717 of the Criminal Code, do hereby authorize adult alternative measures programs which are consistent with the policy criteria contained in the "Alternative Measures (Diversion)” policy in the Federal Prosecution Service Deskbook and Schedule “A”, attached hereto.

I do hereby further authorize the Deputy Minister of Justice and Deputy Attorney General of Canada as my delegate for the purpose of amending the policy and ensuring the effective implementation of the policy.

Dated at the City of Ottawa, Ontario, this day of , 20

__________________________

Minister of Justice and Attorney General

14.9 Appendix B
SCHEDULE A ALTERNATIVE MEASURES (DIVERSION) PROGRAMS  

For the purposes of s. 717(1)(a) of the Criminal Code , acceptable programs of alternative measures include the following:

• any program approved by the Attorney General of a province;
   
• any program approved by a territorial government;
   
• referral to a community or aboriginal justice committee;
   
• community service work;
   
• restitution or compensation in cash or services;
   
• referral to a specialized program (e.g. life skills, drug or alcohol treatment); and
   
• other reasonable alternatives not inconsistent with the objectives of the policy.  

14.9.1 APPENDIX C
ATTORNEY’S GENERAL ORDER: CROWN CAUTIONS FOR YOUNG PERSONS  

Section 8 of the Youth Criminal Justice Act provides:

The Attorney General may establish a program authorizing prosecutors to administer cautions to young persons instead of starting or continuing judicial proceedings under this Act.

I, Martin Cauchon, Minister of Justice and Attorney General of Canada, pursuant to section 8 of the Youth Criminal Justice Act, do hereby establish a program of Crown cautions and authorize Crown counsel to administer cautions to young persons instead of starting or continuing judicial proceedings, in accordance with the policy, principles and objectives in the YCJA, in particular, in accordance with the policy and principles in sections 3, 4, 5 and 10 of the YCJA.

I do hereby further authorize the Deputy Minister of Justice and Deputy Attorney General of Canada as my delegate for the purpose of developing and implementing policy concerning Crown cautioning programs that is consistent with the YCJA. In keeping with that policy, federal prosecutors are to consider using Crown cautions in relation to only minor offences alleged to have been committed by young persons.

Dated at the City of Ottawa, Ontario, this 23 day of April , 2003.

M. Cauchon

______________________________________

Minister of Justice and Attorney General

14.9.2 APPENDIX D
CROWN CAUTION LETTERS  

Consistent with the policy criteria set out in Section 14.6 of this policy, Crown counsel may administer Crown cautions under s. 8 of the Youth Criminal Justice Act, in the format below, modified as necessary to fit the circumstances.

Section 8

Youth Criminal Justice Act

Crown Caution to a Young Person

To: (name of young person)

The Federal Prosecution Service has received a report from {police agency}. In this report, police officers indicate that they have reasonable grounds to believe that you have broken the law by:

{set out offence(s)}.

While there is sufficient information to proceed with a prosecution, the Crown has decided, under section 8 of the Youth Criminal Justice Act, to issue a formal caution to you rather than proceeding with charges for this offence.

If you break the law in the future, more serious consequences, including charges and prosecution with potentially serious penalties, may follow.

You are required to contact the Crown’s office, or your probation officer or youth worker, to confirm receipt of this caution letter.

(date)

(place)

{name of person signing on behalf of the Attorney General}

Contact # for further information___________________

14.9.3 APPENDIX E
Notice to Parent or Guardian

Crown counsel may notify a parent or guardian of the young person that a Crown caution has been administered in the following format, modified as necessary to fit the circumstances.

Youth Criminal Justice Act

Notice to the Parent or Guardian that a Young Person has been given a Crown Caution

To:{name of parent, guardian or adult with legal responsibility for young person}

This letter concerns {name of young person}.

The Federal Prosecution Service has received a report from {police agency}. In this report, police officers indicate that they have reasonable grounds to believe that (name of young person) has broken the law by:

{set out offence(s)}

While there is sufficient information to proceed with a prosecution, the Crown has decided, under section 8 of the Youth Criminal Justice Act, to issue a formal caution to (the young person) rather than proceeding with charges for this offence.

Please understand that if (the name of the young person) breaks the law in the future, there may be more serious consequences, including charges and prosecution with potentially serious penalties.

{date}

{place}

{name of person signing on behalf of the Attorney General}

Contact # for further information___________________

14.9.4 APPENDIX F
ATTORNEY’S GENERAL ORDER  

Section 10 of the Youth Criminal Justice Act provides, in part, as follows:

10. (2) An extrajudicial sanction may be used only if

1. it is part of a program of sanctions that may be authorized by the Attorney General or authorized by a person, or a member of a class of persons, designated by the lieutenant governor in council of the province;
    
2. the person who is considering whether to use the extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society;
    
3. the young person, having been informed of the extrajudicial sanction, fully and freely consents to be subject to it;
    
4. the young person has, before consenting to be subject to the extrajudicial sanction, been advised of his or her right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
    
5. the young person accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed;
    
6. there is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and
    
7. the prosecution of the offence is not in any way barred at law.

(3) An extrajudicial sanction may not be used in respect of a young person who

1. denies participation or involvement in the commission of the offence; or
    
2. expresses the wish to have the charge dealt with by a youth justice court.

I, ___________________, Minister of Justice and Attorney General of Canada, pursuant to section 10 of the Youth Criminal Justice Act, do hereby authorize extrajudicial sanctions programs for young persons, which are consistent with the policy criteria contained in the Extrajudicial Measures policy for young persons in the Federal Prosecution Service Deskbook.

I do hereby further authorize the Deputy Minister of Justice and Deputy Attorney General of Canada as my delegate for the purpose of amending the policy and ensuring the effective implementation of the policy.

Dated at the City of Ottawa, this day of , 2003.

______________________________________

Minister of Justice and Attorney General

14.9.5 APPENDIX G
Extrajudicial sanctions under the YCJA  

For the purposes of s. 10 of the Youth Criminal Justice Act, acceptable programs of extrajudicial sanctions include the following:

• any program approved by the Attorney General of a province;
   
• any program approved by a territorial government;
   
• any program approved by the Attorney General of Canada;
   
• referral to a community, aboriginal or youth justice committee;
   
• community service work;
   
• victim-offender reconciliation;
   
• restitution or compensation in cash or services;
   
• mediation;
   
• referral to a specialized program (e.g. life skills, drug or alcohol treatment); and
   
• any other reasonable alternatives not inconsistent with the objectives of the FPS policy.

1 Investigative agencies also "divert" alleged offenders by exercising their discretion not to lay charges. This policy deals only with situations in which Crown counsel play a role in the diversion decision.

2 Part V, Chapter 15.

3 Where government departments have compliance programs for regulatory offences, diversion will usually be considered within the context of the program. Crown counsel should bear in mind that many offenders referred for prosecution for having committed regulatory offences will have already been considered inappropriate for participation in a compliance program.

4 Part VI, Chapter 28.

5 Part VI, Chapter 25.

6 Part VI, Chapter 27.

7 Part VI, Chapter 31.

8 In unusual circumstances, diversion may be considered despite the presence of this factor. However, authorization must be obtained from the Federal Prosecution Service Director or Regional Director.

9 Part V, Chapter 15.

10 This factor should be applied with particular care in the case of young persons since it is clearly more aggravating for an adult trafficker to attend a school for the purpose of selling drugs to youths than for a young person to sell drugs to his peers at school.

11 Pursuant to Part V, Chapter 16, “Decisions Made by, and on Behalf of, the Attorney General,” the authorization of the program is made by the Assistant Deputy Attorney General, Criminal Law. The program is described in a document entitled Guidelines for Negotiating and Monitoring Environmental Protection Alternative Agreements under the Canadian Environmental Protections Act.

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