The goal of many who face a criminal charge is to escape without a criminal conviction. When charged with a criminal offence, it is easy to get caught up in the immediate consequences, and not consider the future repercussions of one’s decisions. This short-term focus is often apparent during a guilty plea, where an accused opts to plead guilty early in a proceeding with an expectation that in turn, they may receive a sentence which would appear lenient compared to one imposed after being found guilty at trial. Often is the case that an accused will make the decision to plead guilty after consultation with a legal professional, and therefore this decision could be view as an informed decision.
In recent years there has been a significant push to divert charges from the criminal prosecution system and instead, allow the accused to attend programming or counselling to address the underlying behavioural issue.1 After completion of either programming or counselling, the crown in many cases will enter a stay of proceedings. This may appear to be an optimum result for an accused, and therefore an accused will agree to have their charge(s) diverted as soon as the option presents itself. In the end, the accused ends up without a criminal conviction, so what can possibly be wrong with this scenario?
The often-overlooked issue when diverting a matter from criminal prosecutions is whether the accused is making an informed decision. While an accused might agree to divert their charge, it is simply assumed that the accused is making an informed decision. This assumption is frequently incorrect as often the factors which support diverting a criminal charge are the same which inhibit an informed decision.
When is Diversion Offered?
In Manitoba, the authority to divert a criminal charge is found in the Restorative Justice Act2 and falls to the discretion of the crown. While all offences are potentially eligible for diversion, it is rare that it would be offered for crimes involving significant violence or crimes that are otherwise considered very serious.3
Diversion can be offered at any time during a criminal prosecution. The option to divert a charge normally arises at three points in the process; before a charge is laid (Pre-charge diversion), once a charge as been laid (Post-charge diversion), and after a guilty plea has been entered (Post-plea diversion). Post-plea diversion is offered as a sentence or in conjunction with a sentence. In a Post-plea diversion situation, there will normally have been ample time for an accused to have received legal advice and therefore could be considered an informed decision. While it is possible that an accused would agree to Post-plea diversion without legal advice, for the purposes of this article it will be assumed that in a Post-plea diversion scenario the accused would have made an informed decision.
In many cases, an accused is offered diversion at their first appearance in court. Since diversion is normally offered for less serious offences, quite often the accused who are appearing were released on a promise to appear or an undertaking and have yet to seek legal advice. While an accused could potentially seek legal advice and retain a lawyer prior to their first appearance, it may be difficult for an accused to justify the cost of retaining a lawyer, especially for charges of a less serious nature. This results in uninformed and unrepresented accused appearing alone at their first court date.
During this first court appearance is when an accused is informed of their ability to apply for legal aid if they are not able to retain their own private lawyer. In order to qualify for legal aid, there are two main requirements, financial and severity. Regardless of the financial situation of an accused, there must be a likelihood that the crown will be seeking a custodial sentence to meet the severity requirement. Therefore, in the cases where the crown is offering to divert a charge, applicants to legal aid would be refused based solely on the severity requirement. This now leaves the accused in a precarious position, they can not afford nor can justify the cost of legal representation, they can not receive assistance from legal aid because the crown is not seeking a custodial sentence, and they are being offered an opportunity to walk away from the charge without a criminal record. It should come as no surprise that many accused opt to agree to diversion in this situation.
The question still remains, was the accused decision to divert their charge an informed decision? We know that prior to laying a charge, the crown must believe that there is a “reasonable likelihood” of conviction. Are we willing to rely on the crown’s interpretation of the evidence and their belief that they would be able obtain a conviction and therefore diversion is the best option for the accused? Every wrongful conviction or acquittal of an accused at trial would suggest that complete reliance on the crown’s interpretation of the evidence and belief in the likelihood of a conviction would be in error. While the crown is often correct in their assessment, and diversion may be in the best interest of an accused, without legal advice, and accused risks completing a diversion program which may have been unnecessary because there might have be a defence with a high likelihood of success or some form of misconduct which would have resulted in either a stay or acquittal.
In certain circumstances, the option to complete a diversion program is offered prior to the crown officially laying charges. While the opportunity to avoid the court system altogether is appealing, rarely does an accused seek legal advice when they are not facing a criminal charge. This creates a situation where an accused is more likely than not to make an uninformed decision to accept diversion. Unlike post-charge diversion where charges are formally laid, and therefore the crown must believe that there is a reasonable likelihood of conviction, pre-charge diversion may lack this review process. While review of the circumstance which brought a person into contact with the police may occur, one has to question whether there was ever enough evidence to meet the reasonable likelihood of conviction standard, and if so, why were no charges laid. It may not be a far stretch to see how this process could be used as a way to get an accused to complete programming or counselling when the evidence otherwise would not suggest a conviction.
Consequences of Diversion
Society realizes that people are not perfect, and the diverting of a non-serious criminal charge is comparable to giving a person a second chance. While it is possible that an accused can be offered diversion multiple times, in reality this is not the case, especially if the new charge they face is similar to the charge which has already been diverted. The argument against offering diversion multiple time goes something like, if a person has not learned to change their behaviour after completing programming and/or counselling, will having them complete the same program again actual correct their behaviour? This method of thinking goes to support the position that diversion may be a one-time option. What is concerning is where the situation arises that an accused has completed diversion for a charge that they may otherwise have been acquitted for, and then on a second offence, no longer has the opportunity to escape without a criminal conviction. An uninformed decision to accept diversion can have future consequences.
Future consequences are not simply limited to future offences. Previously asserted was the idea that many accused are focused solely on the immediate situation and lack foresight as to the future consequence of their agreement. This also occurs in cases of domestic violence where a common condition is that upon the completion of the diversion program, the accused must sign a peace bond containing a “no contact” condition. Lacking legal advice and focused on dealing with the criminal charge(s) at hand, many accused fail to realize the extent of the whole agreement and It is only after completing the diversion program than an accused’s mind turns to the peace bond conditions. Conditions which, if explained properly at the onset, may have altered the decision to accept diversion.
While diversion may result in no criminal conviction being recorded, it is basically a conviction without the hindrance of a criminal record. Except in cases of post-plea diversion, an accused does not have to admit guilt in court, yet a requirement for many diversion programs is that an accused “take personal responsibility for their actions”.4 To take personal responsibility for one’s actions is basically an unofficial way of admitting guilt. This requirement is premised on the idea that to correct one’s behaviour, one must first realize that there is a problem. An accused is often not aware of this requirement at the time that they agree to have their charge diverted and forces them into the situation where they can admit guilt, even falsely, and emerge with no criminal record or lose their opportunity to have their charge diverted. History has shown, the threat of a harsh sentence is enough motivation for an accused to plead guilty to a different offence in which they were factually innocent to avoid a potentially harsher sentence. In an attempt to avoid this behaviour, the criminal justice system has safeguards in place that attempt to identify false guilty pleas. These safeguards are not in place in the diversion process and it would not take a large stretch of the imagination to see a situation where an accused would falsely take responsibility in their attempt to avoid a criminal conviction.
Diversion can cost an accused money. While there are some programs that do offer these services for free, many either charge a flat fee or a fee on a sliding scale based on income. To ensure payment of the fee, many programs will refuse to issue a completion letter before the fee is paid and without the completion letter, the crown will rarely stay the charge(s).
While diversion often results in no criminal conviction being recorded, the consequences of diversion may closely resemble a sentence. Diversion can cost an accused money, quite like a fine. Completing a diversion program is time consuming, often like the programs required when a person is on probation, and the conditions that an accused must obey while completing a diversion program are similar to those which one may find on a probation order. Short of a criminal record, diversion could easily be considered a conviction without a record.
As a society we have recognized the importance of an accused having the opportunity to make informed decisions. This is evident by the fact that we provide free cursory legal advice upon being arrested and offer legal assistance to those who can not afford it, yet we have developed a system in which an accused is enticed to complete what may otherwise be considered a sentence simply by not recording the incident as a conviction on their criminal record.
Lower severity offences which often attract an offer of diversion, at the same time act as barriers for an accused to received legal advice. Those who can afford lawyers have a hard to justifying the cost, and those who can not afford a lawyer do not qualify for legal aid due because the crown is not seeking a custodial sentence. This creates the situation where an accused decision to agree to diversion is often uninformed.
A solution to this problem would be to provide free cursory advice to an accused once a diversion offer is made. This advice should entail at the minimum, a brief review of the disclosure provided by the crown to determine if there are significant deficiencies in the crowns case, whether there may be a defence that would have a high likelihood of success or whether there was any misconduct such as Charter breaches. To alleviate the financial cost of providing this cursory review and informative service, the justice system could take advantage of the many law students who are seeking real life legal experience. While law students would not actually provide legal advice, they would be more than capable to determine if there are glaring issues within the evidence, and if found, could inform the accused that it may be in their interest to seek further legal advice.
While the diversion system is one that is deserving of praise and is often in the accused’s best interest, it is also subject to potential abuse. The first step in making sure that the diversion system is not abused is to make sure that those who are agreeing to participate are fully informed of its procedures, possible consequences, and is truly in an accused’s best interest.
1 Restorative Justice Act, SM 2014, c 26, CCSM c R119.6, s 2(1)(b).
2 Supra, note 1.
3 Manitoba, Department of Justice Public Prosecutions, Restorative Justice and Diversion, Policy Directive, (Guideline No 5: Com: 1.1, May 2015).
4 Manitoba Justice, Manitoba’s Strategy for Victim-Centred Restorative Justice, (online: <www.gov.mb.ca/justice/crown/pubs/restor_jus_booklet.pdf>).