DIVERSION CONTROVERSY (FROM NEW DIRECTIONS IN SENTENCING, P 194-212, 1980, BY BRIAN A GROSMAN - SEE NCJ-71049)

• NCJ Number: 69404
• Author(s): T ELTON
• Date Published: 1980
• Length: 19 pages
• Sale Source: Butterworth
• Language: English
• Country: Canada

Annotation

THE DEVELOPMENT OF DIVERSION POLICIES IN CANADA ARE DISCUSSED, INCLUDING FEDERAL AND PROVINCIAL ROLES, POLICE AND PROSECUTORIAL DIVERSION, THE POSSIBILITY OF ABUSE, AND CONFLICTS WITH THE CRIMINAL CODE.

Abstract

CONSTITUTIONAL JURISDICTION BETWEEN THE CANADIAN FEDERAL AND PROVINCIAL GOVERNMENTS CONCERNING DIVERSION IS DELINEATED AS FOLLOWS: (1) THE ENCOURAGEMENT, MONITORING, AND ADMINISTRATION OF DIVERSION PROGRAMS ARE PROVINCIAL RESPONSIBILITIES; AND (2) THE DETERMINATION OF MINIMUM DIVERSION STANDARDS AND PROCEDURES ARE FEDERAL RESPONSIBILITIES. AN EXAMINATION OF THE PROBLEMS OF LEGALLY DEFINING DIVERSION AND ITS PURPOSE PROVIDES THE FOLLOWING CRITERIA FOR ITS DEFINITION: REFERENCE SHOULD BE MADE ONLY TO PROCEDURES AND PROGRAMS OCCURRING BEFORE TRIAL; THE DIRECTION OF DIVERSION SHOULD BE TOWARD LESS SERIOUS OFFENSES WHERE OPPORTUNITIES EXIST FOR PRETRIAL RESOLUTION; AND REALISTIC GOALS SHOULD BE SET FOR DIVERSION, WITH THE SUGGESTED PRIMARY OBJECTIVE BEING THE REDUCTION IN NUMBERS OF LESS SERIOUS OFFENSES HEARD BY THE COURTS. ALSO, MORE ATTENTION SHOULD BE GIVEN TO DIVERSION POLICIES EXERCISED BY THE POLICE AT THE TIME OF ARREST (AS OPPOSED TO PROSECUTORIAL DIVERSION DECISIONS). WHETHER DIVERSION IS AN ABUSE OF JUDICIAL DUE PROCESS IS CONSIDERED THROUGH AN EXAMINATION OF THE HISTORICAL DEVELOPMENT OF DUE PROCESS DOCTRINE. MINIMUM GUIDELINES SHOULD BE ESTABLISHED FOR DIVERSION PROGRAMS TO ENSURE THAT THE CONTENT OF DIVERSION AGREEMENTS FASHIONED THROUGH THE DISCRETIONARY POWERS OF THE PROSECUTOR NOT BE OPPRESSIVE, AND TO GUARANTEE THAT CIRCUMSTANCES BE DEFINED AS TO WHEN CHARGES SHOULD BE INVOKED, IF AT ALL. POTENTIAL CONFLICTS OF DIVERSION POLICIES WITH THE CRIMINAL CODE ARE DISCUSSED IN RELATION TO THE FOLLOWING SITUATIONS: (1) INTIMIDATION OF THE UNEDUCATED OR THE TIMID OFFENDER, (2) USE OF THE THREAT OF CRIMINAL PROSECUTION TO EXTORT A DIVERSION AGREEMENT, (3) OBSTRUCTION OF JUSTICE BY OPTING FOR DIVERSION, AND (4) THE POSSIBILITY THAT DIVERSION AGREEMENTS COMPOUND AN OFFENSE IN THAT THEY CONSTITUTE AN AGREEMENT NOT TO PROSECUTE IN EXCHANGE FOR THE RETURN OF THE GOODS OR SERVICES TAKEN BY THE ACCUSED. THE FUTURE OF DIVERSION DEPENDS LARGELY ON HOW SUCCESSFULLY IT IS INTEGRATED INTO THE OVERALL CRIMINAL JUSTICE SYSTEM IN CANADA. A LIST OF 32 NOTES ARE PROVIDED.