NCJ Number
55010
Journal
Osgoode Hall Law Journal Volume: 14 Issue: 3 Dated: (DECEMBER 1976) Pages: 759-767
Date Published
1976
Length
9 pages
Annotation
THIS PAPER OUTLINES WEAKNESSES AND DANGERS OF DIVERSION AND DISPUTE-RESOLUTION PROGRAMS AND ARGUES THAT REFORMERS CHAMPIONING THESE ALTERNATIVES ERRONEOUSLY BLAME THE CANADIAN COURTS FOR HIGH RECIDIVISM RATES.
Abstract
DESCRIBING DIVERSION AS ANY NONJUDICIAL PROCEDURE THAT AIMS AT REDUCING THE ROLE OF THE CRIMINAL COURT BY DIVERTING CASES AWAY FROM ITS PURVIEW AND PLACING EMPHASIS ON RESTITUTION TO THE VICTIM AND USE OF MORE INFORMAL AND NONADVERSARIAL METHODS OF HANDLING OFFENDERS, THIS PAPER PRESENTS THE ARGUMENT THAT DIVERSIONARY ALTERNATIVES ARE IN AN EXPERIMENTAL PHASE, ARE NOT BACKED BY HISTORICAL EXPERIENCE AND LEGAL PRECEDENT, AND LACK THE PROCEDURAL AND EVIDENTIARY REQUIREMENTS OF THE LAW NECESSARY TO PROTECT THE RIGHTS OF THE ACCUSED. COMMUNITY-BASED DISPOSITIONAL MEASURES OR DIVERSIONARY PRACTICES MAY REFLECT THE PUBLIC'S CONCEPTION OF CRIMINAL LAW AS A VENGEANCE TACTIC. DIVERSIONARY PRACTICES AND DISPUTE-RESOLUTION PROGRAMS CAN BE INAPPROPRIATE OR EVEN DANGEROUS FOR A NUMBER OF REASONS: THERE IS NO GUARANTEE THAT THE ACCUSED WHO CONSENTS TO DIVERSION WILL BE FULLY COGNIZANT OF HIS LOSS OF RIGHTS, VICTIMS MAY BE RELUCTANT TO MEET WITH OFFENDERS IN A DISPUTE-RESOLUTION COURT, OFFENDERS OR VICTIMS COULD BE JEOPARDIZED IN JUDGES' DECISIONMAKING IF THEY DO NOT AGREE TO PRETRIAL DIVERSION, THE ELEMENT OF DETERRENCE CREATED BY CRIMINAL COURT SANCTIONS COULD BE SUBSTANTIALLY REDUCED, UNIFORMITY IN HANDLING ALL OFFENDERS WILL BE DIFFICULT TO MONITOR, AND SOME DIVERSION PROGRAMS MAY APPLY TO PERSONS WHO WOULD NORMALLY BE DEALT WITH OUTSIDE THE ADVERSARIAL PROCESS AND, THUS, THE NET OF SOCIAL CONTROL WOULD GROW. IN ADDITION, PROPONENTS OF DIVERSION, DO NOT DEFINE WHAT CONSTITUTES A FIRST OFFENDER OR ADDRESS THE QUESTION OF RECIDIVISM.