Pre-trial diversion to alternative measures at the discretion of Crown Counsel has recently come into force in British Columbia. Now, once a police officer's Report to Crown has been received by Crown Counsel, and it is determined that there is likely enough evidence to convict, Crown will make an assessment of whether or not it is in the public interest to: prosecute the case in court or refer it to alternative measures. Paramount in this decision is consideration of the needs of the person alleged to have committed the offence, the interests of society and of the victim, and whether diversion would endanger society.
In making this assessment Crown will balance the factors favouring diversion with those factors favouring prosecution through the court system. On the pro-diversion side would be such factors as: whether the use of alternative measures would achieve the same deterrent effect as prosecuting the case through the court system, but without the time and expense of so doing; whether the penalty in the event of prosecution in court would be insignificant; whether the loss or harm as a result of the offence could be described as minor; and whether the offence was a result of a single incident.
However, the Crown would favour prosecution if the offence were of a serious nature, for example: threatening the safety or exceeding the tolerance of the public; if it would result in a significant sentence were a conviction made; causing considerable physical and/or psychological harm to a victim; involving the use of a weapon, or its threatened use; an offence against a vulnerable person or a person to whom the offender was in a position of authority or trust; were it demonstrably premeditated; if it were likely to be continued or repeated; was committed while the offender was under an order of the court; or if it was an offence that was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.
If, after applying the above statutory test and making all the necessary criminal and Corrections record checks, Crown still feels alternative measures are appropriate, an information will be laid, which in the case of spousal assault means the six-month limitation period is no longer in effect and the case will be referred to a local contractor (i.e., Corrections approved agent) for further assessment.
The contractor will conduct an in-person screening interview with the alleged offender. During this interview, the contractor will determine the suitability of the offender for alternative measures and whether the individual would be willing and able to complete the specific terms and conditions that are being recommended.
In order for the alternative measures to be implemented, the offender must agree with "the circumstances of the offence as outlined in the police report, not deny 'participation or involvement in the commission of the offence' and 'accept responsibility for the act or omission that forms the basis of the alleged offence.'" Any participation in alternative measures by the offender is completely voluntary. The offender is informed in this interview that non-compliance or partial compliance with the terms and conditions of the alternative measures may result in prosecution of the original offence; that if he were to re-offend, his alternative measures record may be introduced into evidence or be referred to in a pre-sentence report for up to two years after completion of the current alternative measures plan; and that any "'admission, confession or statement accepting responsibility' for an offence is not admissible in evidence against the person making it in any civil or criminal proceeding."
The local contractor is also to consult with the victim. While the purpose of such consultation is "to solicit the victim's opinion respecting alternative measures and to encourage their participation, where possible and appropriate," there is no explicit indication that the victim can demand that the case be prosecuted rather than diverted. Rather, it is explained that if the offender meets the criteria of alternative measures and agrees to accept the terms and conditions of such a plan, then Crown will enter a stay of proceedings and implement an alternative measures plan. Terms and conditions in this plan can, for example, include any one or a combination of: "apology to the victim; victim offender reconciliation; community service or direct service to the victim to a maximum of fifty hours; monetary compensation to a specified victim with consideration to the client's ability to pay; full or partial restitution to the victim; referral to an outside agency; counselling, either within or outside the program; an essay or research assignment; [which hopefully, if it were one of the terms in a VAWIR or sexual assault case, would demand the use of resources having feminist analysis] educational sessions (e.g., the consequences of shoplifting and/or other crimes); or any other reasonable, creative measures tailored to the individual and the circumstances." These terms and conditions are usually carried out over a three-month period. The local contractor would be responsible for monitoring whether or not the offender successfully completes the alternative measures plan. What constitutes a breach of these terms and conditions is only slightly more explicitly described in Crown Counsel Policy in BC than in the actual Criminal Code amendment. In British Columbia, if the offender does not comply, partially or fully, with "a fundamental term or condition of the alternative measures," then the original charge might be reinstated and prosecuted.
As part of sentencing reforms in British Columbia, offences have been divided into four categories, with only the most serious offences of murder, conspiracy to commit murder, attempted murder, and manslaughter being explicitly considered as never being suitable for alternative measures. Even other Category One offences (those deemed the most serious under these new schema), such as sexual assault with a weapon; aggravated sexual assault; sexual offences involving breach of trust and/or children; criminal harassment; or aggravated assault, can be approved for alternative measures in "rare circumstances" by Regional Crown Counsel, with the written consent of the Assistant Deputy Attorney General. What constitutes "rare circumstances" is undefined in Crown Policy.
The most controversial issue in this new categorization of offences for women's groups concerns those Category Two offences which under "exceptional circumstances" are eligible for alternative measures. These offences include: spouse assault and violence against women in relationships (other than aggravated assault); sexual assault (other than those described in Category One); and child abuse (except those in Category One). At the heart of this controversy is the meaning of "exceptional circumstances" which, like "rare circumstances" has not been explicitly defined in Policy.
A member of Crown, who had argued in favour of "exceptional circumstances" and expressed interest in the reaction of women's groups, provided the following rationale. By allowing cases of violence against women in relationships to be diverted in "exceptional circumstances" by Crown, it is argued that such discretion "keeps the door open for women who do not want to break up the family, or where there isn't a history of abuse, or who don't want their male partner to have a criminal record, or who don't want to go to court. [That is, women] who refuse to testify or lie when giving testimony." In other words, "it gives these women another option. It means that men may receive treatment in situations that they would otherwise not be held accountable [for] in any way [by] their actions." The Crown member indicated that this rationale also holds for women who have been sexually assaulted and who do not want to go through the court system (personal communication by a member of Crown )
This of course raises, among many other things, the issue of the effectiveness of men's treatment programs which are generally based on psychological models that treat violence against women as the pathology of individuals or families rather than addressing those structures and components of society which tolerate, contribute to, and maintain violent male behaviours within intimate settings. These men have adopted and internalized violence as a way of life, and they clearly know that the only reason they are in these treatment programs is that the women they have abused are terrified to testify against them. The question remains as to whether the treatment programs that are part of the alternative measures plan will provide a strong enough societal message to these men that their chosen behaviour is not to be tolerated.
It should be noted that approval of Category Two offences for
alternative measures must be made by one of the three Regional
Crown Councils, meaning that only a very limited group can approve
of exceptional circumstances.
5.
Information in this section is
primarily drawn from Ministry of Attorney General, "Alternative
Measures for Adults," Crown Counsel Policy Manual, 1998a.