Unlike the formal system of diversion, which to a large extent can be monitored and does have the ability to specify sanctions for non-compliance, the informal system of diversion has no such safeguards. This process begins with police discretion to divert alleged offenders out of the formal justice system at the pre-charge stage. This action precludes preparation and submission of a Report to Crown Counsel - a report which currently, by the Attorney General's own admission, is the only vehicle available to ensure provincial tracking of Criminal Code offences. In determining whether or not the current incident is a continuation of previous violence against the victim (albeit in a different form), or is connected to stalking, the consequences of not having this tracking mechanism can be deadly.
In deciding whether alternative measures are appropriate at the pre-charge stage, a police officer will consider whether the offence occurred because of a "genuine mistake or misunderstanding;" resulted in only "minor loss or harm;" or was a first-time action. The willingness of the alleged offender to accept responsibility and to make amends is also taken into account. Offences that fall into Category Four, the least serious offences, are the most likely to be considered for informal diversion. Category Four offences may include: theft under $5,000; possession of stolen property under $5,000 (except when the victim is vulnerable or the offender in a position of trust); causing a disturbance; or mischief under $5,000. Depending on the circumstances, even repeat offenders in this category may be diverted. Category Three offences, such as trespass at night; taking an auto without consent; mischief over $5,000; assault Section 266 (except VAWIR); forgery; fraud; false pretenses; uttering; unlawful use of a credit card in amounts over $5,000; and unauthorized use of a computer (except in cases where the victim is vulnerable or the offender in a position of trust), may also qualify for diversion at the pre-charge level. Once the decision is made not to proceed, the police officer has a number of options open, such as giving an oral caution or issuing a cautionary letter; referring the alleged offender to social, health, educational or other agencies that may provide needed treatment, or referral to any appropriate community programs available.
These local community initiatives, often in partnership with police, can take different forms such as victim-offender reconciliation, family group conferencing, neighbourhood accountability boards/panels, or circle remedies. While these models differ in structure and implementation, they are all premised on restorative justice principles which see crime as causing harm to victims, offenders and communities and because of this, requiring the active involvement of victims, offenders, and communities in repairing this harm. These programs then focus on problem solving, that is, on the harmful consequences of the offender's behaviour and on what should be done to restore harmony between both parties and the community in the future. The offender must accept responsibility for his actions and be prepared to repair any harm resulting from his actions. The emphasis is on dialogue and negotiation between offender and victim, in which the community is to act as a facilitator. As mentioned above, if the individual fails to comply with any form of informal resolution, there is no recourse to prosecute the offender for the original offence.
The Ministry of Attorney General has "reminded" police and community groups-via both the "Diversion Guidelines for the Police" and the "Community Accountability Program Kit" it developed to enable communities to set up their own programs to implement restorative solutions to crime-that cases involving violence against women in relationships (VAWIR), and sexual assault can only be considered for diversion by Crown Counsel in exceptional circumstances. But as we know from incidents in Sparwood, BC, and more recently in BC's Fraser Valley (the latter revealed at the March 21, 1998 consultation on new alternative measures reforms), that the Attorney General's "reminder" can be ignored and that VAWIR cases can be diverted at the pre-charge stage. And as was pointed out at the consultation on restorative justice measures held in October 1997-during which a woman who ran a men's treatment program in a northern BC community related that the RCMP member in charge had indicated to her that he would divert up to forty percent of VAWIR cases to her program-not only is it likely that these cases will continue to be diverted at the pre-charge stage, but this type of diversion may indeed increase. It is interesting to note that in the above case, the RCMP officer's reasoning for diverting up to forty percent of the VAWIR cases in his jurisdiction was much the same as that used by Crown for retaining "exceptional circumstances," namely that it is the only way of getting these men into treatment.
One possible way to ensure that the "reminder" of the
Attorney General is heeded is for all police forces in the province
to follow the initiative of the Vancouver Police Department in
issuing a policy directive to its members not to divert any cases
involving violence against women in relationships. It is hoped,
however, that the Vancouver Police Department will in the near
future issue a further policy directive declaring that as well
as not diverting VAWIR cases, no sexual assault cases involving
women and children will be diverted at the pre-charge stage.
This action would send a strong message, which could be echoed
by other police forces throughout the province, that violence
against women and children in any form will not be tolerated.
But while the initiative of the Vancouver Police Department,
as far as it goes, is laudable, one must at least raise the question
here as to why, if the VAWIR and the new alternative measures
policies have any enforceability whatsoever, it is necessary for
a police department to have to tell its members that diversion
in cases involving violence against women in relationships should
not be done. What this really means is that in lieu of such directives
from police forces and of any monitoring mechanisms (such as a
funded independent monitoring body to oversee this informal system
of diversion), we will not know the prevalence of pre-charge diversion
of VAWIR and sexual assault offences, except, of course, in those
instances when someone is willing to risk their job to reveal
its occurrence.
6.
Information drawn from Ministry of Attorney General, "Community Accountability Program
Kit" (1998b), and "Diversion Guidelines for
Police" (1998c).