Being charged with a criminal offence can be a frightening experience. Beyond the anxiety often associated with the court process, individuals accused of a criminal offence may be facing, among other things, periods of incarceration, large fines, and a resulting criminal record if the Crown attorney can prove the elements of the offence beyond a reasonable doubt. There is, however, a program available under certain circumstances for a criminal matter to be diverted out of the criminal court system. This program is called the Alternative Measures Program.
The Alternative Measures Program is designed to divert individuals from the criminal court system while still holding accused persons responsible for their actions. An accused individual must be recommended for the program by either a police officer or the Crown attorney. This can occur before or after a formal charge has been laid against an individual.
The Crown attorney and police consider a number of factors in determining whether to refer an individual to the program. Some common factors considered include whether the individual has a previous criminal record, the nature and seriousness of the criminal charge, the circumstances of the criminal charge, the individual's attitude, as well as the wishes of the victim(s) involved. Depending on the province, the Alternative Measures Program is not available for certain criminal offences. For example, in Prince Edward Island, individuals facing impaired driving criminal charges would not be qualified.
When an individual is given a referral to the Alternative Measures Program, he or she must be willing to accept responsibility for the criminal charge. The individual must enter into an Alternative Measures agreement, and must follow certain terms and conditions to satisfactorily complete the program. Conditions will vary from case to case, but some common examples include writing a letter of apology to the victim(s), paying an amount of restitution to the victim(s) and keeping the peace and being of good behaviour. It is important to note that even though there is an acknowledgment of responsibility by the accused on entering into the agreement, if the accused later ends up in court for the offence, the acknowledgment of responsibility cannot be used against him or her as evidence. The acknowledge of responsibility is not a guilty plea.
A date will be selected by which the conditions of the Alternative Measures agreement must be completed. If they have not been completed, the Crown attorney may proceed to prosecute the accused on the original criminal charge. If the conditions have been met, and the Alternative Measures Program has been completed, the Crown will stay or withdraw the criminal charges against the accused. As a result of the completion of the program, there would be no period of incarceration or fine associated with the offence, and while there would be no criminal record, there would be a record of the individual's involvement in the matter available to justice officials for a period of two years from the date the individual entered into the Alternative Measures agreement. After two years, the record of involvement becomes unavailable to justice officials.
While it is up to the Crown attorney or police to recommend an individual to the Alternative Measures Program, an accused individual or his/her criminal defence lawyer can discuss with the Crown attorney options for diverting the matter out of the criminal court system. Accordingly, criminal defence lawyers should consider exploring the option of Alternative Measures should the circumstances of the case suggest that it may be appropriate. However, the final decision on whether the program is appropriate in the circumstances will be made by the Crown attorney or police.
Joel M. Wonnacott is the P.E.I. Branch Rep for the Criminal Justice Section