What Is the Diversion Program in Ontario?

When someone is charged with minor criminal offences in Ontario, they may be eligible for the Diversion Program. Also called “direct accountability,” diversion is a voluntary way to resolve criminal charges without going to trial or entering a guilty plea.

If you successfully complete the program offered to you, your criminal charges will be withdrawn or stayed. There will be no formal finding of guilt and no criminal record. In return, you must complete certain requirements, often called “upfront work.”

Diversion is essentially an alternative to prosecution. It acknowledges that not all criminal charges are serious enough to warrant a guilty plea or trial proceedings. It can be seen as a form of restorative justice, allowing someone accused of an offence to participate in a program that benefits their community.

How Is Eligibility for Diversion Determined?

Once you have been charged, a Crown prosecutor will assess your case. They will screen the facts of your case and your criminal background to determine your eligibility.

For you to participate in diversion, the Crown must consent. Eligibility is solely the Crown’s decision and cannot be determined by a Justice of the Peace or a Judge.

If you are being offered diversion, you usually find out at your first court appearance. If the Crown has not offered diversion, you or your lawyer can try to convince them that you should be eligible. This negotiation sometimes happens during a Crown pre-trial or judicial pre-trial.

What Offences Qualify for Diversion?

Diversion is typically offered to accused persons for minor offences who have no criminal record or have never been offered diversion before. You may also be ineligible if there is a record of police contact for a similar offence, even if no charge was laid.

Examples of minor offences that may qualify include:

• Theft under $5,000 (shoplifting)
• Minor fraud charges involving a small amount of money
• Mischief (causing minor property damage)
• Causing a disturbance
• Possession of a small amount of marijuana intended for personal use

The Crown assesses the specific facts of each case to determine eligibility. Various factors can aggravate the nature of an offence and affect whether diversion is offered.

What Types of Diversion Programs Exist?

Each courthouse offers different diversion programs. These can be formal or informal, depending on the circumstances of your case.

Formal Diversion Programs:

• Mental Health Diversion
• Extra-Judicial Sanctions (EJS) offered in the Youth Court
• Enrolment in educational classes about the consequences and effects of the specific offence

Informal Diversion Programs:

• Community service hours
• A charitable donation
• Writing a letter of apology
• Writing a short essay about the offence
• Anger management counselling
• Addiction or mental health counselling

The terms of your participation are specific to the facts of your offence. You may accept the Crown’s initial offer or have your lawyer negotiate different terms on your behalf.

Will Diversion Appear on My Criminal Record?

When you successfully complete the diversion program, your charges will be withdrawn or stayed. This means there is no criminal record and no finding of guilt.

However, there will still be a record on the police database (CPIC) that a charge was laid. Every case is different, so you should seek advice from a defence lawyer about what completing diversion may mean for your specific situation.

What Is the Difference Between Withdrawn and Stayed Charges?

It is better to have charges withdrawn rather than to have them stayed.

While having charges stayed is a favourable outcome, stayed charges can be resurrected within one year of the date they are stayed. This is uncommon but can occur if you are charged with new offences during that one year. If that happens, the Crown could prosecute you on the original charges again.

If charges are withdrawn, the prosecution of those charges is finished permanently. Those same charges can never be brought back.

Can You Change Your Mind About Diversion?

Yes. Diversion is voluntary, and you can change your mind at any time about accepting it. If you decide diversion is not right for you, you can set a trial date instead.

Diversion is usually a favourable outcome, but there are cases where it may not be the best option. You should always speak to a defence lawyer before making a decision.

Speak to a Criminal Lawyer About Diversion

Understanding whether diversion is right for your situation requires careful consideration of the facts of your case, the terms being offered, and your long-term goals.

Pyzer Criminal Lawyers has over two decades of experience helping clients navigate the criminal justice system in Toronto and the GTA, including negotiating diversion agreements with the Crown. Contact us at (416) 658-1818 for a free, confidential consultation to discuss your charges and options.