Type of document: Prosecution Directive
Effective date: November 14, 2017

Community based sanctions may serve as an effective alternative to the prosecution of mentally ill accused. In some cases, the needs and interests of society can be better served through the exercise of prosecutorial discretion to withdraw or stay criminal charges upon an accused person’s entry or completion of a comprehensive diversion program. A mentally ill accused is entitled to special consideration flowing from the fact that, their illness, disorder or impaired cognitive functioning may have played some role in the commission of the offence.

To the extent that it is consistent with public safety, accused persons suffering from a mental illness (including developmental disabilities and concurrent disorders) should have the same access to community justice programs as all other accused. This may require an emphasis on restorative and remedial measures, such as specialized treatment options, supervisory programs or counselling programs, as alternatives to prosecution. Prosecutors must only consider community based sanctions if a reasonable prospect of conviction exists and must not impose additional requirements on the accused person as a precondition to offering an alternative to diversion.

A community based program will hold the mentally ill accused accountable for criminal conduct by requiring the completion of rehabilitative programs that effectively respond to the nature of the offence, the accused, and the needs of the community. Once in a program, a plan will be created for the accused that will address the underlying causes that led to the commission of the offence.

In considering community based programs, Prosecutors should bear in mind that a purely medical approach (that may involve medication and/or psychiatric care) is not necessarily the preferred course for all mentally ill accused. Often, the provision of good housing and proper ongoing support in the community are, in themselves, an effective response. Alternative sanctions for mentally ill accused may also include community service work, an apology, and restitution.

This directive addresses diversion for mentally ill persons. For young persons, please see Youth Criminal Justice: Extrajudicial Sanctions. For adults, please see Community Justice Programs for Adults. For an Indigenous accused, please see Indigenous Peoples Directive.

Ineligible offences

Prosecutors must not refer any of the following offences to a community based program, regardless of the circumstances of the offence or the accused:

  • murder, manslaughter, infanticide, criminal negligence causing death
  • driving offences causing death or bodily harm
  • aggravated assault
  • simple impaired driving or driving with a prohibited blood alcohol concentration or refusing to provide a breath sample
  • offences involving firearms
  • criminal organization offences
  • terrorism offences
  • kidnapping
  • voyeurism
  • child abuse and child luring
  • offences involving child pornography
  • home invasions
  • human trafficking offences
  • robbery
  • sexual assault cause bodily harm
  • sexual interference and exploitation, invitation to sexual touching and incest
  • any offences where the Attorney General’s consent was obtained to initiate proceedings

Presumptively ineligible offences

In exceptional cases, the Prosecutor may refer the following presumptively ineligible offences to a community based program with the prior approval of the Crown Attorney or designate:

Eligible offences

The Prosecutor may refer any other offence to a community based program.

Factors to consider

In determining if a community based sanction is an effective alternative to the prosecution of a presumptively ineligible offence or eligible offence for a mentally ill accused, the Prosecutor and Crown Attorney or designate must consider the following factors:

Background of the accused person:

  1. the age and health of the accused person including any mental health issues and psychiatric history
  2. any prior findings of guilt or past involvement with community justice programs or specialized treatment
  3. the nature and number of any such previous offences
  4. any outstanding charges
  5. the role of the accused person and their corresponding degree of responsibility in relation to the offence
  6. whether the accused person has been previously victimized
  7. any remorse and willingness to engage in community justice programs or an appropriate treatment program, including the likelihood of compliance
  8. the degree that the mental illness can be said to have impacted the accused person’s behavior and involvement in the offence
  9. whether the accused person comes from a disadvantaged group
  10. whether the accused person has been or is presently engaged with the mental health system
  11. whether the accused self-identifies as Métis, Inuit or First Nation.

The circumstances and nature of the offence:

  1. whether the offence is summary or indictable
  2. whether the offence involves violence
  3. whether the offence actually harmed the victim (physical, psychological or financial) and/or society
  4. whether the incident affected the sexual integrity of a person
  5. whether a weapon was used or threatened to be used
  6. whether there was an intention to cause or attempt to cause substantial property damage or loss, and if so, whether the damage was reasonably foreseeable
  7. whether the offence was against the administration of justice, such as breach of a court order, and, if so, the extent of non-compliance
  8. whether the offence involved malice, extortion, exploitation or revenge
  9. whether the offence involved a breach of trust
  10. whether the offence was motivated by bias, prejudice, or hate
  11. the age of the victim
  12. the views of the victim and/or their parents or legal guardians (if victim is a child), if available.

Administration of justice considerations:

  1. public confidence in the administration of justice
  2. the length and expense of a trial when considered in relation to the seriousness of the offence
  3. the likely sentence upon conviction
  4. the availability of an appropriate sanction, including culturally relevant programming options, which will hold the accused person accountable and focus on correcting the offending behaviour
  5. frailties in the prosecution e.g. staleness of the case, or the technical nature of the offence
  6. whether the consequences of the prosecution would be unduly harsh to the accused person, the victim or any witnesses in the case, owning to such factors such as age, health or the relationship between the parties
  7. whether a just result is accelerated by a referral to a community justice program.

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