INTRODUCTION AND BRIEF DESCRIPTION
The use of alternative measures does not prevent criminal proceedings, but compliance may lead to dismissal of charges.
SECTION WORDING
717(4) The use of alternative measures in respect of a person alleged to have committed an offence is not a bar to proceedings against the person under this Act, but, if a charge is laid against that person in respect of that offence, (a) where the court is satisfied on a balance of probabilities that the person has totally complied with the terms and conditions of the alternative measures, the court shall dismiss the charge; and (b) where the court is satisfied on a balance of probabilities that the person has partially complied with the terms and conditions of the alternative measures, the court may dismiss the charge if, in the opinion of the court, the prosecution of the charge would be unfair, having regard to the circumstances and that person’s performance with respect to the alternative measures.
EXPLANATION
Section 717(4) of the Criminal Code of Canada outlines the use of alternative measures for individuals alleged to have committed a criminal offense. Alternative measures refer to diversionary programs designed to avoid traditional criminal proceedings, including community service, counseling, restitution, or participation in rehabilitation programs. The provision clarifies that the use of alternative measures does not preclude a person from facing charges under the criminal code for the alleged offense. However, if a charge is laid against the person, the court must determine whether the individual has complied with the terms and conditions of the alternative measures. If the court finds that the person has fully complied with the alternative measures' terms and conditions, the court must dismiss the charge outright. But if the court concludes that the person has only partially complied with the alternative measures, the court may still dismiss the charge if proceeding with prosecution would be unfair in light of the person's performance and the relevant circumstances. The purpose of this provision is to encourage the use of alternative measures where appropriate while ensuring accountability for criminal misconduct. It creates a mechanism for the courts to evaluate whether the alternative measures have successfully rehabilitated the offender and determine whether dismissing the charge is in the best interest of justice. Ultimately, the provision promotes the fair and efficient administration of justice in Canada.
COMMENTARY
Section 717(4) of the Criminal Code of Canada addresses the use of alternative measures in criminal proceedings. The use of alternative measures is a way to deal with less serious offences outside of the traditional court process. These measures may include things such as community service, restitution, and counselling. While the use of alternative measures does not act as a complete bar to criminal proceedings, it may provide individuals with a second chance to address their behaviour and make amends without having a criminal record. If charges are laid against an individual who has previously undergone alternative measures, the court must consider their compliance with the terms and conditions of those measures. If an individual has completely complied with the terms and conditions of alternative measures, the court shall dismiss the charge. This provision acknowledges that individuals who have demonstrated a willingness to take responsibility for their actions and have successfully completed the alternative measures should not be burdened with a criminal record. On the other hand, if an individual has only partially complied with the alternative measures, the court has the discretion to dismiss the charge if they believe that prosecuting the individual would be unfair. This provision acknowledges that there may be circumstances where the individual has made significant progress towards rehabilitation but may have had difficulty meeting all the terms and conditions of the alternative measures. At its core, Section 717(4) is concerned with fairness and rehabilitation. It recognizes that individuals who have acknowledged their wrongdoing and demonstrated a commitment to making amends should not be unfairly punished with a criminal record. It also acknowledges that rehabilitation is an ongoing process and that individuals should be given the opportunity to continue their progress, even if they have not met all the terms and conditions of previous alternative measures. While this provision is a positive step towards rehabilitation and fairness, it is important to note that it does not apply to all types of offences. More serious offences, such as violent crimes or sexual offences, may not be eligible for alternative measures. Additionally, the decision to use alternative measures is ultimately up to the prosecutor, and they may choose to proceed with criminal charges regardless of an individual's compliance with alternative measures. In conclusion, Section 717(4) of the Criminal Code of Canada is an important provision that acknowledges the importance of fairness and rehabilitation in the criminal justice system. By providing individuals with a second chance to address their behaviour and make amends, it may ultimately lead to lower rates of recidivism and more successful rehabilitation outcomes.
STRATEGY
Strategic Considerations when Dealing with Section 717(4) of the Canadian Criminal Code Section 717(4) of the Criminal Code of Canada provides a framework for the use of alternative measures in dealing with persons alleged to have committed an offence. Alternative measures provide an opportunity to divert individuals away from the traditional criminal justice system and into a program that is designed to address underlying issues that may have contributed to their offending behavior. The use of alternative measures can benefit both the offender and the justice system by reducing the impact on the offender's future prospects and by reducing the burden on the criminal justice system. However, when dealing with this section of the Criminal Code, there are several strategic considerations to keep in mind. The first strategic consideration is the discretion of the prosecutor. Section 717(4) does not require the prosecutor to offer alternative measures in every case, and the prosecutor can choose to prosecute the person under the Criminal Code. Therefore, in cases where the circumstances of the offence are particularly serious, the prosecutor may choose to proceed under the Criminal Code rather than offer alternative measures. Similarly, where the person has a history of criminal behaviour or has failed to comply with alternative measures in the past, the prosecutor may choose to prosecute the person under the Criminal Code rather than offer alternative measures. The second strategic consideration is the eligibility criteria for alternative measures. The law provides specific criteria that must be met before a person can be offered alternative measures. For example, the person must have admitted to the offence, and the offence must be one that is eligible for alternative measures. The prosecutor must also consider the needs of the victim and the community in determining whether alternative measures are appropriate. Therefore, it is important to carefully evaluate the eligibility criteria before offering alternative measures to ensure that they are appropriate for the specific case. The third strategic consideration is the terms and conditions of alternative measures. Alternative measures can vary widely depending on the needs of the person and the community. Some programs may involve counseling or treatment for substance abuse or mental health issues, while others may require community service or restitution. It is important to tailor the terms and conditions of alternative measures to the specific needs of the person and the community, and to ensure that they are realistic and achievable. If the terms and conditions are too onerous, the person may be unable to comply, which could result in the prosecutor choosing to proceed under the Criminal Code. The fourth strategic consideration is compliance monitoring. In order for alternative measures to be successful, it is important to monitor compliance closely. This can involve regular meetings with a probation officer, drug testing, or other measures to ensure that the person is complying with the terms and conditions of the program. Compliance monitoring is important both to ensure that the person is making progress and to provide support and intervention if the person is struggling to comply. In terms of strategies that could be employed when dealing with Section 717(4), one strategy is to build a strong case for alternative measures. This can involve gathering information about the person's circumstances, including any underlying issues that may have contributed to their offending behaviour. It can also involve engaging with the victim and the community to ensure that their needs are being met. By building a strong case for alternative measures, the prosecutor may be more likely to offer them as an option. Another strategy is to ensure that the terms and conditions of alternative measures are achievable. This can involve working with the person to identify goals and milestones that are realistic and measurable. It can also involve providing support and intervention to ensure that the person is able to comply with the terms and conditions of the program. By ensuring that the terms and conditions are achievable, the person is more likely to comply, which could result in the charge being dismissed. Finally, a strategy that can be employed is to establish a system for compliance monitoring. This can involve regular check-ins with a probation officer, drug testing, or other measures to ensure that the person is complying with the terms and conditions of the program. By closely monitoring compliance, the prosecutor can identify issues and provide support and intervention to ensure that the person is making progress. This can also provide evidence to the court that the person has complied fully or partially with the terms and conditions of the program, which could result in the charge being dismissed. In conclusion, Section 717(4) of the Criminal Code of Canada provides a framework for the use of alternative measures in dealing with persons alleged to have committed an offence. When dealing with this section of the Criminal Code, it is important to consider the discretion of the prosecutor, the eligibility criteria for alternative measures, the terms and conditions of alternative measures, and compliance monitoring. Additionally, strategies such as building a strong case for alternative measures, ensuring achievable terms and conditions, and establishing a system for compliance monitoring can be employed to increase the likelihood of success. Ultimately, alternative measures can provide an effective and beneficial alternative to traditional criminal justice system procedures.