Review of the Nunavut Community Justice Program: Final Report
APPENDIX 4 - DRAFT DIVERSION PROTOCOL AND AGREEMENT
THE JUSTICE COMMITTEE
of the Hamlet of in Nunavut
(Called "the Committee")
THE ROYAL CANADIAN MOUNTED POLICE
(Called "the RCMP")
JUSTICE CANADA (Nunavut Territory)
Government of Canada
(Called "Justice Canada")
THE DEPARTMENT OF JUSTICE Government of Nunavut (Called "GN Justice")
In this protocol and agreement:
- means a person 18 years of age and over;
- Young Person
- means a person at least 12 years old but under 18.
- means the person who suffered or incurred a loss as a result of the offender's actions;
- means the person who committed the action that is the object of Diversion;
- means the RCMP or Crown Counsel;
- Pre-charge Diversion
- means any matter referred to the Committee by the RCMP rather than laying a charge before the Court;
- Post-charge Diversion
- means any matter referred to the Justice Committee by Crown Counsel after a charge has been laid and thereby avoiding a formal court process and requiring Crown Counsel to end the Prosecution once the offender has complied with the Diversion;
- Diversion Agreement
- means the agreement entered into by the Committee, the offender, and where applicable, the victim, regarding the disposition of the matter referred to the Committee.
The formal criminal justice system has taken away a lot of responsibilities from Nunavummiut by dealing with most criminal offences, whether serious or not. The expectation that the justice system alone will resolve these problems may be one of the reasons why there is an increase of criminal activities in communities. It is now recognized that in many circumstances the formal court process is not necessarily the most adequate way to deal with certain offenders.
It is important that local responsibility and accountability be restored. One way is for the justice system to slowly withdraw from some matters that may be better dealt with by the community. Alternative forms of justice should be encouraged and take place in cooperation with the Prosecution authorities that are responsible for the fair enforcement of the law.
Diversion is a course of action whereby the community can act in a responsible role for what happens locally and for restoring balance and harmony. Through Diversion, the Justice Committee can instead handle some cases that would otherwise go through the formal court process. With Diversion as an alternative, the Justice Committee can contribute to create a fair, just, and supportive community in a manner that is consistent with its traditional values, and provides an alternative to Prosecution in court.
The purpose of this Diversion Protocol is to define the roles and the process to be used in diverting criminal matters to the Justice Committees. However, the Justice Committees shall not be limited by this Diversion Protocol from engaging and intervening in a broad range of other community justice activities that promote safety, restore harmony and help to create a fair justice system within their communities, including crime prevention measures, meeting with families, post-sentencing counselling, and referrals from other agencies and individuals.
The parties agree to the following objectives of the Diversion Program:
- Improve access to justice services in the community;
- Promote community participation in the delivery of justice programs;
- Enhance and preserve Inuit Qaujimajatuqangit and customary law;
- Encourage a more holistic approach to social problems;
- Encourage local participation and responsibility in resolving these issues;
- Develop a community-driven and locally-accountable Diversion Program that works in partnership with the existing criminal justice system;
- Promote a more effective use of the distinctive resources found in Nunavut communities;
- Encourage community-based resources to administer and deliver local justice services; and
- Promote a greater awareness and understanding of justice and related issues at the community level.
4. THE COMMITTEE
- 4.1 The Committee will have five (5) or more members. The Committee will try to make sure that it has a fair representation of the broad segments of the community.
- 4.2 The Committee shall choose a coordinator who will attend each committee meeting.
- 4.3 The coordinator will ensure that minutes of meetings are recorded and will provide reports as required to the other parties of this Protocol.
- 4.4 Three (3) members of the Committee can decide whether to accept a case for Diversion.
- 4.5 If the Committee decides not to accept a case, a written report outlining the reasons will be provided to the Prosecution within a reasonable time.
- 4.6 Members of the Committee will not disclose to the public any confidential information they receive in the course of the Diversion Program.
- 4.7 The coordinator shall keep all written information about the case in a secure and private place.
5. ELIGIBILITY FOR DIVERSION
- Any offender may be considered for Diversion.
- The offender must accept responsibility for his or her wrongdoing.
- The offender must be willing to participate in the Diversion process, to discuss the matter with the Committee and to follow the decision of the Committee.
6. MATTERS WHICH MAY BE SUBJECT TO DIVERSION
The following types of offences may be diverted to the Committee:
- 6.1 All offences under Territorial legislation;
- 6.2 All Summary Conviction Offences;
- 6.3 Crown- Election Offences in circumstances where the Crown elects, or would normally be expected to elect, to proceed summarily, subject to the provisions of section 7 (i.e. Spousal, Sexual or Child Abuse offences);
- 6.4 Break-and-enter offences, except in cases where an offence provided for in Section 7 (i.e. Spousal, Sexual or Child Abuse offences) was committed in the course of the Break & Enter offence;
- 6.5 Other Federal Regulatory Offences after Crown Counsel has consulted with the proper law enforcement officers;
- 6.6 Other offences in exceptional circumstances on the recommendation of the RCMP and with the written consent of Justice Canada.
The following offences will not be diverted to the Committee, except in accordance to Federal Prosecution Policies:
- Sexual assaults;
- Spousal abuse;
- Child abuse matters; and
- Other offences which Prosecution policies restrict for Diversion.
8. GUIDELINES FOR DECIDING TO DIVERT MATTERS
- 8.1 Consultation between the Justice Committees and the Prosecution, either the RCMP or Crown Counsel, regarding the types of cases the Committees are prepared to handle shall be encouraged, and shall occur regularly. Consultation on individual cases shall also be encouraged.
- 8.2 The RCMP will make decisions where Pre-charge Diversion is being considered and will decide in conformity with RCMP Operational policies currently in application in Nunavut and RCMP policies that may be in force at a national level. Crown counsel will make decisions where Post-charge Diversion is being considered and will decide in conformity with Federal Prosecution policies.
- 8.3 The Prosecution will examine the case upon completion of the investigation and will satisfy itself that all of the following conditions have been met before diverting it to the Committee:
- That there is enough evidence against the offender. Where Pre-charge Diversion is being considered, the RCMP must be satisfied that there are reasonable and probable grounds to lay an information. In Post-charge Diversion Crown Counsel must be satisfied that there is a reasonable prospect of conviction.
- That Diversion would be appropriate having regard to the needs of the offender and the interests of the community and the victim.
- That the Prosecution has made every reasonable effort to consult the victim, if any, before deciding whether to divert the case. The safety and interests of the victim will be the first priority in the decision to divert matters.
- That the offender has been advised of his or her right to consult with a lawyer and is aware that he/she does not have to accept Diversion.
- That the offender is willing to accept responsibility for his or her actions and freely consents to participate in Diversion.
- 8.4 If the offender agrees to participate in Diversion he/she will be asked to sign a consent form and the matter will be referred to the Committee to decide whether it will accept the case. The Prosecution will provide a summary of the circumstances of the offence and relevant background information about the offender to the Committee.
- 8.5 Repeat offenders may be considered for Diversion.
- 8.6 An offender who has previously failed to follow a decision of the Committee may be considered for Diversion.
9. THE DIVERSION PROCESS
- 9.1 If the offender agrees to Diversion, the Prosecution will provide information in the investigation file to the Committee.
- 9.2 The Committee decides to accept or not accept the matter for Diversion.
- 9.3 The Committee will consider contacting the victim and invite them to participate in the process if he/she feels comfortable in doing so. The Committee may consider recommendations or information they have received from the Prosecution when deciding to contact the victim.
- 9.4 If the victim agrees, copies of a Victim Impact Statement, if any, will be provided to the Committee by the Prosecution.
- 9.5 The Committee will meet as soon as possible with the offender and other parties if anyone else is involved. The goal of the process will be to reach a consensus on how to deal with the problem created by the offence and to restore, if possible, harmony and balance within the community.
- 9.6 The Committee may make any decision regarding the disposition of the case that is appropriate in the circumstances, except for fines and imprisonment. If the offender does not agree to comply with the decision, Diversion will not proceed further.
- 9.7 The Committee will decide on the duration of the Diversion agreement but will not exceed 60 days except for exceptional circumstances.
- 9.8 The Committee may review a matter where an agreement was reached if it feels that a decision should be changed.
- 9.9 The Committee will provide a copy of the Diversion agreement and a report to the referring agency (RCMP or Crown Counsel) within 14 days of its completion.
- 9.10 If the Committee believes an offender has failed to follow a Diversion agreement, it will immediately notify the referring agency (RCMP or Crown Counsel) so that the matter may proceed through the court.
- 9.11 If the matter proceeds to court the Prosecution will not use any information gained through the Diversion process as evidence against the accused. However, for sentencing purposes, the court may be advised that Diversion was tried but did not work.
- 9.12 The Prosecutor shall make no mention of the fact that the offender's charge was diverted to the Program unless the Court inquires as to the reason for the delay in Prosecution.
10. DIVERSION RELATED TO YOUNG PERSON
The Diversion Protocol also applies to Young Persons who have committed criminal offences and is subject to of the provisions of the Youth Criminal Justice Act.
11. AMENDMENTS TO THIS PROTOCOL
At any time, one of the parties may give notice to the other parties advising that they wish to propose changes or amendments to the current Protocol. The parties agree to meet as soon as possible thereafter to discuss the Protocol amendments with the view of solving the issue to the satisfaction of all parties.
12. TERMINATION OF THIS PROTOCOL AND AGREEMENT
At any time, one of the parties may cancel this Protocol Agreement for any reason by providing sixty days (60) written notice to the other parties. Termination may be effective immediately or at the time given in the notice. When cancellation occurs, this Protocol Agreement ceases to exist and is of no further effect.
THE JUSTICE COMMITTEE members have signed this Protocol Agreement this day of 200.
THE RCMP, by its duly authorized officer, has signed this Protocol Agreement this day of 200 .
JUSTICE CANADA, by its duly authorized officer, has signed this Protocol Agreement this day of 200.
DEPARTMENT OF JUSTICE OF NUNAVUT, by its duly authorized officer, has signed this Protocol Agreement this day of 200.
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