How to Withdraw your Charges by Diversion

Diversion is a voluntary method used to resolve minor criminal charges. It is a way to give an accused a chance to avoid prosecution and engage in an activity that allows their charges to be stayed or withdrawn by the Crown. In both cases, you aren’t required to return for a court procedure on your case.

The difference between “stayed” charges and charges being withdrawn by the Crown, is that a “stayed” charge may be “brought back to life” within a year of the day they are stayed, whereas a withdrawn charge may never be brought back.

The diversion was introduced as it was recognized that some offences may be dealt with ways other than court interference such as guilty pleas or trials. Instead, the accused may be offered the chance of being proactively involved with the community.

Each courthouse in Ontario offers different diversion programs. They vary with their eligibility requirements and their structure, some being very formal while others are more informal. For example, structured diversion programs are the Mental Health Diversion or Extra-Judicial Sanction offered in Youth Court.

Further, the more informal diversion programs may require the accused to do community work, donate to a charitable organization, anger management counselling, addiction or mental health counselling.

The ultimate decision as to whether an accused’s case qualifies for a diversion lies with the Crown. If the crime committed is considered minor and if the accused person does not have a previous criminal record, the Crown may approve for diversion.

Having a prior criminal record is not necessarily a deterrent for a Crown to offer a diversion, but it does make a difference in their decision to grant one. Examples of such minor crimes may be:

· Theft of a low-cost item from a store (e.g. shoplifting)

· Minor fraud charges involving a small amount of money (e.g. switching price-tags or not paying transit fare)

· Mischief (involving minor property damage)

· Causing a disturbance

· Possession of a small amount of marijuana (intended for personal use)

Factors that the Crown uses to decide whether an accused is eligible for diversion are:

· Whether they have a criminal record

· The seriousness of the charges (such as the amount of damage done or the type of injuries caused)

· The cost of prosecuting the accused compared to the seriousness of the offence

· The impacts a conviction would have on the accused compared to society’s interest in punishing criminal behaviour

· The complainant’s thoughts about whether the accused should have diversion

It is essential to understand that withdrawing charges by diversion is completely voluntary. Agreeing to diversion does not mean that you are accepting being guilty of the offence. It only means that you are taking responsibility for the charges and trying to complete the case without resorting to court interference, such as having to plead guilty or having a trial.

At any point in the process, you may choose no to accept diversion, and set a trial date instead. Before making a final decision about diversion, it is wise to consult with a lawyer to go over your case.

Before agreeing to diversion, you should speak to a lawyer to assess your case and provide you with valid legal advice. At Tailor Law Professional Corporation, we have experienced lawyers who are well-equipped to help you with your needs. If you require assistance, please do not hesitate to contact us at 905-366-0202, or visit our website here.


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