Alternative Measures for Adult Offenders ALT 1. March 1, 2018 CHA 1 CHI 1 CRI 1 FIR 1 HAT 1 IPV 1 SEX 1

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1 Plicy: Alternative Measures fr Adult Offenders Plicy Cde: Effective Date: Crss-references: ALT 1 March 1, 2018 CHA 1 CHI 1 CRI 1 FIR 1 HAT 1 IPV 1 SEX 1 Sectin 717(1) f the Criminal Cde prvides in part that: Alternative measures may be used t deal with a persn alleged t have cmmitted an ffence nly if it is nt incnsistent with the prtectin f sciety and the fllwing cnditins are met: (b) the persn wh is cnsidering whether t use the measures is satisfied that they wuld be apprpriate, having regard t the needs f the persn alleged t have cmmitted the ffence and the interests f sciety and f the victim The BC Prsecutin Service supprts the use f alternative measures prgrams and in particular, the use f such prgrams which recgnize the circumstances f Abriginal ffenders. Alternative measures prgrams can be the mst apprpriate and effective way t address harm dne t the cmmunity and t allw ffenders t be rehabilitated and accept respnsibility fr their criminal cnduct. Reference in this plicy t alternative measures includes all prgrams authrized under sectin 717 f the Criminal Cde, which are based n restrative justice principles, such as family grup cnferencing, cmmunity accuntability panels, abriginal justice prgrams and victim/ffender recnciliatin prcesses ther restrative justice prgrams which d nt invlve the alternative measures prcess, but that recgnize the unique circumstances f Abriginal ffenders Unless an ffence is expressly excluded frm alternative measures cnsideratin by this r anther plicy, alternative measures shuld be cnsidered in every case where the Page 1 f 11

2 Alternative Measures fr Adult Offenders ALT 1 successful cmpletin f an alternative measures prgram can achieve the mst imprtant bjectives f a curt prsecutin. The mst imprtant bjectives f a curt prsecutin will vary with each case, based n its facts. Where, fr example, a curt prsecutin is intended t result in the separatin f a vilent ffender frm sciety by a perid f imprisnment r in the impsitin f curtsupervised prbatin prgrams, alternative measures will likely be unsuitable. On the ther hand, where the mst imprtant bjectives are t prmte a sense f respnsibility in the ffender and t btain an acknwledgement f the harm dne t victims, alternative measures will likely be able t achieve these bjectives. Crwn Cunsel shuld adpt a principled and flexible apprach t the determinatin f this issue, and shuld cnsider all f the available alternative measures prgrams which can achieve the mst imprtant bjectives f a curt prsecutin in a particular case. Crwn Cunsel shuld als bear in mind that referral fr an assessment f the suitability f alternative measures des nt bligate Crwn Cunsel t apprve the recmmended prgram if it turns ut t be unsuitable and that it is smetimes difficult t determine the suitability f alternative measures withut btaining an assessment. Prir t recmmending alternative measures, Crwn Cunsel must be satisfied that there is a substantial likelihd f cnvictin. The applicatin f this plicy is a cntinuing ne. Ntwithstanding an initial determinatin that alternative measures are nt suitable, upn receipt f new infrmatin it may be apprpriate t reassess a decisin nt t recmmend alternative measures. Guidelines The guidelines belw are intended t assist Crwn Cunsel in deciding whether t refer a persn fr alternative measures cnsideratin and, in turn, whether t apprve specific alternative measures recmmended in an Alternative Measures Reprt: where the case invlves a crime against children r vulnerable yuth, criminal harassment, firearms, hate mtivated r hate prpaganda ffences, sexual ffences against adults, r intimate partner vilence, Crwn Cunsel shuld cnsider the specific guidelines n alternative measures prvided in the specific plicies n thse tpics. See Appendix A fr the applicable guidelines alternative measures shuld nt rdinarily be cnsidered where: the accused is n prbatin r is serving a term f imprisnment, whether in the cmmunity r in a crrectinal facility Page 2 f 11

3 Alternative Measures fr Adult Offenders ALT 1 the accused has recently participated in alternative measures r has recently been cnvicted f similar ffences having applied the principles utlined abve, if the use f alternative measures might be apprpriate but there are cntinuing cncerns abut whether a referral may be incnsistent with the prtectin f sciety r inapprpriate having regard t the interests f sciety and f the victim, Crwn Cunsel shuld cnsult a Reginal Crwn Cunsel, Directr, r their respective deputy, befre making a decisin the fllwing ffences must nt be cnsidered fr alternative measures: first- and secnd-degree murder cnspiracy t cmmit murder attempted murder manslaughter criminal negligence causing death any ther ffence fr which causing death is a legal ingredient f the ffence aggravated assault r aggravated sexual assault criminal negligence causing bdily harm discharging a firearm with intent hstage taking kidnapping using a firearm in the cmmissin f any indictable ffence fr which there is a minimum sentence, including sectin 85 f the Criminal Cde, r any f the fllwing: sexual assault with a weapn (sectin 272) rbbery (sectin 344) extrtin (sectin 346(1.1)) fr the fllwing ffences, apprval f a Reginal Crwn Cunsel, Directr, r their respective deputy is required befre any referral f a persn fr alternative measures cnsideratin and als befre the use f specific alternative measures recmmended in an Alternative Measures Reprt. Such apprvals may be granted nly where exceptinal circumstances exist s that the use f alternative measures is nt incnsistent with the prtectin f sciety: arsn Page 3 f 11

4 Alternative Measures fr Adult Offenders ALT 1 breaking and entering a dwelling huse child abductin in cntraventin f a custdy rder r withut a custdy rder child prngraphy crimes against children and vulnerable yuth (Children & Vulnerable Yuth - Crimes Against (CHI 1)) criminal harassment (Criminal Harassment (CRI 1)) driving ffences under the Criminal Cde, including impaired driving, driving ver 80 milligrams, and fail t cmply with demand extrtin pssessin f a laded restricted r prhibited firearm, r unladed with ammunitin, cntrary t sectin 95 f the Criminal Cde (Firearms Mandatry Minimum Sentences Cnsecutive Sentences Ntice f Greater Penalty (FIR 1)) imprting, exprting r transferring r trafficking firearms r related items cntrary t sectins f the Criminal Cde (FIR 1) making a firearm autmatic, cntrary t sectin 102 f the Criminal Cde (FIR 1) breach f a weapns prhibitin, cntrary t sectin (FIR 1) hate mtivated and hate prpaganda ffences (Hate Crimes (HAT 1)) ffences invlving a fatality which are nt listed abve prperty ffences invlving a breach f trust rbbery sexual ffences against adults (Sexual Offences Against Adults (SEX 1)) any ther ffence fr which there is a mandatry minimum term f imprisnment Failure t Cmply Under sectin 717(4) f the Criminal Cde, the use f alternative measures is nt a bar t a subsequent prsecutin. Hwever, Crwn Cunsel shuld bear in mind the public interest factrs in Charge Assessment Guidelines (CHA 1) when cnsidering whether t prceed with charges, particularly in circumstances where there has been partial Page 4 f 11

5 Alternative Measures fr Adult Offenders ALT 1 cmpliance with the terms and cnditins f the alternative measures (see sectin 717(4)(b) f the Criminal Cde). Cautin Letters A cautin letter may be in the public interest fr minr ffences, taking int accunt factrs such as the nature f the ffender and the cmmunity where the ffence was cmmitted. A sample cautin letter is attached as Appendix B. Prcedure When ding a charge assessment and cnsidering alternative measures, the ptins fr Crwn Cunsel are: n actin, a cautin letter, an alternative measures referral, r prsecutin. Referrals Referrals fr alternative measures cnsideratin must be cnsistent with a prgram f alternative measures authrized by the Attrney General pursuant t sectin 717(1)(a) f the Criminal Cde. Specifically, referrals must be made t the Crrectins Branch, t an agency cntracted by the Crrectins Branch fr the purpse f prviding alternative measures services (a Cntractr ), r by direct referral t an agency under an MOU between the BC Prsecutin Service and that agency. An Adult Alternative Measures MOU between the Crrectins Branch and the BC Prsecutin Service prvides guidelines n the referral prcess. Alternative Measures Reprt The Crrectins Branch r Cntractr will then prvide Crwn Cunsel with a reprt (the Alternative Measures frm) respecting the persn s suitability fr alternative measures. If alternative measures are recmmended, the reprt will include an alternative measures plan. Crwn Cunsel must ensure that the Alternative Measures frm includes cnfirmatin that the legal pre-cnditins have been met. The frm shuld als prvide details respecting the suitability f the ffender fr alternative measures, the victim s views respecting the use f alternative measures, and any specific alternative measures terms and cnditins recmmended. It shuld als cnfirm that the ffender has been advised that the riginal ffence may be prsecuted if there is nn-cmpliance with the terms and cnditins f the alternative measures and that, if befre the curt n a subsequent ffence, their alternative measures recrd may be intrduced int evidence r be included in a presentence reprt (during the time perids allwed by the Criminal Cde). Page 5 f 11

6 Alternative Measures fr Adult Offenders ALT 1 Cases Requiring Offender Prgramming r Treatment Subject t the abve guidelines, Crwn Cunsel are respnsible fr deciding t refer an accused persn t a prbatin fficer fr screening fr alternative measures. At the cnclusin f the screening prcess, the prbatin fficer prvides Crwn Cunsel with a recmmendatin fr r against the use f alternative measures. Crwn Cunsel then have the discretin t fllw r nt fllw the prbatin fficer s recmmendatin. With respect t screening, Crrectins Branch plicy states in part, a referral is always unsuitable if prgramming r treatment is required. Prgramming r treatment includes any kind f nging interventin required t crrect an ffender's thught prcesses, examples include psychlgical r psychiatric therapy, anger management prgrams r substance abuse cunselling. Prgramming r treatment is ften required in the rehabilitatin f ffenders fund guilty f sexual r intimate partner vilence ffences. If, despite Crrectins Branch plicy and a prbatin fficer s recmmendatin against the use f alternative measures, Crwn Cunsel exercise their discretin t prceed with an alternative measures agreement requiring an ffender t cmplete sme frm f prgramming r treatment, Crrectins Branch will limit their invlvement. They will nly supervise the ffender withut prviding any prgram r treatment resurce. In such a case, Crwn Cunsel shuld be aware that any prgram r treatment resurce will have t be prvided by anther agency r a private service. Further Infrmatin The Crrectins Branch is f the view that alternative measures agreements are inapprpriate fr implementing ffender prgrams r treatment fr the fllwing reasns: the agreements are generally t shrt fr prgrams r treatment t be effective. Cmmn agreement terms such as cmmunity service, aplgies, essays r restitutin are usually cmpleted within 60 days. Prgrams r treatment wuld require much mre time t mdify ffender behaviur. In additin, Crrectins Branch wuld require even mre time t assess the effectiveness f any such prgrams r treatment an Alternative Measures agreement is nt a gd instrument fr enfrcing cmpliance f a term that requires a serius cmmitment frm an ffender. Offenders may initially agree t prgramming r treatment t avid prsecutin, but may later becme uncperative and reluctant. Curt rders are a better means f enfrcing cmpliance ffenders requiring treatment generally present a greater risk t public safety and an alternative measures agreement may nt adequately prtect the victim r the public Page 6 f 11

7 Alternative Measures fr Adult Offenders ALT 1 APPENDIX A Five separate BC Prsecutin Service plicies address the use f alternative measures as fllws: Children and Vulnerable Yuth Crimes Against Children and Vulnerable Yuth Crimes Against (CHI 1) prvides that: Offences against children and vulnerable yuth may be referred fr alternative measures and specific alternative measures recmmended in an Alternative Measures reprt used, nly in exceptinal circumstances and with the apprval f a Reginal Crwn Cunsel, Directr, r their respective deputy. In all cases, the abve apprvals shuld be given nly if the fllwing cnditins are met: the victim has been cnsulted and the victim s views cnsidered the victim has been made aware f available victim assistance prgrams there is n apparent histry f vilence r sexual ffences the ffence is nt f such a serius nature as t threaten the safety r tlerance f the cmmunity While an alternative measures referral may be cnsidered at any stage f the prceeding, in sme cases it may be advisable t apprve a charge and have cnditins f release in place, including n cntact with the child r yuth, befre making the referral. Criminal Harassment Criminal Harassment (CRI 1) prvides that: Fr criminal harassment ffences, the apprval f a Reginal Crwn Cunsel, Directr, r their respective deputy is required befre any referral f a persn fr alternative measures cnsideratin and befre the use f specific alternative measures recmmended in an Alternative Measures reprt. Such apprvals may be granted nly where exceptinal circumstances exist s that the use f Alternative Measures is nt incnsistent with the prtectin f sciety. N case f criminal harassment shuld be cnsidered fr alternative measures withut cnsultatin with the victim. Firearms Firearms Mandatry Minimum Sentences Cnsecutive Sentences Ntice f Greater Penalty (FIR 1) prvides that: Page 7 f 11

8 Alternative Measures fr Adult Offenders ALT 1 Under the plicy n Alternative Measures fr Adult Offenders (ALT 1), alternative measures must nt be cnsidered fr the ffences f discharging a firearm with intent r using a firearm in the cmmissin f any indictable ffence fr which there is a minimum sentence, including sectin 85 f the Criminal Cde r any f the ffences listed in that sectin. In additin, fr the Criminal Cde ffences listed belw, the apprval f a Reginal Crwn Cunsel, Directr, r their respective deputy is required befre any referral f a persn fr alternative measures cnsideratin and als befre the use f specific alternative measures recmmended in an alternative measures reprt: Hate Crimes pssessin f a laded restricted r prhibited firearm, r unladed with ammunitin, cntrary t sectin 95 imprting, exprting r transferring r trafficking firearms r related items cntrary t sectins making a firearm autmatic, cntrary t sectin 102 breach f a weapns prhibitin, cntrary t sectin Apprvals f referral fr alternative measures may be granted nly where exceptinal circumstances exist, s that the use f alternative measures is cnsistent with the prtectin f sciety. When exceptinal circumstances are relied upn as the basis fr making a decisin under this plicy, the reasns fr the decisin must be recrded n the file by the assigned Crwn Cunsel. Hate Crimes (HAT 1) prvides that: Fr adults and yung persns, the plicies n Alternative Measures fr Adult Offenders (ALT 1) and Yuth Criminal Justice Act Extrajudicial Measures (YOU 1.4) apply t all hate crimes. In additin t their general prvisins, plicies ALT 1 and YOU 1.4 prvide the fllwing specific guidance fr the apprval f alternative measures fr hate crimes (excerpt frm ALT 1): A Reginal Crwn Cunsel, Directr, r their respective deputy must apprve any referral f a persn fr alternative measures cnsideratin and als the specific alternative measures recmmended in any Alternative Measures Reprt. In additin, fr hate crimes, such apprvals shuld be given nly if the fllwing cnditins are met: identifiable individual victims shuld be cnsulted and their wishes cnsidered Page 8 f 11

9 Alternative Measures fr Adult Offenders ALT 1 the accused shuld have n histry f related ffences r vilence the accused shuld accept respnsibility fr the act r missin that frms the basis f the alleged ffence the ffence must nt have been f such a serius nature as t threaten the safety f the cmmunity Sexual Offences Against Adults Sexual Offences Against Adults (SEX 1) n prvides that: The plicy Alternative Measures fr Adult Offenders (ALT 1) prvides that ffences f aggravated sexual assault and ffences invlving the use f a firearm in the cmmissin f an indictable ffence fr which there is a minimum sentence, including sexual assault with a weapn, must nt be cnsidered fr alternative measures. Other sexual assault ffences may be referred fr alternative measures, and specific alternative measures recmmended in an Alternative Measures reprt may be used, nly in exceptinal circumstances and with the apprval f a Reginal Crwn Cunsel, Directr, r their respective deputy. In all cases, the abve apprvals shuld be given nly if the fllwing cnditins are met: the victim has been cnsulted and the victim s views cnsidered the victim has been made aware f available victim assistance prgrams the accused has n apparent histry f vilence r sexual ffences an alternative measure is nt cntrary t the public interest While an alternative measures referral may be cnsidered at any stage f the prceeding, in sme cases Crwn Cunsel shuld cnsider apprving a charge and having cnditins f release in place, including n cntact with the cmplainant, befre making the referral. Intimate Partner Vilence Intimate Partner Vilence (IPV 1) prvides that: In apprpriate circumstances, alternative measures may be cnsidered if the mst imprtant bjectives f prsecutin in an intimate partner vilence case can still be achieved (Alternative Measures fr Adult Offenders (ALT 1)). In an intimate partner vilence case, alternative measures shuld nt be cnsidered withut careful cnsideratin f the cncerns f the victim and shuld nly be pursued if: Page 9 f 11

10 Alternative Measures fr Adult Offenders ALT 1 there is n significant physical injury there is n previus histry f intimate partner vilence Crwn Cunsel has n reasnable grunds t believe there is a significant risk f further intimate partner vilence ffences, taking int accunt relevant risk factrs, such as thse utlined under Further Infrmatin, and any risk assessment infrmatin prvided by the Crrectins Branch the use f alternative measures is nt cntrary t the public interest It is imprtant t nte that the Crrectins Branch prgram aimed specifically at intimate partner vilence ffenders, entitled The Relatinship Vilence Preventin Prgram, is nt available n an alternative measures referral (see Appendix A). While an alternative measures referral may be cnsidered at any stage f the prceeding, Crwn Cunsel shuld cnsider apprving a charge and having cnditins f release in place befre making the referral. Page 10 f 11

11 Alternative Measures fr Adult Offenders ALT 1 APPENDIX B CAUTION LETTER [Date] [Name f Accused] [Address] [City/Prvince/PC] Dear [ ]: Re: [Name f Accused] [Offence] [Date f Offence] [Plice File Number] Our ffice has received a plice reprt alleging that yu have cmmitted the abve nted ffence(s). We have reviewed the reprted circumstances and have decided nt t prceed with criminal charges and a prsecutin f this matter. Hwever, a cpy f this letter will be kept in ur ffice. In view f this ministry s respnsibility t the public, yu must understand that if further reprts are received alleging ther ffences, this letter will be cnsidered in determining whether we prceed with a prsecutin. Yurs truly, [Name] Crwn Cunsel Page 11 f 11