Youth Diversion: Extrajudicial Measures and Sanctions
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Is your child facing a charge? Tell us what happened.
The short answer
The youth justice system is built to keep young people out of court whenever it safely can. Before charging or prosecuting a young person, police and the Crown must consider options such as a warning, a caution or a referral to a community program. For more serious cases, an extrajudicial sanction allows a young person to complete a program, after which the charge is dismissed. For parents, understanding these options early can make a real difference to how the case ends. This guide explains how each option works.
Is your child facing a charge?
Why the law favours diversion
The Youth Criminal Justice Act recognizes that, for many young people, a warning or a program is a more effective response than a court case. For a non-violent offence by a young person with no previous findings of guilt, the law presumes that these measures are enough to hold the young person accountable (s. 4). Diversion is meant to address the behaviour quickly, involve families and communities, and avoid the long-term effects of a court record.
Extrajudicial measures (before or instead of a charge)
Before laying a charge, a police officer must consider whether one of the following options would be enough (s. 6):
- No further action: The officer decides that the matter does not need any formal response.
- Police warning: The officer speaks to the young person about the behaviour and its consequences.
- Police caution: A more formal caution is given, sometimes in writing or in a meeting with parents.
- Crown caution: The Crown issues a caution after police refer the case.
- Referral: With the young person's consent, the officer refers them to a community program or agency.
A warning, caution or referral cannot be used in youth court to prove that the young person committed earlier offences (s. 9).
Extrajudicial sanctions (before or after a charge)
An extrajudicial sanction is a more structured program, often used when a warning or caution would not be enough. A sanction may include a written or in-person apology, community service, counselling, restitution to the victim or a written assignment about the incident.
For a sanction to be used, the young person must be told about it and have a chance to speak to a lawyer, must freely consent to take part, and must accept responsibility for what happened (s. 10). The Crown must also have enough evidence to prosecute. A young person who denies involvement, or who wants a trial, cannot be placed in a sanction.
Anything the young person admits in order to get into the program cannot be used against them later in criminal or civil proceedings (s. 10(4)).
What happens after a young person is charged
- Release: Most young people are released by police with a court date, often to a parent.
- First court date: Youth cases from Mississauga and Brampton are generally heard in youth court at the Brampton courthouse.
- Disclosure and discussion: The lawyer reviews the evidence and asks the Crown whether a sanction is available.
- The program: If a sanction is offered, the young person meets with a program worker and completes the agreed tasks.
- Dismissal: When the sanction is completed, the charge is dismissed.
What happens when the sanction is done
When the young person completes the sanction, the court must dismiss the charge (s. 10(5)). If the young person only partly completes it, the court may still dismiss the charge in some cases, depending on how much was done and why the rest was not finished.
The role of parents
Parents usually play a central role in diversion. Programs often ask a parent to attend meetings, support the young person in completing tasks and help make sure deadlines are met. The victim may also be invited to take part in some programs, for example through a restorative justice meeting. Parents can support the process, but the decision to accept a sanction belongs to the young person, after speaking to a lawyer. Parents also have important rights when police want to speak to a young person, as our guide on whether police can question your child without a parent explains.
Is there a record?
A sanction is not a conviction. Police records of it are generally accessible for 2 years after the young person consents to the sanction (s. 119). After that, the record is closed. See youth criminal records and publication bans.
For example, a 15-year-old charged with shoplifting who completes a sanction will have the charge dismissed, and the record will close 2 years later.
What parents should do now
- Find out whether your child has been charged or is only being questioned.
- Remind your child that they can stay silent and ask for a lawyer.
- Do not ask your child for a full account of the incident before they speak to a lawyer.
- Keep every court date and any letters from police, the school or the program.
- Ask a lawyer to request diversion at or before the first court date.
When diversion is not offered
Sometimes the Crown decides that diversion is not appropriate, for example because of the seriousness of the allegation or a history of earlier findings of guilt. In that situation, the case continues in youth court, where the young person can still be acquitted, receive a reprimand or discharge, or be sentenced to a community-based youth sentence. A lawyer can also return to the Crown later in the case and ask again, especially if new information comes to light or the young person has started counselling.
Diversion, travel and immigration
Because an extrajudicial sanction is not a finding of guilt, it is generally a much safer outcome than a conviction for a young person who hopes to travel or who is not yet a Canadian citizen. Even so, families who are dealing with immigration applications should get advice before the young person accepts responsibility in any program.
How we can help
We can ask the Crown for diversion, make sure your child understands what they are agreeing to and protect their future. Call (647) 223-1980 for a free consultation. We accept Legal Aid Ontario certificates.
Frequently asked questions
Must my child admit guilt?
For a sanction, your child must accept responsibility for what happened. A warning or caution does not require an admission.
Can a violent offence get diversion?
It sometimes can. The presumption covers non-violent first offences, but a sanction may still be offered if it fits the circumstances.
What if my child does not finish?
The charge can return to court. However, partial completion may still lead to a dismissal in some cases.
Is diversion the same as a discharge?
They are different. A discharge follows a finding of guilt, while diversion avoids a finding of guilt altogether.
Does diversion appear on a background check?
A sanction is not a conviction, and access to the record is limited to 2 years. Employers generally cannot see it through a standard criminal record check.
Will the victim have a say?
The victim's views can be considered, and some programs invite the victim to take part. However, the decision to offer a sanction belongs to the Crown.