Gouvernement du Québec - Justice

Program to deal non-judicially with certain criminal offences committed by adults


The criminal law consists of a set of rules whose purpose is to suppress behaviour that impairs fundamental values such as life, security and integrity of the person and respect for democratic institutions, or that interferes with the peaceful enjoyment of goods and services.

Although serious crimes that impair these values deserve to be strictly suppressed and must, for that purpose, be dealt with by the courts, the same cannot be said of minor offences.

It must be recognized that certain unlawful behaviour is often merely misconduct by an individual – an act that is to some extent isolated and does not disturb the social order in any way or compromise these values. Consequently, we can contemplate ending such misconduct without having to resort to the judicial system.

Criminal prosecution must increasingly be seen as the final means available to society to protect its values, and must be used with moderation and judgment so as not to congest the courts or unduly limit the time they can spend dealing with serious crimes.

It is also necessary to consider the disadvantages of court proceedings for victims and witnesses, who cannot usually derive any personal benefits therefrom.

Finally, the systematic use of criminal prosecution to punish minor offences tends to trivialize the offender's appearance in court and could jeopardize its deterrent impact on the offender. It is therefore appropriate to adopt a new approach to these types of offences. As early as 1975, the Law Reform Commission of Canada advocated an approach referred to as "diversion" for dealing with offences that do not constitute a true threat to society. The Commission concluded as follows:

"An examination of Diversion and its place in the administration of criminal justice is necessary for several reasons. Too many forms of socially problematic behaviour have been absorbed by the criminal law in recent history and this trend needs to be reversed. One way of doing so is through the process of decriminalization – the elimination of offences. This approach unfortunately has not shown itself to be always successful. Even when offences are eliminated, problematic behaviour often remains, has to be dealt with, and may lead to the use of other charges. Diversion, in this context, represents an approach which recognizes that problems exist and cannot just be defined away but seeks solutions which minimize the involvement of the traditional adversary process and maximize conciliation and problem settlement. The full force of the criminal process can thus be restricted to offences which raise serious public concerns."1

Arguments to the same effect were also made at the Justice Summit in February 1992, and the Attorney General of Québec undertook at that time to promote non-judicial action in respect of minor criminal offences.

It is not a matter of decriminalizing certain offences or removing liability from those who commit them. Rather, it is a matter of dealing with certain offences in a particular way so as to better rationalize the use of resources allocated to the judicial system and not to unduly stigmatize the misconduct of an offender whose behaviour does not warrant judicial action.

The framework within which the Attorney General of Québec allows certain criminal offences to be dealt with non-judicially, and the measures used for that purpose, are discussed below.


Operation of the program

The decision not to have the courts deal with an offence is a matter of prosecutorial discretion and is made by the criminal and penal prosecuting attorney.

While peace officers, whose role is to prevent crime and find those who commit it, may sometimes close a case if it is a trivial matter, the prosecutor is responsible for deciding whether it is appropriate to prosecute and, if necessary, for determining what charges should be laid.

The courts are not permitted to take part in this decision, since they must avoid having to judge offenders whom they had previously decided could not be dealt with non-judicially; they thus preserve their impartiality. Likewise, victims cannot be given the responsibility for criminal prosecution, although the criminal and penal prosecuting attorney must consider their point of view when deciding whether to proceed to court.

That decision is not made by the criminal and penal prosecuting attorney until it is has been determined that the wrongful act attributed to the offender constitutes an offence, that it can be proved and that no legal obstacle bars the prosecution. This is because an offence should not be dealt with non-judicially if it could not have been dealt with by the courts. Moreover, the decision not to bring court proceedings means that no information is laid and thus that victims and witnesses do not have to appear in court.

Dealing with criminal offences non-judicially is first and foremost an exceptional measure used for certain acts committed by offenders who do not have a significant criminal history. The use of this measure is thus appropriate only for a given offender profile and for certain offences.

Offenders covered by the program

Non-judicial action in respect of certain offences will be even more effective and credible if the offenders to whom it applies are willing to mend their ways and are, objectively, those least likely to re-offend. In our opinion, the following offenders should not be eligible:

  • offenders who refuse or neglect to provide the victim with fair compensation for the harm suffered;
  • offenders who have a relevant criminal history;
  • offenders who have a recent criminal history in the same area;
  • offenders who already have one or more cases pending against them when charged with a new offence;
  • offenders charged with one or more offences that are being or will be dealt with by the courts; and
  • offenders who have already been dealt with non-judicially during the preceding five years, unless there are special circumstances.

Moreover, the criminal and penal prosecuting attorney must be selective when determining the eligible clientele so as to apply this measure only in cases where doing so is justified in light of all the circumstances. Consequently, the prosecutor must also take account of the following factors when deciding whether an offender should be dealt with non-judicially:

  • the specific circumstances surrounding the commission of the offence, such as the degree of premeditation, the subjective seriousness of, infer alia, the consequences of the offence for the victim, the alleged offender's degree of participation and the interests of justice;
  • the level of co-operation shown by the alleged offender;
  • the risk of re-offending; and
  • the need to deter the offender, particularly if the offender has benefited from a measure or an extrajudicial sanction during the preceding two years.


Offences covered by the program

Criminal Code offences that may be dealt with non-judicially are as follows:

  • offences punishable on summary conviction;
  • "hybrid" offences punishable by imprisonment for a term not exceeding two years;
  • the following "hybrid" offences punishable by imprisonment for a term not exceeding five years: assault and public mischief;
  • simple possession of small quantities of marijuana (30 grams or less) or hashish (one gram or less).

Offences under legislation other than the Criminal Code are thus excluded from the program, as are Criminal Code offences falling in either of the first two categories listed above that require court action because it remains the most appropriate way to deal with the offences and supervise the offenders. Such offences would include those involving conjugal and family violence, impaired driving, gaming and prostitution (which are often associated with organized crime) and failure to comply with a court order (unless an exception applies). As for the other serious Criminal Code offences, including sexual assault, they are of course excluded from the program.

Measures to deal with offences non-judicially

The measures used are as follows: warning letter or demand. Those measures basically rely on the offender's sense of responsibility.

Warning letter

A warning letter is a document informing the offender:

  • that a request to prosecute the offender has been forwarded to an criminal and penal prosecuting attorney;
  • that there is a program to deal non-judicially with certain criminal offences;
  • that the offender is eligible for the program;
  • that court proceedings will not be brought against the offender unless he or she gives notice to the contrary; and
  • that the offender has the right to consult an attorney at any time.

This written warning from the criminal and penal prosecuting attorney also informs the offender that committing a subsequent criminal offence will mean that he or she will not be eligible for the program again.


A demand is a letter sent by the criminal and penal prosecuting attorney to the offender reminding the offender that he or she had a legal obligation to fulfil, that the time for doing so has expired and that if the obligation is not fulfilled quickly, an information will be laid.

The demand is a type of non-judicial measure used in cases of non-compliance with the following two court orders only: a probation order providing for reimbursement and an order requiring a person to appear so that fingerprints may be taken. Experience has shown that the violation of these orders is generally the result of carelessness or forgetfulness by offenders rather than a distinct intention to shirk their obligations. Sending a demand makes it possible to verify this in each specific case, and if the offender ignores it, charges will be laid.

Finally, since a demand is to some extent a reminder to the offender of an obligation that must be fulfilled, it is understandable that this measure does not require the criteria for the use of a warning letter to be applied and that a demand may be systematically sent in cases of failure to pay a sum of money, unless doing so would be pointless given the circumstances of the case.


Implementation of the program

The criminal and penal prosecuting attorneys will begin applying program-related measures on October 1, 1994, in all eligible cases submitted to them. Moreover, steps will be taken to monitor cases via computer to ensure that the measures are applied only to offenders eligible for the program.

The smooth operation of such a program depends on the co-operation of the police and the general public. As for the offenders to whom this program will apply, they must recognize that they have received special treatment but that they will not continue to do so if they do not change their behaviour.

1. L.R.C.C., Diversion (Working Paper 7,1975) at 1

The content of this document is strictly informative and has no legal value.

If you find some of the information difficult to understand, do not hesitate to contact us. Please note, however, that we cannot interpret the information to apply it to a specific situation.
Note: In this text, the masculine form is used to designate either sex.


Latest update: September 15, 2015

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