The Federal and Provincial Governments have developed policies and guidelines regarding the use of alternative measures programs.
In September, 1996, a number of amendments were made to the Criminal Code of Canada. Bill C-41 authorized the use of community-based sentencing alternatives and emphasized that incarceration should be used as a last resort. The use of alternative measures is authorized in Section 717 (1) of the Criminal Code, which states:
717 (1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:
a) The measures are part of a program of alternative measures authorized by the Attorney General or the Attorney General’s delegate or authorized by a person, or a person within a class of persons, designated by the Lieutenant Governor in Council of a province;
For youth cases, there is an emphasis on using alternative measures whenever possible and reserving retribution for the most serious, indictable offenses. Alternative measures are covered in Section 10 (1) of the Youth Criminal Justice Act, which states:
10 (1) An extrajudicial sanction may be used to deal with a young person alleged to have committed an offence only if the young person cannot be adequately dealt with by a warning, caution or referral mentioned in Section 6, 7, or 8 because of the seriousness of the offence, the nature and number of previous offences committed by the young person or any other aggravating circumstances.
10 (2) An extrajudicial sanction may be used only if:
a) It is part of sanctions that may be authorized by the Attorney General or authorized by a person, of a member of a class of persons, designated by the Lieutenant Governor in Council of the province;
b) The person who is considering whether to use the extrajudicial sanction is satisfied that it would be appropriate, having regard to the needs of the young person and the interests of society;
c) The young person has, before consenting to be subject to the extrajudicial sanction, been advised of his or her right to be represented by counsel and been given a reasonable opportunity to consult with counsel;
d) The young person accepts responsibility for the act or omission that forms the basis of the offence that he or she is alleged to have committed;
e) There is, in the opinion of the Attorney General, sufficient evidence to proceed with the prosecution of the offence; and
f) The prosecution of the offence is not in any way barred at law
Although the Criminal Code and the Youth Criminal Justice Act give legislative authority for alternative measures programs, the provinces are responsible for giving guidance in developing these programs. Moreover, the provinces can aid in decision making; everyone, including the broader community, has a stake in ensuring that the programs run appropriately.
In 1995, the Government of Saskatchewan developed the Restorative Justice Strategy and made a commitment to implement restorative justice principles into the justice system.
The Saskatchewan Justice Diversion Program Policy (1996) applies to the alternative measures programs for adults while the Saskatchewan Social Services Diversion Program Policy (1997) applies to alternative measures programs for youth. These policies define the purpose, authority, eligibility and exclusionary criteria of alternative measures programs.