PROTOCOL BETWEEN ABORIGINAL LEGAL SERVICES OF TORONTO
AND THE TORONTO CROWN ATTORNEY'S OFFICE
WITH REGARD TO THE COMMUNITY COUNCIL PROJECT
The Community Council is a project designed, developed and operated by Aboriginal Legal
Services of Toronto (ALST) that will allow the Native community of Toronto to take a measure of
control over the manner in which the criminal justice system deals with Native offenders. The
project uses the diversion model to take the sentencing of some Native offenders out of the courts,
and put it in the hands of the Community Council - made up of members of the Toronto Native
The rationale behind the Community Council project is that the Native community best knows how
to reach native offenders. It is the expectation of ALST that this project will be more relevant and
meaningful to both offenders and victims and thus will ultimately reduce the recidivism rates among
The concept of the Community Council is not new - it is the way justice was delivered in Native
communities in Central and Eastern Canada for centuries before the arrival of Europeans to North
America and also the way that disputes continue to be informally resolved in many reserve
community across the country - however this is the first project. Regular meetings between ALST
and the Crown Attorneys' office will be required to ensure that the project works in the best
interests of all parties concerned and in the pubic interest.
The framework for the operation of this program is the subject of an agreement between the
Ministry of the Attorney General and ALST. The following protocol will outline the manner in which
ALST and the Crown Attorneys will work together to further the goals of the project.
Initially, the Community Council will deal only with property and / or victimless crimes . The decision
to restrict the type of cases to be heard by the Council has been undertaken by ALST as a result
of consultations with the Native community to address the concerns of both offenders and victims
of violence. ALST anticipates extending the range of offenders amenable to Council decisions.
The specific protocol between ALST and the Crown Attorneys' office is as follows:
1. ALST's Adult Criminal Court Workers at Old City Hall and Collage Park will be solely responsible
for identifying and selecting Native people to participate in the program.
2. Once a Court Worker identifies an individual who might participate in the program, he or she will
contact the Community Council Co-ordinator determine if the individual has previously been before
the Council and whether or not the individual complied with the Council's decision .
3. a) The Court Worker will then go to the Assistant Crown Attorney responsible for the case ( or
if that person is not available, the Team Leader of the particular court) and ask that the case be
diverted to the Council. The Assistant Crown Attorney will endeavour to make his or her decision
regarding diversion as quickly as possible. Where the Assistant Crown Attorney is consenting to
diversion, he or she will first obtain the approval of the Team Leader. The approvals of the
Assistant Crown Attorney and the Team Leader will be evidenced by their signatures on the
consent form from described in Paragraph 4.
b) While the nature of the offence committed by the individual will be a factor in the determination
of whether or not to divert the case by the Assistant Crown Attorney, no offences are inherently
ineligible for diversion. As well, no individual, by virtue solely of his or her prior criminal record, is
ineligible for diversion to the Council.
c) When the Court Worker requests the Assistant Crown Attorney consider diverting an individual,
the Court Worker will indicate to the Assistant Crown Attorney whether the individual in question
has previously been before the Council. If the individual has been before the Council previously,
the Court Worker will provide details around the Council's decision. The fact that an individual has
been before the Council previously, has successfully complied with the Council's decision and has
subsequently re-offended, is not, in and of itself, a bar to diversion to the Council on another
4. a) Once consent has been received from the Assistant Crown Attorney to divert a case, the
individual in question will be asked if he or she wishes to participate in the Community Council
Program. If the individual indicates that he or she wishes to do so, the individual will then discuss
the matter with Duty Counsel who will provide the individual with independent legal advice. If Duty
Counsel concludes that the individual has a defence on the merits, diversion will not proceed. If the
individual does not have a defence on the merits and consents to the diversion, he or she will sign
a consent form in the presence of Duty Counsel.
b) The consent form will indicate that the individual admits having committed the offence (or one
of the offences) with which he or her is charged and consents to participating in the Council
process. The form will also indicate that the individual consents to the release of information
concerning the circumstances of the offence, relevant police information and background
information on the individual to the Court Worker, the Community Council Co-ordinator and the
members of the Community Council.
5. a) Following the discussion with Duty Counsel, the Court Worker will inform the Assistant Crown
Attorney whether the individual has consented to the diversion.
b) If the individual has consented to the diversion, the Assistant Crown Attorney will supply the
Court Worker with a copy of the Crown brief - the brief will include the police report of the incident
and the statement( s ), if any, of the victim and the offender and other relevant material. The
Assistant Crown Attorney will also furnish the Court Worker with information regarding any prior
convictions of the individual.
c) If the individual has not consented to diversion - or if Duty Counsel has determined that diversion
is not appropriate - the fact that the accused discussed diversion to the Community Council will not
be raised by the Assistant Crown Attorney at trial.
6. Where the individual has consented to diversion to the Community Council and steps 1-5
(above) have been completed, the Assistant Crown Attorney will attend in Court and, on his or her
own motion, either stay or withdraw the charge(s) against the individual.
7. The success of the Community Council program depends in large measure upon victim
participation in the process. For this reason, after a case has been diverted, all efforts will be made
by ALST to ensure that the victim takes part in the Council hearing.
8. If the individual fails to appear at the Council hearing, the Court Worker will inform the Assistant
Crown Attorney who initially dealt with the case of this fact. The Assistant Crown Attorney may
choose to revive the charge(s) at the time.
9. Following a completed hearing, the Court Worker will inform the Assistant Crown Attorney who
initially dealt with the case of the Council's decision. If the individual does not comply with the
decision of the Council, charges will not be revived except in exceptional circumstances. Individuals
who do not comply with the decisions of the Council will not be eligible for diversion to the Council
on other matters for a particular period of time. In any event, as noted in 3(c) above, the Assistant
Crown Attorney will always be informed if an individual seeking diversion to the Council has been
before the Council previously, and will also be informed of the circumstances relating to the
Council's decision, including the individual's compliance or noncompliance with the decision.
10. If the Court Worker become aware of individuals charged with offences in the perimeter courts
(Scarborough, North York and Etobicoke) they may deal with Assistant Crown Attorney in those
courts with regard to item 1 - 5. Once it has been agreed that the case will be diverted, the matter
will be sent down to either Collage Park or Old City Hall, and the stay or withdrawal will be made
in that Court.
11. This protocol will be the subject of regular review by both Crown Attorney and Aboriginal Legal Services of Toronto.