What if a domestic assault complainant wants the charges dropped?

By Matthew Deshaye

If you are facing a criminal charge related to domestic assault, the complainant does not make the decision about whether or not to have the charges dropped. This is a decision which can only be made by a Crown prosecutor. The Crown prosecutor represents the state and is not the complainant’s lawyer. Because of this unique role, the complainant cannot tell the prosecutor what to do. However, the wishes of the complainant will often be taken into account by the Crown prosecutor when assessing the strength of their case and the public interest in pursuing charges against the accused person.

Here's what typically happens in cases involving domestic assault, also known as intimate partner violence.

• Someone contacts police, which leads to an investigation: An officer will interview the people involved and decide whether to lay a charge.
• The Crown prosecutor will review the evidence and decide whether to proceed with charges based on the evidence and public interest. The Crown always wants to ensure that the criminal justice system will not be brought into disrepute by cases it prosecutes.
• If the complainant says they no longer want to testify or cooperate, this can impact the strength of the case, but it does not automatically lead to the charges being dropped. The Crown will still pursue the case if there is enough evidence, maybe from other witnesses, physical evidence or recorded statements.
• If the case goes to trial, the complainant may be required to testify, even if they do not want to. In some cases, they may be subpoenaed to appear in court. A subpoena to appear in Court imposes a legal obligation to attend Court. Failure to attend Court after being issued a subpoena may result in a warrant issuing for the witness.
• The Crown will not withdraw the charges if there is any indication that the complainant is being pressured or threatened. In fact, those threats could lead to further charges.

Across Canada, domestic violence charges are taken very seriously by police and the judiciary. If officers are called to a home to investigate one of these crimes, there is a good chance someone will be led away in handcuffs.

In Alberta, officers are required to lay domestic assault charges if there is any credible evidence to support them. Once a police investigation begins, the complainant has almost no say in what charges are brought against the accused.

According to Statistics Canada, there were 196,990 incidents of assault investigated by police in 2022 across Canada, with 70,784 adults charged. Alberta saw 25,645 incidents in the same period, with 8,272 people charged.

Some complainants recant allegations

In some instances, a complainant may choose to recant their statement. A recant occurs when the complainant either changes their statement or advises authorities that the statement was untrue. This happens for several reasons, such as they were intoxicated or using drugs at the time, or they simply exaggerated or lied about what happened. Recantations may also occur when a complainant wants to see the charges dropped against an accused person. However, witnesses choosing to recant should seek independent legal advice due to the potential for criminal liability surrounding the making of a false allegation or due to misleading investigators.

Recants can come days, weeks or even months after the alleged assault.

The Department of Justice (DOJ) advises courts not to make assumptions when a complainant wants to recant testimony.

“Given the dynamics in which domestic violence occurs, it is not unusual for a complainant to be reluctant about testifying or to recant earlier allegations,” according to the DOJ. “Crown counsel should carefully consider these recantations – they may be truthful and sincere or they may be the product of intimidation and coercion.”

According to a document released by the Public Prosecution Service of Canada, it is common for victims in domestic assault cases to “demonstrate reluctance or unwillingness to participate in the criminal justice process … if the complainant refuses to testify, Crown counsel should consider whether other admissible evidence is sufficient to prove the domestic violence offence.”

A variety of charges can be laid

The most common charges laid in domestic cases include:

• Assault for actions such as pushing, slapping, punching.
• Criminal harassment or stalking which can happen either physically or online.
• Sexual abuse, including forceful acts, making pornographic videos, and use of degrading comments.
• Mischief, if an accused damages or breaks items
• Uttering threats against the complainant or others.
• Forcible confinement.
• Homicide charges can be laid if the complainant dies, or attempted murder charges if death was threatened.

How to get domestic assault charges dealt with

After reviewing the evidence against you, a criminal defence lawyer can meet with the Crown attorney to discuss alternatives to pursuing the charges. Factors that will improve your chances of charges avoiding a conviction or obtaining a favourable outcome include:

• if you had no prior involvement with police;
• you have no criminal record;
• this was a single incident rather than a recurring event;
• there were no children present in the home;
• there are no allegations of stalking or controlling behaviour;
• there was no weapon used;
• the complainant has recanted their statement; or
• there is evidence which contradicts the allegation of the complainant.

Peace bonds and discharges

Your lawyer may be able to get the Crown to agree to drop the charges in exchange for a peace bond or a discharge, depending on the circumstances and the severity of the alleged assault.

According to a DOJ fact sheet, a peace bond is “a protection order made by a court under s. 810 of the Criminal Code. It is used where an individual (the defendant) appears likely to commit a criminal offence, but there are no reasonable grounds to believe that an offence has actually been committed.”

A peace bond imposes specific conditions that must be met or you will face criminal charges. Peace bonds can be enforced anywhere in Canada and are in place for up to one year.

Common conditions include:

• To keep the peace and be of good behaviour.
• No contact the complainant of their children, either physically or through electronic communications or over the phone.
• Abstain from using non-prescription drugs or alcohol, and be required to provide bodily samples to ensure compliance.
• Do not own or use weapons.
• Pay, or promise to pay, a refundable surety (cash bond) to the court, which may be forfeited if you breach any conditions of the peace bond.
• Any other condition the court considers desirable to prevent harm.

If the conditions of the peace bond are met, you will not have a criminal record.

In contrast, a discharge may be given if there is first an admission of or a finding of guilt. An absolute or conditional discharge pursuant to section 730(1) of the Criminal Code is a type of sentence which deems the offender not to have been convicted of the criminal offence, despite a finding or admission of guilt. Practically speaking, this means that the offender will not receive a criminal record. However, under section 6.1(1) of the Criminal Records Act the imposition of an absolute discharge will still appear on a criminal record check for one year following the date of sentence and three years where a conditional discharge was imposed. Following these time periods, the absolute or conditional discharge will not appear on a record check.

Credibility is key at trial

Most domestic assault cases are built on “he said/she said” type evidence.

An experienced defence lawyer will try to identify gaps or inconsistencies in the complainant’s testimony through cross-examination, especially if what the complainant told officers at the time of the alleged event differs from what they give in testimony. By pointing out these contradictions, your attorney can raise questions about the complainant’s credibility.

Your attorney may also be able to show the domestic assault allegation is unfounded. Some of the reasons behind it could include:

• A custody dispute, with one partner trying to gain an upper hand in custody battles.
• Revenge, as personal vendettas that lead to false accusations.
• Mental health issues leading to distorted perceptions about what happened between two people.

Contact us for assistance

A conviction on a domestic assault charge can tear apart families and bring shame, not to mention the prospect of jail time. If you are facing a criminal offence related to alleged family violence, you need the assistance of an experienced criminal defence lawyer. After listening to your side of the story and examining the available evidence, the team at Dunn & Associates will begin to negotiate with the Crown prosecutors to secure the best outcome for your case. Contact us for a free consultation.