How do I get assault charges dropped?

Let’s get one thing clear: Every assault charge is serious and only the Crown Attorney’s office has the power to have it withdrawn. Even if the victim recants their testimony, the charge remains in place, which is a good reason to have a seasoned defence attorney at your side during the process.

Under Section 265 of the Criminal Code of Canada, assault is defined as the use of force, either directly or indirectly, against another without their consent. A threat or attempt to physically strike a person, irrespective of contact made, is considered a criminal assault. It can happen in a home setting or a drunken bar fight.

I’ve defended numerous clients facing this charge. While each case is different, I know how to help people in this situation. Here are some of the options.

Show that the offence was trivial

Sometimes it can be argued that the alleged assault is not serious enough to go to trial. An established principle of the common law is “de minimis non curat lex,” which translates as “the law does not concern itself with trifles.” The de minimis rule has application both in civil and in criminal jurisdictions and effectively means that the law should not get involved in circumstances where what has occurred is extremely inconsequential.

In criminal matters, counsel may use the de minimis rule as a defence, arguing that while an offence may be found to be technically made out, the court should disregard it on the basis of its triviality.

I was successful in defending a man charged with assault after a woman complained he had knocked her over. In response to my questions in court, she recounted the two of them had been tussling over a phone and she had been inadvertently knocked down in the process. She agreed it was accidental and that he did not intend to cause her harm.

Her testimony allowed me to argue this was an instance where the de minimis defence would be applicable and the judge agreed, dismissing the charge.

Go with a hybrid approach

If defendants are charged with simple assault, where no weapon was used and the injuries sustained by the complainant are minor, defence counsel can request a hybrid approach to justice, such as having the charges dropped if the defendant agrees to counselling and apologizing to the victim.

There are also diversion programs that require defendants to accept responsibility for their actions and agree to enroll in a rehabilitation program, along with counselling or community service. Once that is done, the charges will be withdrawn. This is not an option for those charged with aggravated assault due to the serious nature of that crime.

Agree to a peace bond

The Crown may offer a peace bond to deal with minor cases of assault, resulting in charges being withdrawn or stayed, that latter meaning the charge is not pursued and the issue of guilt or innocence is never determined. While agreeing to a peace bond does not mean you admit to the offence, it does send a message to the court that you agree it is reasonable for the complainant to be afraid of you. If you're not willing to make this admission, you cannot agree to the peace bond.

There are some very compelling reasons to agree to a peace bond. The main one is that the case will not go to trial and you will not have a criminal record, provided you follow the conditions in the bond, which usually last a year.

Some people don’t want to sign a peace bond as they feel its conditions are too stringent. After all, if they are charged with breaching a condition of the bond they cannot defend the breach by arguing that they did not agree with the condition.

Another factor to consider is that while it’s active, the peace bond will be visible on police record checks, affecting those hoping to work with vulnerable people such as children or senior citizens.

Avoid a criminal record with an absolute discharge

An absolute discharge is a sentencing option that allows you to avoid a criminal record after you have pleaded guilty to an offence. If you receive an absolute discharge you have no record going forward, whereas a conditional discharge requires you to comply with conditions stipulated by the court for a specified period of time.

Absolute discharges are rare but are given. In one case, two minors playing hockey got into a scuffle on ice, with a youth court finding one “guilty of carrying a weapon [a hockey stick] in committing an assault.” When the case was heard by a higher court, counsel for the player charged argued that that “given the isolated nature of this incident, it is in the public's interest that X receive the lightest sentence possible so that he becomes the most productive person he can be and have the least impediment to his future.”

The court agreed, and granted an absolute discharge, noting that, “Considering X's career plans to become an actor in the United States and the relatively low risk of recurrence, the Court considers that the appropriate sentence in the case at bar is an absolute discharge.”

Seek a pre-trial resolution:

If you are not eligible for other options, it may be worthwhile for your legal counsel to look at pre-trial resolutions with the Crown. This requires you to enter a guilty plea in exchange for a more favourable sentence, with the court recognizing that you have helped to avoid the expense and time commitment of a full trial.

What if the other party recants their testimony?

Victims in assault cases sometimes recant their statements that support the charges. Maybe because they realize they are exaggerating the incident. Or perhaps they were impaired by drugs or alcohol and as a result, they may be unsure if they were being truthful to the police when they made a statement.

In any case, a recanting will usually not persuade the Crown to drop the charges, especially in domestic assault cases. That’s because the Crown realizes that if there is a history of domestic violence in a relationship, there is a good chance that it will happen again. And people who are emotionally attached to one another may not appreciate these risks, so the Crown takes the approach that they must protect those unable to make the proper decisions.

In Ontario, police use virtually zero discretion for domestic charges. If any allegation of assault is made that can feasibly support a conviction, charges may be laid at the doorstep.

That being said, if the victim does recant their testimony and the judge feels that is sincere, that will be taken into account when reaching a judgment.

Seek a withdrawal of charges

Various factors may come into play here, such as if the assault was minor, if it was the first offence, if the accused has no criminal record and if it was an isolated incident. Ask your defence lawyer to engage in pre-trial discussions with the Crown to have the charges dropped in such situations.

Mount a strong defence

No one wants to make deals if they are innocent of the charges levelled against them. If you have a good reason why the assault charge should not stand up, explain that to your legal counsel so they can start building your defence.

You could argue self-defence, as you are allowed to protect yourself and repel attackers, but not to the point of striking someone who is down. Defence of property is another strategy that can be used when protecting your property as well as that belonging to others, again without using excessive force.

Charges dropped because of a technicality

When a technical issue arises that makes it inappropriate or unconstitutional to proceed, charges may be dropped by the Crown. Common technical reasons include Charter breaches such as the failure to fully disclose all evidence or the failure to proceed to trial within a reasonable amount of time.

Everyone makes mistakes, including the police. Sometimes they accidentally destroy or lose important evidence or fail to provide it to the prosecution in a timely matter. The accused has a right to full disclosure in advance of the trial, but occasionally that does not happen.

Court time is unpredictable, and sometimes matters get delayed or scheduled too far into the future. However, Canadians have a right to a trial within a reasonable time, as enshrined by s.11 of the Canadian Charter of Rights and Freedoms. In 2016, the Supreme Court handed down a decision defining what that time period is, setting a presumptive ceiling of 18 months between the charges and the trial in a provincial court without preliminary inquiry, or 30 months in other cases.

Experienced defence counsel makes a difference

If you are charged with assault, there are ways a knowledgeable lawyer can help you deal with that situation. I have years of experience in counselling defendants about the best way to approach their cases. Contact me for a free consultation so we can start planning your best defence.

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