What if the victim wants the charges dropped?
Once a police investigation has begun after an allegation of domestic assault – whether an actual assault, mischief to property or a threat – the complainant’s wishes carry little weight, as officers are required to lay charges if they find evidence that a domestic assault has taken place.
I’ve had many cases where in the days, weeks or months after the alleged assault, the complainant says they were mistaken or perhaps over-reacted, and ask that the charges be dropped.
In all situations, any decision about charges is made by the Crown attorney. The complainant’s wishes will be considered but they are not a determinative factor in the process.
If a victim wants to recant an allegation or realize the situation was not as extreme or abusive as they first felt, their best bet is to have their legal counsel speak to the Crown attorney prosecuting the case. They may 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.
Factors the Crown will consider in deciding that request will include if the accused has prior involvement with the police and if there are allegations of stalking or controlling behaviour.
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.”
What are peace bonds and discharges?
If the court agrees, the trial can be averted with a peace bond, allowing the charges to be dropped in exchange for a promise of good behaviour and a commitment to keep the peace.
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.”
The usual terms of a peace bond state that the accused cannot contact or visit the complainant. They may be required to abstain from alcohol or non-prescription drug use, and they may also have to provide samples to prove their compliance with that rule.
If the conditions of the peace bond are met, the accused will have no criminal conviction and will not have to make an admission of guilt.
In contrast, a discharge is given if there is first an admission of guilt. The offence will usually appear on their record for a year. If that person does not violate the conditions of the discharge during that time, their record will be cleared.
According to the s. 730 (1) of the Code, “Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely.”
What if the Crown opts for a trial?
If the Crown attorney makes the decision to continue with a trial, a reluctant complainant can be subpoenaed and forced to testify. If they fail to attend, a warrant may be issued for their arrest. The police can physically bring them to court where they must tell the truth about the incident. If they exaggerated initially about the assault they can tell the court that. They will not be in trouble as long as they did not lie to police on purpose, and if they are honest and truthful at trial.
I’ve had a case where a man called the police, claiming his female partner had hit him with an object they kept in the bedroom. She was charged, but then the man realized he was not actually hit by her. He said their dispute was a very emotional moment where everything was moving fast, and he made an allegation of assault with a weapon that he later regretted.
He knew that he was wrong when he later looked for the object in question. It was still in their bedside table, and the layer of dust on top of it clearly indicated it was not used in the alleged assault.
He told the police they had a major dispute and that somehow in the course of that he hit his head, but they both agree it was not her fault. Nonetheless, the Crown pushed ahead for a trial, but on the first day agreed there was no longer a reasonable prospect of conviction, and charges against my client were withdrawn.
Why do some complainants recant?
Domestic assault incidents usually arise in circumstances where emotions are running high. In this situation, people may lie or exaggerate to the police, or sometimes their recollection of the events is unclear. Later on, they realize that what they told the police was inaccurate.
Many complainants are remorseful about calling the police and they want to reconcile with the accused, often for the sake of other family members. According to a University of Ottawa study, when women recant their original statement or otherwise indicate they want to stop prosecution of their partners, they are often treated as “bad witnesses” by the Crown.
“Because recanting is often the result of intimidation by violent partners or their friends or family members, some service providers stressed the need for Crown Attorneys to rely less on victims testifying and more on other evidence, earlier statements, and the testimony of other witnesses,” the study states.
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.”
Recanting is very common
It is not uncommon for people to recant the statement they first gave to police, though there are no official records showing how often that happens. According to a CBC story, one in 10 people in Canada’s territories reports they’ve been the victim of domestic violence and many of those later recant allegations.
"Probably 80 per cent of the women that I speak to recant their story, or regret reporting it," says a spokeswoman from a family shelter in Yellowknife. The reasons she gives for that include fears that they will not be able to support their families or won't have a roof over their heads if their partner goes to jail.
“Successful investigations or cases don't rely solely on the victim's testimony,” she says. “We know that in general, victims will recant ... a statement is a great thing to have, but it's not what you count on.”
What is written revocable consent?
If a domestic assault charge is laid, the defendant will be ordered not to return home or to speak or try to contact their partner. Since trials are usually a year or more away, that order can be a real strain on the accused, especially if they have children with the complainant.
As counsel for such a defendant, and if the complainant agrees, I will ask the court of a variation of the contact rules. A written revocable consent allows the accused to see and speak to the victim, and even live in the same household, in the months leading up to the trial.
It can be difficult to convince the Crown to allow this contact, because of concerns about the safety of the complainant as well as the trial process as a whole.
The major advice I give clients in this situation is that they cannot talk about the incident or the evidence they will give at trial. The court needs to hear their story about what happened, not a version that can be seen as putting their partner in a better light.
What is meant by no contact?
As the words imply, it simply means there is to be no direct communication between the accused and the complainant, either directly or indirectly. This includes telephone and in-person discussions as well as electronic contact, through text messages, email, Facebook, and other platforms. Contact through third-parties is also prohibited.
Why do I need a lawyer if there is a recant?
Just because the complainant has recanted does not mean domestic assault charges will be dropped. There are many variables at play here, such as whether KGB statements, named after a Supreme Court case, will be accepted by the court. This is the initial statement that a victim makes to police that is sometimes videotaped. They can be used in court in lieu of direct testimony provided certain strict conditions are met.
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