Two weeks after the argument, she calls the police station and says she wants to drop the charges. They had been drinking, she says, and she overreacted. She tells the officer she needs him home because the rent is due and the kids keep asking for their father. The officer is polite, but he says that it’s not up to her. She hangs up confused and a little angry. It was her complaint. Why isn’t it her decision?
This situation comes up very often, in every kind of case but particularly in domestic ones. Television tells people that a victim can “press charges” and take them back again. Canadian law doesn’t work that way. Once a charge is laid, it belongs to the state. A complainant’s wishes can matter a great deal, but they don’t decide the outcome.
This article is for both complainants who are having second thoughts and accused people hoping the case will now go away. It’s general information only, not legal advice. Each person’s situation is different, and the two people involved can’t get advice from the same lawyer.
Whose Decision It Is
Police lay most charges in Ontario, on reasonable grounds. Afterward, a Crown prosecutor takes over and decides whether the prosecution goes ahead. Prosecutorial discretion is an independent function that courts rarely second-guess. It isn’t exercised on behalf of the complainant. Crown attorneys are ministers of justice representing the public, not the complainant’s personal lawyer.
Under Ontario’s Crown Prosecution Manual, a charge may only proceed if there is a reasonable prospect of conviction and if it’s in the public interest. These two questions are asked throughout a case, not only at the start.
The complainant’s wishes feed into both tests, in different ways:
- Reasonable prospect of conviction. If the main witness now gives a different account, or won’t cooperate, the Crown must think about what evidence remains and how reliable it is.
- Public interest. The manual lists the circumstances and views of the victim, including safety concerns, among the factors to consider. No single factor is decisive. Others include the seriousness of the incident, the accused’s history and whether there are any alternatives.
So a complainant’s views count, but they’re weighed alongside other things.
Domestic Cases Have Their Own Direction
Intimate partner cases get special treatment because of what’s known about how these relationships work. Ontario’s directive on intimate partner violence says a prosecutor must not withdraw charges solely because the victim asks. It also says that it will usually be in the public interest to go ahead with these prosecutions, although each case is decided on its own facts.
The directive recognizes that victims may face fear for themselves and their children, pressure from family, money worries, childcare problems, immigration concerns and the emotional bonds of the relationship. A request to drop charges may come from a real change of heart, from a genuine belief that things were exaggerated, or from pressure. A prosecutor has no way of knowing which unless they look into it, which is why such requests are examined with care.
When someone recants or refuses to testify, the directive tells the Crown to consider the reasons, whether the case can be proven with other evidence, and whether an adjournment is appropriate. Other kinds of offences aren’t covered by that directive, but similar questions arise. In a neighbour dispute or a minor assault between friends, a complainant’s reluctance may carry more practical weight.
What a Complainant Can Do
If you’re a complainant and you want the case to end, or your views have changed, there are appropriate ways to say so.
Tell the Crown’s office, not just the police. The officer in charge can pass it on, but the prosecutor makes the decision. The Victim/Witness Assistance Program, which operates in Ontario courthouses, can also help you communicate your views and explain what’s happening. Its staff work with victims and witnesses, not as your personal lawyer.
Get independent legal advice. The Crown can’t advise you, and neither can the accused’s lawyer. A separate lawyer can review what you may be facing, including any concerns about an earlier statement, and help you put your views in writing. This is especially useful if your earlier statement was sworn or if you’re now saying that it was wrong.
Say what’s true. If your earlier account was accurate but you no longer want to proceed, you should say that plainly. If some part of it wasn’t accurate, tell a lawyer about it before you speak to anyone else. Knowingly giving a false statement to police or lying under oath can have serious criminal consequences, including public mischief or perjury. These aren’t threats, and they’re rarely the outcome for someone who’s honestly correcting a record. But you should get advice before you do it.
Think about safety. If you’re being pressured to change your story, tell someone you trust, contact Victim Services of Peel, or call Peel Regional Police. Asking for a change to a no-contact condition is one thing. Being leaned on is another.
The Canadian Victims Bill of Rights gives victims rights to information, protection and participation in the process. It doesn’t give a veto. Still, you can ask for information about the status of the case and to have your views considered. Ask the Crown or the Victim/Witness Assistance Program about whether your views can be passed to the court too.
Can a Complainant Be Forced to Testify?
Yes. If a complainant won’t attend, the Crown can have them served with a subpoena under section 700. A person who fails to obey can be arrested on a warrant under section 705 and brought to court. Once there, a witness who refuses to be sworn or answer questions may be held under section 545, with the possibility of being kept in custody for short periods of time.
Prosecutors don’t necessarily take these steps in every case, particularly with vulnerable witnesses. Still, you shouldn’t assume that because you’ve said you won’t come, you won’t have to. If you receive a subpoena, you need to attend, and it’s better to arrive with independent advice than to ignore it. If you need supports such as a screen or a support person, ask. They might be available.
When the Evidence Stays Without the Witness
Some people assume that if the complainant recants, the case must fall apart. Often it does, but sometimes it doesn’t. The Crown may still have:
- 911 calls;
- body-worn camera or police video;
- photographs of injuries or property damage;
- hospital records;
- statements by neighbours or other witnesses;
- texts or messages sent by the accused;
- admissions made to police.
Earlier statements can matter too. The Supreme Court of Canada held in R. v. K.G.B. that a witness’s prior inconsistent statement can, in some circumstances, be admitted for the truth of its contents when it was made under circumstances providing the required reliability, such as a videotaped statement under oath with a warning about false statements. Hearsay rules later developed further in cases such as R. v. Bradshaw. So a complainant who says in the witness box “that never happened” may hear their old video played in court, with the judge deciding what to believe.
Section 9 of the Canada Evidence Act also allows the Crown, in certain cases, to challenge its own witness with earlier statements. It’s a technical area. The takeaway is that recanting doesn’t necessarily end a case, and it can make testimony a difficult experience.
A Warning for the Accused and Their Family
If you’re the accused, this is the most important part of the article. Do not contact the complainant to ask them to drop the charges. Don’t get your mother, your brother or a friend to do it either. Doing so can be disastrous, for several reasons.
First, most release conditions forbid direct or indirect contact. Asking a relative to pass on a message is indirect contact. It’s a separate criminal charge under section 145, and it can cost you your release. That’s true even if the complainant called you first or was glad to hear from you.
Second, trying to persuade a witness not to testify or to change their evidence may amount to obstructing justice under section 139, a far more serious offence than many of the charges it relates to. Offers of money, promises to move out, or tearful appeals could all look like pressure when they’re read aloud in court.
Third, any message can become evidence. A text saying “please tell them nothing happened” might read like an admission.
There’s a proper way to do this. Your lawyer can communicate with the Crown. If the complainant has independent advice, that lawyer can reach out to the Crown on their behalf. Your lawyer can also request a change to your bail conditions if the complainant supports contact, and a court order can change these terms. Until it does, the original terms still apply, no matter what anyone says.
Possible Ways a Case May Resolve
When the complainant’s views have changed, the case doesn’t necessarily go either to trial or to withdrawal. A few other routes may be open, depending on the charge, evidence and accused’s history.
Withdrawal. The Crown may withdraw charges if there’s no longer a reasonable prospect of conviction or it isn’t in the public interest. It’s expected to take reasonable steps to tell the victim and the officer before doing so.
A peace bond. Under section 810, the accused may agree to keep the peace and follow conditions for a period of up to a year, in exchange for the charge being withdrawn. It’s not a guilty plea, but it is a court order, and breaking it is an offence. The complainant’s views can influence this.
Diversion or counselling. Some programs let a case end after the accused completes a program or other steps. Availability depends on policy and on the offence.
A plea to a different offence or a discharge. If there’s a strong case, the complainant’s position may still influence what the Crown is prepared to accept and what a judge considers an appropriate sentence.
A trial, where the complainant testifies differently. A judge decides what evidence to believe, and may acquit, or convict on the remaining evidence. At that point, the Crown may invite no evidence if the case has collapsed, and a judge may dismiss the charge.
None of these is automatic. The prosecutor’s assessment and the facts of the case determine what’s realistic.
Family Court and Other Effects
Remember that withdrawal of a criminal charge doesn’t erase other proceedings. A family court case about parenting or the matrimonial home can continue. Family court uses a lower standard of proof and may hear about the same events. A complainant’s request to drop the case isn’t necessarily the end of children’s aid involvement, immigration issues or a workplace investigation. Someone considering any of these steps should think about the wider picture, not just the criminal case.
Finding the Right Help
If you’ve made a complaint and you’re unsure what to do, get independent advice and consider contacting the Victim/Witness Assistance Program. If you’re the one charged, the firm’s criminal law page outlines what we do, and our Brampton page has local information. You can contact us to speak with a lawyer about your own position. Please keep in mind that a law firm can only act for one side in a case, and that we won’t be able to advise both the complainant and the accused on the same matter.
The criminal process in Peel may feel out of step with how a family or a friendship actually works. The way through it starts with knowing who actually makes the decision, and then going to them, the proper way, through the right people.