Updated: Feb 5, 2020
Domestic assault charges are life-altering events. In the blink of an eye, long-term partners are separated; houses vacated; husband and wife, boyfriend and girlfriend are prohibited from talking; and, if one is especially unlucky, children might be involved – resulting in supervision or even seizures by the CAS or other child welfare agency.
And that’s just the beginning. Domestic charges have a way, not only of placing a barrier between partners, but of creating massive difficulties for the family members or friends who become sureties; for the employer whose star employee is suddenly gone for days at a time; and for the accused, who now has to hire a criminal lawyer, make new arrangements for work (if they still have a job), and wonder how long it will take for their life to get back to usual.
The result is a legal nightmare that, for some, feels as frightening as it does unfair.
As any experienced domestic assault lawyer knows, domestic charges are especially fraught with risk. A toxic combination of guilt, emotional pain, and the law’s swift and seemingly uncaring treatment often creates an environment that makes compliance with bail emotionally challenging. In situations where one or more of the parties suffers from a substance abuse issue, the risk of a breach is elevated by a significant margin.
Although no two domestic assault cases are the same, some common myths and misconceptions about the role of the victim's wishes make the process especially challenging for defendants. Unsure why their domestic charges aren't being dropped, some of these defendants make the mistake of disobeying the court's orders. Suddenly, domestic charges that could have been dropped are part of a downward spiral of new charges. One domestic charge becomes multiple. Achieving bail becomes more difficult. Increased legal jeopardy means a diminished ability to work with a criminal defence lawyer, and less leverage to negotiate the an exceptional result.
Consider this common scenario. A married male in his 50s with unusual stressors in his life – say, a lost job - is charged with shoving and threatening his wife. The male was mildly intoxicated at the time and has no prior criminal record. The complainant, who needs time to process what has happened, will eventually decide that she wants the charges dropped.
"As any experienced domestic assault lawyer knows, domestic charges are especially fraught with risk. A toxic combination of guilt, emotional pain, and the law’s swift and seemingly uncaring treatment often creates an environment that makes compliance with bail emotionally challenging."
With the right guidance from an experienced domestic violence lawyer, a case like his could resolve by way of a complete withdrawal of the domestic charges. I have achieved this result in many cases myself, including in cases where the allegations or were much more severe.
Unfortunately, without the right guidance the defendant in this example often doesn’t benefit from having the domestic charges withdrawn. If he is lucky, his domestic violence charges will simply languish in the court system for months on end while he continues to live on strict bail conditions. Once the complainant's wishes become known to him, he wonder why the domestic violence charges aren’t being dropped. If he is unlucky, he will be arrested for new charges or his surety will revoke the bail.
I have seen this happen many, many times.
Suddenly, the domestic charges that should have been withdrawn are being worked into a “plea deal”. Despite the complainant’s wishes, the hardworking, loving husband who made a mistake, is sitting in jail with a criminal record for domestic violence.
Three Myths About the Complainant's Role in Ontario Domestic Violence Cases
As a seasoned domestic violence lawyer, I have represented both defendants and complainants in a broad range of domestic violence cases. Many of these clients come to me after trying to “steer their own ship,” believing that the domestic charges would eventually be withdrawn. By the time they visit my office, that ship has almost always either stalled or blown up in flames.
"[O]nce a police investigation has been triggered, a complainant’s wishes play little to no role in determining whether charges will be laid. In fact, as many domestic violence complainants already know, their ability to influence the entire legal process is limited."
Some of the problems faced by defendants in domestic cases stem flow from poor impulse control. But, in my experience, another set of complications results from a set of simple and false assumptions about domestic violence laws in Ontario. These false assumptions revolve around the wishes of the complainant, and whether and how these wishes impact the investigation or prosecution of domestic charges.
Let’s look at these two assumptions, and clarify them once and for all.
First Myth. “My partner never wanted to press the charges. This means the domestic violence charges will be withdrawn.”
Many people facing domestic charges in Ontario wonder why charges were laid in the first place. It may be that the complainant never wanted their partner to be charged; or that it was the defendant who called police, simply seeking to de-escalate a situation.
“She didn’t even want to press the charges,” clients often tell me, “So the domestic charges should be dropped.”
Not so fast.
The truth is: once a police investigation has been triggered, a complainant’s wishes play little to no role in determining whether charges will be laid. In fact, as many domestic violence complainants already know, their ability to influence any part of the legal process is extremely limited. Often times, prosecutors and police will do the exact opposite of what they want.
First, a word about "pressing charges".
As a domestic violence lawyer, I have heard this misleading turn of phrase more times than I’d care to count. So let’s be clear: the concept of “pressing charges” has no real currency in Canadian criminal law. Although the words may be used from time to time, the fact is that wherever sufficient evidence exists to support a charge, it is law enforcement officials – and law enforcement officials alone - who have the discretion (decision-making power) to make an arrest.
A complainant or victim’s desire to “press charges” is just one of the factors that can influence police in the exercise of this discretion. Consider this example: a teenager is caught red-handed “tagging” or spray-painting a local business. Assuming he is otherwise a willing witness in the investigation, the police may decline to charge if the business owner does not want to “press charges”.
Make no mistake, however. The discretion rests with the police. Assuming they have other evidence to support the charge, they may disregard the business owner’s wishes entirely. This would likely be the case, for example, if the teen in question had a record for similar past conduct.
Put another way, under Canadian law a victim’s wishes forms only a part of whether police lay criminal charges. Just how much of a part is dependant on a variety of factors - especially the nature of the investigation. Which takes us to the central question:
In domestic assault investigations, can the victim “decline to press charges”?
The shocking answer is no. They can’t. Even if a domestic complainant does not want to press charges, current policing policy in Ontario requires frontline officers to lay charges wherever a credible allegation of domestic violence has been made.
What, exactly, does this mean? In practise, it means that the risk of an arrest is extremely high any time police attend in response to a domestic violence call. Once on scene, the first credible claim of criminal conduct – whether an actual assault, mischief to property, or a threat – will almost certainly result in an arrest, regardless of the original caller's wishes.
"[T]he risk of an arrest is extremely high any time police attend in response to a domestic violence call. Once on scene, the first credible claim of criminal conduct – whether an actual assault, mischief to property, or a threat – will almost always result in an arrest, regardless of the original caller's wishes."
If two parties make credible claims again each other, dual charges could arise. The claims could be heavily qualified (“We were both arguing and it was minor”); it could be totally uncorroborated (i.e. no injuries, no witnesses); it could even be recanted immediately afterward (“I didn’t mean it, I was just angry!”). In my experience as a domestic violence lawyer, it hardly matters. Once the words are uttered, the must-charge policy does the work.
First Lesson. A Domestic Violence Complainant's Purpose for Calling Police Doesn't Matter. Once on Scene, the Chances of an Arrest are High.
Domestic charges in Ontario are unique in this regard. Their policy mandate, laudable as it is in theory, is a knee-jerk response to decades of problematic under-policing in domestic violence scenarios; an era when real victims of long-term domestic abuse were left by police to sort out their “family problems” alone.
As with most knee-jerk policies, however, Ontario's must-charge policy has replaced a handful of large tragedies with a thousand small ones: a clogged court system, needless charges, lazy investigations, lives turned upside down. Good for a criminal defence law firm like mine. Bad for Canadians.
It is important for domestic assault complainants to appreciate that the initial reason for their call to the police won’t help them once the investigative machine has been set in motion. It does not matter if the call was placed for mental health support; it does not matter if they just wanted the police to “cool things down”; in the most tragic cases, it often does not matter if it was the real victim who assaulted the assaulter. If the evidence is there – and it doesn’t need to be much – the police will lay the charge.
Second Myth. “My partner wants the domestic violence charges dropped. This means they will be dropped right away and I will be able to speak with her.”
So far we’ve learned that a complainant doesn’t get to decide whether “charges are pressed”. We also know that domestic charges don’t get dropped just because they weren’t intended in the first place.
But what happens once the court process begins? Surely the domestic charges get dropped if that’s what the complainant wants?
Not so fast.
Ontario’s must-charge domestic policy has resulted in an outsize volume of domestic violence cases in our court system. Because of the sheer volume of cases, domestic cases are often prosecuted by special “domestic violence teams,” and may even appear in a special domestic violence courts. The purpose of these special courts and prosecution teams is not purely an administrative one. They reflect the unique legal challenges that domestic cases in Ontario often present.
Among the most common of these challenges is the “remorseful” or “recanting” complainant.
As any domestic assault lawyer knows, the remorseful domestic violence complainant is a common phenomenon. What do we mean by the “remorseful” complainant? Generally speaking, we mean the complainant who does not dispute that an incident of a domestic nature occurred, but who wants the charges dropped anyway. He or she generally expects to reconcile with the accused; regrets the involvement of police or the criminal justice system; and is looking for a rapid end to the prosecution process so that the couple can get on with their lives.
"Contrary to popular belief...domestic violence complainants do not drive the prosecution process. Just like their inability to decide whether charges are laid, they also lack the power to determine whether the domestic charges are prosecuted."
A rarer, but still not uncommon occurrence, is the recanting domestic violence complainant. Like the remorseful complainant, the recanting complainant wants the charges dropped. But he or she will go a step further by taking the position that the evidence gathered by police was either mistaken or misleading. In some cases, the recanting complainant will even contradict his or her own prior statement by providing a fresh one, with the purpose of terminating the prosecution.
As an experienced domestic assault lawyer, a recanting or remorseful complainant has formed part of at least a quarter of all the domestic cases I’ve handled. That’s a huge number. Given their frequency, defendants are often stunned to learn that complainants don’t drive the prosecution process. In other words, their wishes are not the Crown’s command.
There are a variety of channels through which a domestic violence complainant can make his or her wishes known. Obviously, at the time of defendant's arrest they will communicate with police; throughout the actual prosecution process, they may be contacted by the Victim Witness Assistance Program, or, where one is available, a Bail Safety Project (in Hamilton, for example). Some Crown Attorneys and criminal defence lawyers will even pick up the phone and speak with complainants directly in order to ascertain their wishes as it relates to dropping or proceeding with the charges.
Contrary to popular belief, however, domestic violence complainants do not drive the prosecution process. Just like their inability to decide whether charges are laid, they also lack the power to determine whether charges are prosecuted.
Prosecutors do not represent complainants. They represent the public interest. Accordingly, the input complainants provide is just one factor that a prosecutor will consider in determining how and whether to proceed with the domestic violence charges under consideration. In many cases, if a skilled criminal defence lawyer is on the case, favourable information provided by a complainant can "tip the balance" in favour of an excellent result. In other cases, however, prosecutors can - and are generally entitled to - disregard a remorseful or even a recanting complainant's wishes.
Second Lesson. Once Domestic Violence Charges have been Laid, Complainants DO NOT Get to Decide Whether the Defendant is Prosecuted.
Both remorseful and recanting domestic complainants should hire a criminal lawyer who understand domestic violence laws in Ontario. Because these clients often feel powerless, their anxiousness to obtain a specific outcome frequently causes them to make serious, consequential mistakes. In a rush to get domestic charges dropped, some these clients may fail to recognize their own vulnerability and legitimate victimization. In such cases, the patient guidance of an experienced domestic violence lawyer can help them plan for safety; think carefully about the legal case; and, where desired, express their wishes to the Crown in a manner that is safe and effective.
In other cases, victims of domestic violence interfere with the criminal justice system in a manner that risks their own charge and arrest. In such cases, the provision of letters or statements to the Crown or police without legal advice can lead to charges like obstruction of justice, public mischief, or even perjury.
Although the wishes of a domestic violence complainant will be considered by the Crown, these do not guarantee any specific outcome.
Third Myth. “The complainant has totally recanted her original statement. Now, surely, the domestic violence charges will be dropped.”
The last of our mistaken assumptions is also the one that causes the most frustration for clients. And understandably so.
“How can the Crown proceed with the charges if their only witness says the allegations are not true?” clients ask me.
It’s an excellent question. Regrettably, answering it properly would require a full course on the law of evidence, sprinkled with an overview of developments in Canadian jurisprudence on the principled approach to hearsay. For everyone else, you can always hire an experienced domestic assault lawyer.
"Both remorseful and recanting domestic complainants should hire a criminal lawyer who understand domestic violence laws in Ontario. Because these clients often feel powerless, their anxiousness to obtain a specific outcome frequently causes them to make serious, consequential mistakes."
For those of you adventurous enough to slog through Canadian cases, here are a few Supreme Court decisions to get you going on the topic:
Third Lesson. A "Remorseful or "Recanting" Complainant Does Not Necessarily Terminate the Charges.
The bottom line in these monumental Supreme Court cases? A recanting witness doesn’t automatically result in domestic charges being dropped. In some domestic violence trials, in fact, the judge can and will prefer the complainant's original statement.
This development in Canadian criminal law equips the skilled prosecutor with a deadly weapon. Where the recanting domestic complainant used to put an end to domestic violence prosecutions, today they simply create a new obstacle: two competing versions of what happened. Khan, Starr, Khelowan and a host of other cases essentially permits a judge to choose
The existence of such complainants also creates one of the most pernicious and hard-to-dispel myths in domestic violence cases, leading us to our third lesson.
Wrapping Up. If You’re Facing Domestic Assault Charges, Get Yourself a Skilled Criminal Lawyer.
Canadians facing domestic violence charges are often stunned by how swiftly and harshly the state interferes with their life for what is often trivial conduct. Their sense of outrage is compounded when they realize that the "victim" in these matters has virtually no power to control the process.
In Ontario, domestic violence complainants have little to no ability to prevent the police from laying a charge; and though their wishes may influence the prosecution in appropriate cases, they have little to no power to actually put a stop to a domestic case.
In fact, as myth no. 3 above shows, a skilled prosecutor can and often will refuse to withdraw domestic charges even where the complainant has significantly changed or "recanted" their testimony.
However pervasive the three myths in this article might be, they represent just one small facet of a good domestic violence lawyer's assessment of a case. Whatever a complainant's wishes might be, a skilled criminal defence lawyer can and must consider dozens of other nuances: other witness testimony, motives to lie, past occurrences, the law of bad character evidence, and, of course, the client's version of what happened.
The bottom line? Domestic violence cases are complicated. They merge a hyper-vigilant justice system with emotional clients, high expectations, and a sophisticated overlay of legal rules the vast majority of Canadians think they understand - but don't.
If you've been charged with a domestic violence offence, or are a complainant in search of advice, contact Shaffie Law today for a complementary consultation. Many of our clients' domestic charges have been withdrawn, and we pride ourselves on helping to empower every Canadian arrive at a clear understanding of their legal rights. Don't delay: hire an experienced criminal lawyer today.
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