The Power of Affidavits in Domestic Assault Cases: A Comprehensive Guide
As a criminal lawyer specializing in domestic assault cases I hear the word affidavit a lot. In fact, about half the clients who call my firm after a domestic charge express the hope that their partner will get an affidavit to help them. Sometimes they've heard as much from a mutual friend or relative, or even from the complainant herself in a text or email.
“Don’t worry, I'll get an affidavit to drop the charges,” the whispers go.
“Don’t worry, Mr. Shaffie, she’ll get an affidavit to drop the charges,” the client confides.
“I’m not worried,” I usually reply, “Because my approach to your case doesn't depend on an affidavit. Besides, she probably isn't going to get one, anyway."
Am I just being a pessimist? Have I built my law firm’s reputation for getting domestic charges dropped on the crushed hopes and expectations of my clients?
Not quite. I just happen to know that the vast majority of Ontarians who make and receive promises about affidavits following a domestic charge have no idea what affidavits are, what they’re designed to do, or what risks they carry. I also happen to know that as soon as the parties put away the search engine and speak to an experienced domestic violence lawyer instead, those promises tend to go silent.
It would not be an exaggeration to say that for every twenty cases I handle where a client genuinely believes their partner will obtain an affidavit, only one actually materializes. Similarly, for every twenty complainants who call my law firm asking if we “do affidavits”, only one will actually proceed once they understand the risks and benefits.
Once police are called to the scene of a domestic disturbance, there is a very real chance somebody is going to leave in handcuffs – whether the parties want it or not.This is because of a little-known policy called “mandatory charging."
So what gives? What exactly is a domestic assault affidavit, and why does so much talk about them lead to little more than dashed hopes and despair? Most important, why do I believe so strongly that Ontarians facing domestic charges should put away their faith in the affidavit, and replace it with trust in their lawyer?
As part of my law firm’s commitment to providing high quality legal content to Canadians, we answer these questions and more in today’s article. As always, the contents of this blog are not legal advice, so you should not take or decline to take any action based on what you read here. If you require legal advice, contact my law firm today.
The Lure of Affidavits in Domestic Assault Cases
Before we turn to explaining what an affidavit is, I think it's important to recognize why they attract so much attention in domestic cases in the first place.
My law firm specializes in defending domestic assault charges, so we know first-hand just how demoralizing domestic charges can be. Domestic charges can devastate families and fracture relationships. They add fear and anxiety to what is often already a difficult emotional landscape. And contrary to popular belief, a surprising number of domestic charges are laid against the express wishes of the very victims they’re supposed to protect.
As I’ve mentioned many times, once police are called to the scene of a domestic disturbance, there is a very real chance somebody is going to leave in handcuffs – whether the parties want it or not. This is because of a little-known policy called “mandatory charging."
Mandatory charging was designed to correct for decades of police turning a blind eye to domestic abuse. The policy is sensible in many respects, and its goal of re-engineering attitudes about domestic violence is truly a good thing. But like any sweeping policy, mandatory charging has replaced old problems with new ones. This is especially true in cases where couples who love each other and want to stay together are told by police they can’t.
Unwanted domestic assault charges are rampant in Ontario. I know this because I’ve represented hundreds of Ontarians involved in them. These charges are usually the direct result of mandatory charging; and their existence might be forgiven if Ontario’s court system were simple and efficient. But for those couples who want to resume contact after a domestic charge, Ontario's court system proves slow, confusing and often just as counter-intuitive as the police.
First court appearances are often many weeks in the future. Cases drag on for months at a time. Crown prosecutors seek tough sentences, even for first-offenders. Removing no contact orders proves much harder than anyone imagined. And worst of all, victims who were ignored by police often feel like their wishes continue to fall on deaf ears.
Ontarians caught in this position simply don't know what to do after a domestic charge. Feeling increasing despair, it's little surprise they go searching for a solution: something, anything that might restore control over their families and their lives. Enter the domestic assault affidavit, an apparently simple and elegant tool that promises to make unwanted domestic assault charges go away.
Are affidavits truly a magic wand for unwanted domestic charges? Or are they just another source of disappointment in the complex web of the legal system?
Let’s have a look.
What is an affidavit?
An affidavit is simply a statement. The person making the statement is called an “affiant”. In domestic assault cases, that’s usually the victim or complainant. What makes an affidavit special is that it is sworn, meaning that it is given under oath to a person called a “commissioner of oaths”. This is what gives affidavits their special weight - but it also attracts risks.
Because they are sworn statements, affidavits possess special power but also attract special responsibility.
We have all seen television shows where a witness raises their right hand and promises to tell the truth, the whole truth and nothing but the truth. After being sworn the witness gives testimony in the form of questions and answers. An affidavit is an out-of-court version of the same thing, normally prepared with the assistance of a lawyer. In domestic assault cases, the victim prepares the affidavit, swears it, then gives it to the Crown Attorney and defence lawyer for review.
What does a domestic assault affidavit do?
An affidavit is simply a vehicle for furnishing new evidence. In domestic assault cases, affidavits are usually used to permit a victim to expand upon, clarify, revise, or recant (take back) what was previously said to police. Most victims seeking to prepare an affidavit do so with the objective of helping to get the domestic charges dropped.
Can an affidavit help to get domestic charges dropped?
Because affidavits are sworn statements made directly by the complainant, they can have a profound impact on the course of a domestic assault case. Depending on the contents of the affidavit and the other evidence in the case, this can include the full and prompt withdrawal of the charges.
An affidavit is simply a vehicle. What goes inside that vehicle – the things a witness says under oath – is the most important factor determining the impact an affidavit is likely to have on a given domestic case.
However, there are risks associated with the preparation of an affidavit that complainants should carefully consider. Furthermore, affidavits vary significantly in terms of quality, effectiveness, and the degree to which they expose affiants to risk. For this reason, the starting point in the preparation of any affidavit is a thorough consultation with an experienced domestic violence lawyer.
What should an affidavit include?
The potential impact of an affidavit on a given domestic violence case depends mainly on two factors: the actual contents of the affidavit, and the other evidence which has been collected by police. Let’s examine these two factors in greater detail.
a. The actual contents of the affidavit
An affidavit is simply a vehicle. What goes inside that vehicle – the things a witness actually says under oath – is the most important factor determining the impact an affidavit is likely to have on a given domestic case.
Take, for example, the common line that a complainant did not realize their partner was going to be charged, does not want the charges, and that they wish to resume contact with their partner as soon as possible. Statements like these are essentially useless in affidavit form. They merely express the complainant’s intentions. Statements of intention are of limited value in most domestic cases, and could just as easily be communicated to the Crown in non-affidavit form.
Because affidavits are sworn statements made directly by the complainant, they can have a profound impact on the course of a domestic assault case. Depending on the contents of the affidavit and the other evidence in the case, this can include the full and prompt withdrawal of the domestic charges.
This is usually the first shock experienced by complainants who consult with me about affidavits. Affidavits are not vehicles for expressing wishes; they are designed to present important new evidence. In the context of a domestic violence case, that means clarifying what happened: in the relationship, during the conflict, and in the immediate aftermath of police involvement.
b. The other evidence in the domestic assault case
Which leads to our second point: affidavits don't exist in a vacuum. They are just one (powerful) piece of evidence among a laundry list of others .
This is usually the second shock complainants experience when learning about affidavits. It consists of the simple reminder that, whatever a complainant may wish to say now, a lot has already been said to, and seen by, police. Specifically, most domestic assault files include:
A victim's statements to police, often under oath;
Photos of injuries, if any;
Body-worn camera footage of police officers on scene;
Notes of police officers at the scene, including their observations and utterances made by the accused and victim;
Any witness statements;
Any domestic violence risk management questionnaires completed by the complainant; and
Audio of the 911 call
An affidavit’s effectiveness can depend on what these other items of evidence are and how strongly they support the prosecution’s case. For example, many affidavits which sound reasonable in isolation turn out to be demonstrably ludicrous once one considers the 911 audio or photos of injuries.
For this reason, a properly prepared affidavit requires careful consideration of all the evidence collected and observed by police. This can sometimes be a challenge because complainants do not remember what was said and are not granted access to the disclosure. In other cases, a review of this evidence leads to the conclusion that an affidavit is simply not advisable.
Affidavits are not vehicles for expressing wishes; they are designed to present important new evidence. In the context of a domestic violence case, that means clarifying what happened: in the relationship, during the conflict, and after police arrived.
One of the central responsibilities of any criminal lawyer assisting in the preparation of an affidavit is to protect the client against making a false statement. This is done, not only to maintain the integrity of the process, but also to protect the client against possible legal consequences. Let's now turn to what these are.
What are the risks of preparing an affidavit?
Because they are sworn statements, affidavits possess special power but also attract special responsibility. Complainants seeking to epare an affidavit should be aware of the potential, sometimes serious legal risks associated with them. It is often a discussion of these legal risks which causes complainants to shy away from their preparation.
For example, a false affidavit (i.e. an affidavit which can be shown to contain a lie) can result in potential criminal charges for perjury. Although rarely charged, perjury is an extremely serious criminal offence and can carry very serious penalties.
Domestic assault affidavits range significantly both in terms of cost and quality. In my experience, clients tend to get what they pay for.
Even if an affidavit is designed to correct a previous lie, its contents can expose the affiant to legal risks. This includes “recantations," which usually amount to little more than an admission that the victim’s statement to police was false. However commendable this acknowledgement may be, it can result in criminal charges for public mischief. If the original statement to police was itself under oath, recanting that statement may also be a basis for charges for perjury.
There is logic to this level of legal exposure. Witnesses caught lying under oath undermine the truth-seeking function of the criminal justice system, which depends on affidavits and sworn statements to make important decisions. Similarly, witnesses who are not lying in their affidavit but who admit to having lied to police to get their intimate partner in trouble, expose themselves to potential penalties for their original bad judgment.
Affidavits can have impacts beyond criminal court, too
It is important to recognize that affidavits survive the four corners of a criminal case. Unlike courtroom testimony, which is usually given in response to a subpoena, affidavits are prepared and submitted to the Crown without legal obligation. As a result, affidavits may be used in future legal proceedings, often to demonstrate that the person who swore the affidavit is not trustworthy.
What do affidavits cost?
Domestic assault affidavits range significantly both in terms of cost and quality. In my experience, clients tend to get what they pay for.
Poorly drafted affidavits often contain simplistic or even patently unbelievable statements. Because these affidavits are prepared without considering other evidence in the case, they can contradict what is staring a Crown prosecutor in the face. This can both increase the client’s exposure to legal jeopardy and cause the complainant appear more vulnerable and thus more in need of protection. In the result, sloppy affidavits like these often expose clients to serious risks while failing to achieve the very outcome clients accepted those risks for.
On the other hand, high quality affidavits are the result of extensive engagement with the client and the case. These affidavits are prepared with the assistance of a lawyer, who will almost never accept a pre-made statement without serious feedback.
High quality affidavits necessitate a careful assessment of the proposed statement within the broader context of the evidence, the client’s legal exposure, and sometimes even a frank discussion about the affiant's motivations. Affidavits prepared in this manner take considerable time to prepare. The end result, however, is a statement which not only minimizes or immunizes the client from risk, but is also far more believable and thus much more likely to obtain the desired result.
What is an Affidavit of Non-Prosecution?
Affidavits of non-prosecution have no existence in Canada. This term appears to be an import from American legal cases, where many U.S. lawyers agree they do not work.
Regrettably, references to "affidavits of non-prosecution" only perpetuate the myth that there is an easy method for removing unwanted domestic charges. This has caused considerable confusion among vulnerable complainants. I know this because they call my law firm several times a week asking about them.
Like everything else in the law of domestic assault, affidavits are complex instruments. Their quality, effectiveness and cost vary greatly. And they attract their own set of serious potential risks.
There is only one kind of affidavit in domestic assault cases in Ontario. These are statements given under oath, prepared in order to provide new evidence. What that new evidence is, and how it interacts with the other evidence in the case, determines an affidavit's effectiveness.
Are affidavits worth it?
This article may sound like a warning cry against affidavits. Given how powerful affidavits can be, clients of my firm might be forgiven for asking: “What gives? Why is Mr. Shaffie railing against something can help us?”
As I wrote at the outset of this article, I’ve represented hundreds of defendants and complainants in Ontario domestic cases. For all the talk and prayers and delay occasioned by affidavits, affidavits have appeared in all but a handful of them. And yet, our track record for getting charges dropped speaks for itself.
If you are facing domestic charges, recognize that the preparation of an affidavit is not in your control. Only your intimate partner can decide whether to prepare an affidavit, and what to say in it.
The truth is affidavits can be an extremely powerful tool for getting domestic charges dropped. But until one lands on my desk, for the lawyers like me engaged in the hard work of representing clients, they are just a distraction.
If you're facing domestic assault charges, recognize that the preparation of an affidavit is not up to you. It is a step outside of your control. Similarly, if an affidavit is ultimately prepared, its contents are not up to you. These are decisions which ultimately must be made by the affiant in consultation with their counsel. Like you, complainants are doing their best to navigate a complex and emotionally draining system while looking after their best interests.
In the end, my law firm follows a simple motto, and I urge clients to do the same: hope is not a legal strategy. There are many ways to skin a cat, and none of them includes waiting around. If you're facing domestic charges, replace your faith in the affidavit with trust in your lawyer. Be patient. Follow the advice you're given. And with time you'll get the best result possible.
Future Article: Getting Charges Dropped Without an Affidavit
That’s it for today’s article. I hope it has helped you to understanding both the power and the risks associated with affidavits. As with so much else in the law of domestic violence in Ontario, affidavits are complex instruments with important risks and benefits to consider.
In a future piece I’ll explain how my law firm represents complainants and frequently gets domestic charges dropped without affidavits. If you’re a complainant in need of legal advice, or you’re currently facing domestic charges in Ontario, call my law firm today. We’d love to hear from you.