Assault is among the most charged criminal offences in Canada. According to Statistics Canada’s “Incident-Based Crime” portal, of 561,230 total arrests in 2022, almost 128,000 — 22.7% — were for assault. In Ontario, 39,815 assault arrests represented 21.8% of the 182,615 total arrests. If sexual assault were added to the assault count, the numbers and respective percentages would be much higher.
For every assault arrest, there is at least one victim. And some victims decide that they do not want to press charges. So, can an assault victim get the charges against their assailant dropped?
The simple answer is “no,” according to the expert criminal defence assault lawyers of the Greater Toronto Area’s Mass Tsang. However, that answer has nuances, as we will examine below.
In Canada, police are responsible for laying assault charges, while Crown prosecutors have the sole authority to decide whether to pursue the charges in court. Assault victims technically have no say in either the laying of charges or prosecution. If police witness an assault or find evidence that supports an assault charge reported to them, they will typically lay charges whether the victim has made a complaint or not.
This holds especially true with domestic assault incidents, as the federal and provincial governments have a zero-tolerance policy on domestic assault. Police are required to make arrests when any evidence points to a domestic assault, and Crown policy dictates an aggressive approach to prosecuting and punishing domestic assault defendants. Statistics Canada’s intimate partner violence data suggest that at least 70% of all assault charges are domestically related.
If the victim of an alleged assault does not cooperate with police and/or the prosecutor from the get-go, it can significantly impact the Crown’s decision to prosecute. A victim’s unwillingness or reluctance to participate in the arrest and prosecution can hinder the likelihood of a conviction. Additionally, if the victim isn’t interested in the prosecution, it may inherently mitigate the public interest in prosecuting the case.
The reasonable prospect of securing a conviction and the degree to which it is in the public interest are two primary factors the Crown weighs in deciding whether to prosecute an assault case. The Crown considers the public interest always high in domestic assault cases. However, a victim’s reluctance to help move a case forward may be considered in relation to public interest considerations. Absent significant evidence, though, the victim’s unwillingness stymies the odds of conviction and may steer a prosecutor towards dropping charges.
Assaults are as different from each other as the people involved in them, with innumerable reasons for their instigation. A few broad-stroke causes of assault include anger management, dispute that turns physical, committed in the commission of another crime, and propensity to commit violence. Assault victims may also have a variety of reasons for wishing to drop charges, including:
The last two listed reasons are of primary concern to prosecutors, especially relating to domestic assaults. If a prosecutor senses or uncovers evidence that an assailant is threatening, coercing, or otherwise exerting pressure on the victim to get the charges dropped, it will generally enhance their resolve to pursue the charges.
As previously noted, a victim’s desire to have assault charges dropped against their assailant may influence the public interest factor in pursuing prosecution — if it’s not in the victim’s interest, why should it be in the public’s? Thus, a victim’s desire to drop charges can play a role in a prosecutor’s decision-making, especially in relation to non-domestic assault cases. Other than lack of evidence, factors that typically increase the likelihood of dropped charges include:
In general, the greater the force used and the more severe its resultant impact, the more likely a prosecutor will aggressively pursue charges, whether the assault was domestic-related or not. If a weapon was used in the assault and/or the victim was seriously injured, a prosecutor will undoubtedly discount any desire by the victim to drop charges.
When a victim seeks to have charges dropped or expresses an unwillingness to assist the Crown with its prosecution, prosecutors must decide whether they have enough other admissible evidence to prove the offence in court. If not, their only recourse might be to compel the witness to testify in court as a hostile witness. To take this drastic step, the prosecutors must believe that successful prosecution represents a significant public interest. This could be due to the severity of the assault, a pattern of assaults committed by the assailant, or a belief that the defendant represents an ongoing threat to the victim and/or others.
In domestic assault cases, prosecutors will typically investigate why a victim decides to recant any previous statements about an assault or who otherwise becomes unwilling to help the prosecution. If evidence suggests that the victim lied or exaggerated about the assault during the initial investigation, it might influence the likelihood of dropped charges. As previously noted, evidence suggesting the victim is being coerced or threatened into withdrawing support for the charges will typically steel the prosecutor’s resolve to pursue the case.
Anyone who believes they can get their assault charges dropped with the help of their victim may be disappointed in the results. While a victim’s unwillingness to help the Crown with their case might help, it may have limited bearing, especially if the assault is domestic-related. A skilled criminal defence lawyer can expose the weakness and limitations of Crown’s evidence pretrial and, as warranted, showcase why a conviction does not serve the public interest. This can lead to dropped charges or other favourable pretrial outcomes.
Given the severe penalties that can be handed down with an assault conviction, secure the Greater Toronto Area legal services of the criminal defence assault experts at Mass Tsang by contacting us for a free consultation.
