Criminal charges that deal with domestic matters can be very serious in their impact, effects and results, even before a trial takes place. Whoever is accused of a domestic charge can have a difficult road ahead of them as they make their way through the legal system. Given the severity of these kinds of charges, it is painful to hear that they often do not have a simple way out, even when everyone involved agrees that the charges should not have been laid.
But before we explain why domestic charges continue even against a person’s wishes, it’s important to do a bit of definition work.
What is a domestic charge?
The first thing a person should understand is what they’re actually charged with and when it comes to domestic charges, we wish to clear up some misconceptions. Terms like “domestic assault” and “domestic violence” often get thrown around, but what do they mean legally? The answer – it turns out – is not much. There are not actually any criminal charges in Canada specifically known as “domestic assault” or “domestic violence”. When someone is charged with “domestic assault”, what they are actually being charged with is a normal assault under the criminal code (Section 266) or an assault with a weapon (Section 267) or whichever other kind of assault fits the facts of the case. What makes the assault “domestic” is simply the fact that it is alleged to have occurred against a member of the accused’s family. This is not an official designation in any part of legal proceedings, but the domestic nature of a charge can change how law enforcement will treat it, as we will discuss below.
The “domestic” label can be applied to any kind of charge, as long as the alleged action targeted the accused’s family member. Common domestic charges include assault, criminal harassment, uttering threats, and sexual assault.
Defining the ‘complainant’
Another term that’s not always explained outside of the legal profession is ‘complainant’, but it is important for an accused person to understand what this term means and how to identify who the complainant is in their case.
Simply put, the complainant in any criminal case is the person (or people) who complains to law enforcement about whatever issue that ends up forming the basis of a charge (or charges). Usually, the complainant in a case is the person who is alleging that they were the victim of a crime, but this is not always the case; sometimes a complainant will be an outside party who complains on behalf of someone they believe was the victim of a crime. However, in the case of domestic charges, the complainant is usually the alleged victim as whatever constituted the domestic charge likely happened within the family, away from external eyes, and so only a person directly involved in the situation likely has knowledge of and the ability to complain about that situation.
It is based on a complainant’s original information that police may take action and lay a charge and a complainant will likely be a key witness in the case, usually standing with the prosecution and against the accused.
When a complainant doesn’t want to proceed
With those definitions out of the way, it’s time to answer the question: Why do charges get laid and continue proceeding through court when a complainant doesn’t want them to?
First of all, let’s discuss situations in which a complainant doesn’t want to proceed. This can occur in situations where a complainant initially decides to report an incident as a crime, but later decides that they don’t want someone to be charged, possibly due to realizing a misunderstanding or other personal circumstances. Alternatively, a complainant may have made a statement to police about a specific incident without the intention that the police lay charges, but then the police have gone ahead anyways. Regardless of the reason, there are plenty of cases where a complainant states that they do not want charges laid, or, if charges have been laid, that they want those charges withdrawn.
Complainants don’t decide whether charges are laid or withdrawn
Unfortunately, the simple answer is that in Canada, a complainant is not the one who directs a criminal case and therefore doesn’t have the power to decide whether or not it proceeds. This is true of every kind of criminal charge, whether it is domestic or not. While a complainant is often the originator of a charge who gives initial information to the police, from that moment onwards, the case is in the hands of the police and the crown attorney’s office. Even if a complainant completely reverses their position or tells police that they were lying in their initial report, it is ultimately still the decision of law enforcement whether the matter proceeds or not.
Why would a matter proceed without the complainant?
Obviously, it seems illogical that a case may proceed if the person who initially raised an issue decides that there was no issue after all, but this can sometimes be what happens. Once police have heard an allegation of a crime that they feel is substantive, they begin conducting their own investigations to at least determine whether some kind of incident occurred, whether or not that incident constituted a crime. Police can then lay a charge based on their own investigations, even if a complainant has reversed their position by the time that they do. Once police are investigating something, all of the evidence they gather through their investigation can form the basis of a charge, they don’t need to rely on the complainant’s statement anymore.
A person may argue that this shouldn’t be the case when it comes to domestic charges. As we discussed above, domestic charges usually involve incidents that occurred behind closed doors and so if police conduct their own investigations, there might be nothing to find, and the complainant’s statement might be all they have to go off of when laying a charge. However, there are informal rules of prosecution that can prevent a charge from being dropped.
Charges involving domestic violence are taken especially seriously in our legal system due to the severe harm that they can represent when the facts are true. As such, it is often the belief among the police and the prosecuting attorneys that domestic charges should be given a proper investigation and prosecution, even when a complainant does not want criminal charges to proceed. This is to prevent situations in which a complainant is living in an abusive situation but trying to protect their abuser from legal repercussions or where a complainant may reverse their statement because of threats from their abuser. The police and prosecution cannot determine whether these circumstances are the case from the outside and so the case must be investigated by them independently, and then, only if they do not have enough evidence to support the charge, will it be dropped.
Unless that happens, the matter will continue proceeding forward with the prosecution seeking a conviction. If you have had domestic charges laid against you, it is in your best interest to seek legal counsel, such as we provide at Karapancev Law, and have your lawyer assist you in determining how the case is likely to proceed and whether there are chances of the charges being dropped, depending on the complainant’s situation.
The Upside
While it is disheartening to hear that charges can proceed even against the wishes of the person who started the case, it is still to the benefit of the accused when a complainant does not wish for charges to proceed. As we’ve made clear, the complainant’s statement is the original facts upon which a charge is based and if a complainant changes the position they are providing to the prosecution (referred to as ‘recanting’ a statement), this can remove key pieces from the prosecution’s case. If a complainant can make the honest claim that their initial statement was based on a misunderstanding or exaggeration that shouldn’t actually count for a criminal charge, this change in position may be given weight by courts that will generally benefit the accused.
However, a recantation does not automatically remove the complainant’s original statement, it simply enters new evidence that the complainant is denying their original statement and entering a new one. While this weakens the original statement of the complainant, it does not outright remove it and the prosecution may still be able to use it as part of their case. So, a recantation may not ultimately result in dropped charges and the prosecution will continue weighing whether they have a decent chance of winning the case.
The best person to inform you of what your chances are of having charges dropped or what situation you are in regarding a complainant’s statements is your lawyer. While it can be encouraging to hear that a complainant’s lack of support can weaken the prosecution’s case, it is not wise to act on your own based on this assumption. The unique facts of your case may mean it hinges much more heavily on evidence gathered by police than a statement by a complainant and an attempt to meddle with the complainant’s position may galvanize the prosecution and even give them more legal weight to put against you. Lawyers like those at Karapancev Law know what will and will not benefit a case based on its unique circumstances and will be able to advise you accordingly. If you’ve been given a domestic charge, make sure you discuss the complete circumstances with your lawyer, including the position of the complainant, and based on this complete picture, your lawyer will give you your path forwards.
