Dropping the Charges

One of the most frequent calls I receive is from a complainant after their significant other has been charged with domestic assault or other domestic related charges asking how they can go about “dropping the charges”.  The complainants who call me are often quite upset that charges were laid in the first place and would like to just get on with their lives and put the arrest of their significant other behind them.  In most cases, the accused person will be placed under a condition to have no contact with the complainant.  This can obviously be quite stressful for all parties.  The stress is only compounded as the accused will have to live somewhere different, arrange access to children through a third party, and must make alternative arrangements to deal with family finances. 

A complainant does not have the authority to “drop the charges”.  This is because charges (unless a private complaint was laid, but that is an entirely different discussion) are laid by the police and are prosecuted by the state.  Therefore, the only one with the power to “drop” or withdraw (which is the proper term) a charge is the Crown Attorney.  Not even a Judge has the authority to dismiss a charge short of the conclusion of a trial. 

Even in cases where a complainant does not wish to proceed, a Crown Attorney may choose not to withdraw a charge.  The role of the Crown is quite broad – they are acting as agents of the state and need to consider the interests of various parties including the complainant, the accused, and society.  The Crown is not the lawyer for the complainant.  In many cases a Crown Attorney will be very reluctant, especially in domestic situations, to withdraw a criminal charge.  There are various reasons for this.  The most notable in my mind is a concern that the complainant is a victim of domestic abuse and the fear that the behaviour of the accused person will continue.  Of course, this is not always the case and unfortunately, sometimes relatively minor situations get clumped in with much more serious cases. 

The best way to move a case forward soon after an arrest is for the accused person to hire a lawyer.  Depending on the situation, a lawyer may recommend the accused person do certain things to make them a more favourable candidate for a withdrawal with or without a peace bond.  For example, I will often recommend some sort of counselling, such as anger management.   In certain cases, it can also be beneficial for a complainant to seek independent legal advice (ILA) and hire their own lawyer.  Such actions may help an accused person demonstrate why the Crown should not proceed but does not guarantee such a result. 

No Contact Orders

The law does mandate that a no contact order be placed on an undertaking or recognizance.  An accused person or their lawyer may make submissions to a court at a bail hearing, or make a subsequent application, requesting that this condition not be placed on them.  The court will consider several factors with a focus on the safety of the complainant given the alleged facts of the case and the history of the accused.  It is not unusual that a no-contact term is placed on an accused person upon initial release with the condition being relaxed over time.  This may occur if the accused has taken steps to demonstrate that the initial safety concerns have been reduced, or where a case once reviewed is not as strong as it appeared upon the arrest. 

Peace Bonds 

In many cases, the Crown will agree to withdraw a domestic charge if an accused person is willing to enter a peace bond.  A peace bond requires an accused person to agree that they committed some act which caused the complainant to fear for their own safety or the safety of their property.  A court will need to hear some factual basis for the peace bond even if an accused person makes no actual admissions pertaining to these facts.  There are two types of peace bonds:  s. 810 Criminal Code and common law.  They generally have the same effect but there are some minor differences between both types. 

A peace bond will remain in effect for a set period, usually 12 months, and include certain conditions.  There will usually be a condition with rules on contact with the complainant (either not at all or with written and orally revocable consent).  A breach of this condition can result in further criminal charges. 

Although in many cases an accused person will ultimately agree to a peace bond, they should discuss this decision with a lawyer to ensure it is in their best interests.  There may be long-term consequences from entering in a peace bond that can later pertain to family law, travel, employment, etc.  A lawyer will also be able to provide an opinion on whether the criminal case can be proven by the Crown as well as the strategy of refusing the offer for a peace bond. 

PARS (Partner Assault Response Services) 

In cases where a Crown Attorney has determined the accused are of low-risk, an accused person may be able to participate in the Partner Assault Response Services (PARS) program.  The program may go  by other names such as the Direct Accountability program (DAP).  These programs are generally classroom style for around 16 weeks which will cover material related to domestic abuse and focus on things like anger management and other behaviours which led an accused person to commit a criminal act. 

By agreeing to enter PARS, the Crown will usually vary one’s bail which will allow them to return home while they are completing the course.  The problem with PARS is that, in most cases, it involves pleading guilty and returning to court in about six months once the program has been completed for a sentencing hearing.  The Crown will usually take a light sentencing position (such as an absolute or conditional discharge) provided the report prepared by the agency providing the PARS program comes back favourably. 

Pleading guilty, even if the accused eventually receives a discharge, can have long-term consequences, especially if one has no criminal record.  Pleading guilty and entering the program may be the easiest means for an accused person to return home.  Should someone decide to take the matter to trial, they may have to endure strict bail conditions until the trial is completed.  There is also the reality that in many cases, the sentence imposed after being found guilty at trial may be no worse than what the Crown is offering should they plead guilty. 

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.