This question is asked in many forms for many different types of offence, not only sexual assault.

To understand the answer to this question, it is important to approach the topic from the right perspective. In Ontario (and everywhere else in Canada), criminal law is a form of public law. What this means is that when there is a criminal law dispute, this is not a private dispute between parties. If someone owes you money; sold you a defective product; damaged your property; caused you damages or pain and suffering or committed any other tort or breach of contract law, you may have a cause of action in civil courts. When you pursue a person in the civil courts, the matter is up to you and them as to how and when the matter is resolved. Where the parties cannot reach a resolution, the judge will decide the case. However, the plaintiff retains an absolute discretion to withdraw the allegation at his leisure.

In a criminal case, the alleged victim (typically called “the complainant”) is not a party to the proceeding. The person accused of the crime is a party. However the opposing side is Her Majesty the Queen (or “His Majesty” where the head of state in England is male). Her Majesty the Queen is represented by prosecutors. In Canada, criminal code offences are typically prosecuted by provincial prosecutors who are appointed by the provincial Attorney General. As such, once a person makes a complaint to police, and the police investigate, the charges may move forward even if the person changes their mind.

I practice primarily in Ontario and Quebec. The systems in these provinces are different in some key ways but the general principles are the same. In Ontario, when the police have enough information to believe that an offence has happened, they lay a charge which will show up in court in the near future. They then send a file to the Crown Attorney so that they (the Crown) may prosecute it. In Quebec, when the police have enough information to believe that an offence has happened, they send the file to the Crown Attorney who determines whether or not the charge should be prosecuted. Although this appears to be different on the surface, in practice it is the same since (in Ontario) once the matter is before the courts the Crown may (and is, in fact required to) discontinue the prosecution for a variety of reasons similar to the reasons why the prosecutor in Quebec would not authorize the charge.

close-up of judge holding document with gavel at desk

When is a Charge Withdrawn?

This article is going to discuss this issue from the Ontario perspective.

In Ontario, the Crown has two overarching considerations when prosecuting an offence:

  1. Is there a “reasonable prospect of conviction?”
  2. Is there a “public interest” in prosecuting?

Both of these concepts are complicated and, frankly, interpreted very differently by various Crown, or Assistant Crown, Attorneys. That said, at a minimum, it offers a reference point to consider this topic.

For more information about how Crowns make these determinations, please click here to review their practice memorandum on charge screening.

Now, sexual assault can comprise a wide variety of conduct. It can include slapping someone’s rear end at a bar; full blown rape; or some conduct in between. Sexual violence is serious. It involves the violation of the integrity and autonomy of a person. Consequences to victims can be deeply personal and potentially degrading. Perpetrators of sexual assault can be a threat to individual and public safety and, as such, the Crown is unlikely to ever discontinue a prosecution due to a lack of public interest. It is conceivable that in a minor sexual assault, where certain other factors were present, the Crown might consider it; however, generally speaking this is a non-issue.

The prospect of conviction, (or lack thereof), on the other hand, may be a viable basis for the Crown to decide to discontinue a prosecution.

How does this Answer the Topic of this Article?

Occasionally a sexual assault complainant wants to drop a sexual assault allegation. Now, why would they want to do this? Generally there are three reasons. Firstly, in many cases sexual assaults are reported by a person against someone they know. A boyfriend, spouse, family member, friend, etc. Often there is a sense that the intensity of the proceedings, and their impact on both the accused and/or the complainant is more than was anticipated. Criminal law can be a blunt object and can often appear (to those not normally involved in the system) to be more drastic at times than one would have expected. Secondly, in some cases a person recants. The recantation can be sincere but often (see the first reason just above) it can be motivated by a desire to make the case ‘go away.’ Prosecutors and courts are mindful of this and are often reluctant just to take a recantation at face value. Thirdly, in some cases the complainant has moved on with her or his life and it actually would cause them more psychological harm to proceed.

Clearly, the desire of a complainant to proceed is relevant to the Crown. Firstly, because the Crown wants to consider, among other factors, the desire not to re-victimize or otherwise do harm to the complainant if they truly don’t wish to proceed. Secondly, there is a tactical disadvantage to proceeding in a trial where the primary witness is now saying no crime occurred. Especially when you’re dealing with issues like consent, this can pose a problem.

Now, in order to preserve evidence, police forces—at the request of the Crown—often take a “K.G.B.” statement. No, this has nothing to do with the Russian secret service. K.G.B. was a case from the Supreme Court that talked about cases where the complainant recants. Even if it is proven that the recantation is a lie, if the complainant stands by the recantation in court, the fact that it is a lie doesn’t mean that this amounts to evidence that the opposite is true. Accordingly, in many serious offences—sexual assault cases in particular—the police will record a video statement of the complainant who makes her allegations. Prior to giving the statement, the details are explained and the complainant is told the consequences of giving a false statement. They are asked to swear an oath similar to what they would swear in court. Accordingly, where the complainant subsequently recants, the Crown can ask the court to disregard the recantation and to prefer the videotaped statement in court testimony. Now, this is a form of hearsay and has some dangers associated with it. So it is certainly a highly debated procedure which works in some cases, and not in others.

What Can You Do If You Want to Drop a Sexual Assault Allegation?

The first and most important thing is to retain a lawyer. Although this is not strictly necessary—just like an accused person representing him/herself, there are numerous pitfalls you might step into and also you may miss certain opportunities to get what you want. Having a professional on your side helps protect your interests.

Many criminal defence lawyers offer services like this (“independent legal advice”).

David Anber and Matthew Wolfson offer these services. You can ask us a question 24 hours a day.

Once considering your options, you will be able to consider a number of options to try and address the situation. In the end the prosecutor has the final say whether or not a charge is dropped but your input will be considered highly valuable to the decision-making process.

If you have any questions, please do not hesitate to call David or Matthew at David Anber’s law office for more information.