Will Charged With Assault - The victim of the attack changed his mind and did not want to press charges. Can they be removed from the charge?
Author's Note: Please note that the term "victim" is used in this article to reflect commonly used informal terminology. However, in the criminal justice system, the term "victim" is used only after an indictment. Otherwise, this person is called the "applicant".
Will Charged With Assault
Disclaimer: This article provides information so that victims can explore their options and have their voices heard in legal proceedings other than testifying in court. In no way do we encourage false denials or inappropriate manipulation of the criminal justice system.
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When an alleged attack has occurred, you, as a victim, may not always be able to press charges. In fact, even if you decide you don't want to prosecute in the first place, or you no longer want to, the Attorney General can proceed with the case. These attacks are taken very seriously by the police and our justice system. Although it is more for the Crown for the victim to cooperate, the Crown can and often does so even if the victim is no longer willing to testify against the accused.
If you, the victim, change your mind about pressing charges and no longer want to testify against the accused, prosecutors can send you a subpoena and force you to answer questions about the assault. In this situation, you will be a so-called "hostile witness". This term refers to a situation where the applicant is required by law to stand despite his desire. Also, if you are standing up, you must answer the questions honestly. If you fail to do so, it is important to understand that you can be prosecuted for perjury.
As mentioned, you as a victim can be legally compelled to appear in court through a subpoena. However, if the victim of the attack is no longer available for trial or does not appear, the Crown can still seek a conviction without the victim's live testimony. In some cases, the Crown can actually use previous statements to the police to convict the accused in court. In addition to proving guilt, the Crown can also rely on evidence such as statements from witnesses who saw the offense or medical records that provide evidence of injuries you suffered after the crime.
When the police first arrive on the scene, it is important to note that you do not have to cooperate by giving a statement about the incident. For example, if you call the police about an argument, you can say that you only called them to intervene and calm the situation, but that you will not make a statement and have no interest in pressing charges or going to court. If you decide to file a claim, you can provide context about the circumstances of the dispute to give you a better understanding of why you don't want to press charges.
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If the police confirm your claim, or if you have changed your mind about the claim, you can still tell the police and the prosecutor about your wishes. There are many ways you can do this, and being assertive and clear about what you want is important to making your voice heard.
At the defendant's first court date ("initial appearance"), you may appear in court and speak with victim services and/or the prosecutor assigned to handle the case. You can also contact victim services by phone. However, telephone calls are not preferred, as it will be most helpful to ensure that you have documented your wishes in writing. This can be in the form of a letter, but ideally in the form of a statutory declaration or affidavit. While you can still help in person to show your interest in having the cost waived, it is best to do so in addition to communicating your wishes in writing. By using written communication, you can further ensure that your wishes will not be misconstrued, misunderstood or forgotten as the case progresses.
If you decide to contact the prosecutor or victim services, you should think carefully about what you plan to do. While you can clearly deny your previous statement by saying that you lied in your initial interaction with the police, it is important to understand that by doing this, you run the risk of being accused of filing a false complaint. That being said, there are other ways to encourage these costs to be spent without creating risk.
One way is to provide context. That way, you can give a more complete picture of what happened without contradicting the previous statement. For example, when you first talk to the police in the heat of the moment, you may have put all the blame on the accused, making the accused look like the aggressor. If it's actually a two-way war on consent, that context could change the strength of the case dramatically. The context you provide may affect the prosecutor's "reasonable prospect of conviction," making the charge less likely. In such a situation, you can file an affidavit or statutory declaration explaining that your original account is incomplete and then explaining a more complete and accurate version of events.
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If you don't have more context, or if you don't want to dispute what the police originally said, but still want to encourage the prosecutor to drop the charges, you can still write. Moreover, you can provide the prosecutor and/or victim service with a written character report that will help people understand your relationship with the defendant beyond a single incident and humanize the defendant by highlighting good character traits.
Because of the seriousness of an assault charge, it can be very difficult to get the charge dismissed, even if you, as the victim, feel it is the best and fairest solution in the situation. Each case is unique and the information on this page only provides a general overview. If you have been a victim of crime and would like to discuss options, send a consultation today to speak with one of our experienced lawyers.
Michael Oykhman is a senior associate and founder of Oykhman Criminal Defence, a full-service criminal law firm with central law offices in Western Canada and Ontario.
My professional experience includes countless court appearances and thousands of successful defenses and satisfied clients. For the past 10 years, I have worked to build a law firm where all lawyers share their collective experience, resources and passion for helping people. Our team's approach to legal representation is client-focused, not just law-focused. We look for opportunities to add value to our clients through strategic thinking and creative solutions.
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