Who Actually Decides Whether Criminal Charges Are Dropped?
The Crown prosecutor has the responsibility of determining whether to proceed with or withdraw from a Crown prosecution through use of prosecutorial discretion in accordance with the applicable charge screening standard.
The first consideration in such a decision is whether there is still a reasonable prospect of conviction. This may include among others the existence of the necessary evidence and its potential admissibility, the reliability of the witnesses and the possibility of proving the necessary elements of the alleged offence.
Where there is a reasonable prospect of conviction, the next consideration that must be made by the prosecutor is whether to continue the prosecution in the best interest of the public. The prosecution policy of Ontario gives several considerations that include the seriousness of the occurrence, the perspective of the victim and other relevant factors. No public interest factor alone can be used to determine the outcome of the matter.
The victims also have the right to express their perspectives on issues relating to their rights and for these to be taken into account. However, this does not mean having the power to determine the proceedings.
What Does “Dropping Charges” Actually Mean?
“Dropping charges” is not a formal term. There are several legal resolutions of a criminal case, and they cannot be considered the same or substituted for each other.
If the charges are withdrawn, the prosecution is discontinued formally by the Crown. In Ontario, according to the current prosecution policy, if there is no chance to convict a person, or prosecution is not in the public interest after that moment, the prosecution must withdraw the charge.
A stay of proceedings means that the proceedings are discontinued or put on hold via another mechanism of law. The Charge Screening Directive of Ontario explicitly describes a distinction between a stay of proceedings and a withdrawal of charges and says that a stay of proceedings is not just for a failure of the charge-screening test.
An acquittal is also different, and it usually happens if a court finds out that the prosecutor has failed to prove the guilt of the defendant. It is not the same thing as the decision to withdraw a charge by the Crown prior to the trial.
There may be a peace bond in a particular case as a result of negotiation, but it is still another procedure.
Using the correct terminology matters because a complainant asking for the case to end does not itself amount to a withdrawal, stay, acquittal, or peace bond.
What Happens When a Complainant Wants the Charges Dropped?
A complainant who chooses to alter their position has the option of letting the police, the Crown, or a victim services representative know. The outcome will be determined by the specific facts of each case.
The Crown should take into consideration the reasons for this shift in position and its impact on the evidence. Prosecutors need to keep assessing the evidence as more facts become known, rather than just relying on the facts at the time the charge was brought forward.
In practical terms, the process may involve:
- The complainant advising the justice system that they no longer want the prosecution to continue.
- The Crown considering the complainant’s views and reasons.
- The Crown reviewing the available evidence and any new information.
- The prosecutor assessing whether there remains a reasonable prospect of conviction.
- If that threshold remains satisfied, the Crown considering whether prosecution remains in the public interest.
- The prosecution continuing, being resolved another way, or being withdrawn depending on the case.
Will the Crown Listen to the Complainant?
Yes. The complainant’s views can be relevant and should not simply be ignored.
Ontario’s Victims Directive recognizes a victim’s right to convey views about decisions affecting their rights and to have those views considered. Prosecutors are also expected to make reasonable efforts to keep victims informed about significant developments, including proposed resolutions and the withdrawal of charges.
What If the Complainant Recants or Changes Their Statement?
A complainant recants when they withdraw, substantially change, or contradict something they previously said about the alleged incident.
Recanting does not automatically cause criminal charges to disappear. The Crown may need to examine why the account changed and what effect the new information has on the prosecution.
Depending on the case, relevant considerations may include:
- differences between the original and later accounts;
- the credibility and reliability of the available evidence;
- whether other evidence supports or contradicts either version;
- whether particular statements are legally admissible;
- whether independent witnesses or records exist; and
- whether the remaining admissible evidence can prove the alleged offence.
A previous police statement does not automatically become trial evidence simply because it exists. Questions about admissibility and the permitted use of previous statements can depend on the evidence and applicable legal rules.
Ontario’s policy for intimate partner violence specifically addresses situations where a victim recants or refuses to testify. Prosecutors are directed to consider the reasons for that change and whether the case can be proved using other evidence.
For related information, see what to know when facing assault charges in Mississauga.
What Happens If the Complainant Refuses to Testify?
A complainant saying they do not want to testify does not automatically end the prosecution.
The Crown may first consider why the complainant is reluctant to participate. It may then assess whether their testimony is necessary and whether other admissible evidence could establish the case. In intimate partner violence matters, Ontario prosecution policy expressly requires consideration of whether the prosecution can be proved through other evidence when a complainant recants or refuses to testify.
A witness who is formally required to attend court may also have legal obligations that are separate from their personal preference about the prosecution. A complainant who is uncertain about those obligations should obtain appropriate legal advice rather than simply ignoring a court requirement.
Can the Crown Continue the Case Without the Complainant?
Yes. In some cases, the Crown can continue a criminal prosecution even if the complainant no longer supports the case.
Whether that is possible depends on the available evidence, the alleged offence, admissibility issues, and the circumstances of the case. The complainant’s testimony may be important, but it is not necessarily the only evidence available.
Ontario prosecutors have an ongoing duty to assess whether there is a reasonable prospect of conviction and whether continuing the prosecution is in the public interest. If that standard is no longer met, the charge must be withdrawn.
What Evidence Can Allow a Case to Continue?
The Crown may review evidence that does not depend entirely on the complainant’s current cooperation.
Depending on the circumstances, that evidence could include:
- independent eyewitness accounts;
- security camera or cellphone video;
- photographs;
- text messages or other electronic communications;
- 911 recordings;
- police observations;
- body-worn camera footage, where available;
- medical evidence;
- physical evidence;
- statements or admissions made by the accused, where admissible; and
- other circumstantial evidence.
The existence of this material does not mean the Crown can automatically prove the charge.
How Can Criminal Charges Be Withdrawn or Resolved in Ontario?
There are several ways a criminal case may end before trial, but they do not all mean the same thing.
Depending on the evidence and circumstances, a case may involve:
- withdrawal of the charge by the Crown;
- another negotiated resolution;
- a section 810 peace bond in appropriate circumstances;
- a stay of proceedings where legally appropriate; or
- continuation toward trial.
An acquittal is different. An acquittal follows a judicial determination and should not be described as the Crown “dropping” a charge.
The appropriate outcome depends on the particular case. A complainant’s changed position may be relevant, but it is only one factor in the Crown’s assessment.
For another overview of possible outcomes, see how a lawyer can help avoid a criminal conviction.
What Should the Accused Do If the Complainant Wants Charges Dropped?
An accused should continue complying with every court and release obligation even if the complainant says they want the charges withdrawn.
Practical steps may include:
- Follow every release condition.
- Attend all required court appearances.
- Preserve relevant evidence and communications.
- Provide useful information to a Mississauga criminal defence lawyer.
- Allow the lawyer to communicate with the Crown where appropriate.
- Avoid trying to influence what the complainant says or does.
- Confirm that the charge has actually been withdrawn or otherwise resolved before assuming the case is finished.
A complainant and an accused may both want the case to end, but that agreement does not itself terminate criminal proceedings.
Learn more about Inder Padda and his criminal defence practice in Mississauga.