Criminal suspects who face the Canadian legal system for the first time are often exposed to unfamiliar terminology when they attend court. The legal field has its own language, and legal terms like “mens rea,” “estoppel,” “amicus curiae, “injunction,” and many others are rarely used outside the courtroom. A criminal defendant does not have to be familiar with legal terminology to successfully navigate the legal system. However, some criminal defendants might want to learn what an “affidavit” is, as one might convince the Crown to drop the charges.
The Greater Toronto Area criminal defence lawyer of Mass Tsang will tell you that affidavits tend to be used most frequently to successfully drop criminal charges in Ontario domestic violence cases, and sometimes in sexual assault cases. In fact, an affidavit to the Crown requesting dropped charges is one of the most effective means of securing dropped charges in such cases. However, a criminal defendant cannot request dropped charges via an affidavit; the complainant must do it. Let’s examine what an affidavit is and how it’s used to secure dropped charges in criminal cases.
An affidavit in Ontario and Canadian law is a sworn statement of facts regarding a legal matter in criminal or civil law. The person who signs the affidavit is known as the “affiant,” and whatever they sign is sworn or affirmed to be true in front of a lawyer, notary public, or commissioner for taking affidavits. In civil law, affidavits are often used to confirm an affiant’s identity, their legal ability to enter a contract, or that they’ve performed a required legal obligation. In criminal law, an affidavit can be used as written evidence as a sworn statement of facts from a witness or victim, which becomes part of the case record. When used to seek dropped charges from the Crown, an affidavit is a sworn statement of facts from the complainant that presents information or new evidence about the case that can provide the Crown with justification for nullifying the charges.
When a domestic assault victim wants to drop charges, it’s usually because they never wanted the charges laid in the first place or they’ve had a change of heart and regret getting the police involved. The Canadian government’s proactive approach to addressing what’s perceived as an epidemic of domestic assault encourages Ontario police to have zero tolerance when responding to domestic assault calls. Thus, if police can find any evidence that an assault occurred, they will usually arrest the party they believe is responsible. Whether the alleged victim or a third party called the police, oftentimes the partner of the one charged was never interested in laying charges. Even victims who were initially happy to see their partner charged often find themselves regretting it when they realize how the severe consequences of a conviction will disrupt their lives and put additional stress on the relationship.
Some sexual assault victims also decide to ask the Crown to drop the charges because they regret reporting the incident or they don’t want to endure the hassle of proceeding with the prosecution. Simple assault victims ask the Crown to drop charges for similar reasons. In general, complainants are often most interested in dropping charges if they have a close relationship with the accused.
Because an affidavit is a legal document that becomes part of the proceedings in criminal law, a complainant planning to submit one to seek dropped charges against a defendant should speak to a lawyer. The complainant should not talk to the defendant’s lawyer, as neither the defendant nor their lawyer can play a role in developing and submitting this type of affidavit.
Affidavits must conform with specific legal requirements, and affiants must understand any potential legal implications of what they attest to in the document. For example, the affiant could risk being charged with perjury if any newly offered evidence in the affidavit contradicts evidence held by the Crown. Similarly, recanting initial statements made to police about the incident could open the affiant up to public mischief charges, or perjury ones if the statements were made under oath.
A skilled criminal defence lawyer, like those at Mass Tsang, can draft an effective affidavit that helps the Crown attorney understand the victim’s perspective about the charges and why they want the charges dropped. In domestic assault cases, an affidavit can give the Crown a better perspective about the relationship. If applicable, it can also demonstrate how the charges arose from a misunderstanding or that there was no actual violence. Perhaps most importantly, in some situations, an affidavit serves as a notice to the Crown that the complainant may not be a willing witness, thus weakening its case.
Dropped charge affidavits are most effective when submitted early in the case proceedings. However, an affidavit can influence the Crown lawyer’s thoughts about the case at any time and play a role during pre-trial negotiations between the defence and Crown. By submitting such affidavits early in the process, Crown lawyers gain more perspective about the incident, the relationship between the complainant and defendant, evidentiary strength, and whether it’s truly in the public interest to secure a conviction.
If an incident with your partner led to their unwanted arrest by Ontario police on domestic assault charges, seek out an experienced criminal defence lawyer to help you draft an effective affidavit to drop the charges. Likewise, if you’re a sexual assault complainant who believes the arrest of the defendant was an overreach or who otherwise doesn’t want to proceed with the case. With expertise in developing effective affidavits for dropping criminal charges as part of their criminal defence purview, turn to the Greater Toronto Area legal team at Mass Tsang. To learn more about how we can help you prepare an effective dropped charges affidavit, or help you with any criminal defence need, contact us for a free initial consultation .
