Why Are Domestic Assault Charges Are Not Automatically Dropped?

First of all, under Canadian law, domestic assault is not in a special category. There are many types of assault, but domestic assault simply means one of the designated categories that already exist as it applies to family members. In other words, any type of assault may also be domestic assault.

In today’s blog article, we ask the question why are domestic assault charges not automatically dropped. The suggestion is that if the family member in a domestic assault wants charges dropped, then why are they not automatically dropped.

The answer is that whether or not assault charges are pursued are not decided by the victim or complainant. Only the Crown decides whether or not to pursue charges in an assault case.

The Crown uses a two-pronged decision process to determine if assault charges should be pursued. First, the Crown has to decide if there is a case. This is true in all criminal proceedings. The Crown wants to try cases that they believe they can win, cases in which there is good evidence of wrongdoing that can be proven in court. Second, the Crown is supposed to look objectively at what is in the best interests of the public.

For example, if the Crown does not pursue a case, is the public in danger? Is the public likely to lose confidence in the judicial process? How egregious was the crime? These are all factors that should play a role in the Crown’s decision.

Unfortunately, in domestic crimes, often the victim or complainant withdraws their support of the process and does not want to pursue a legal remedy. This may be for many reasons including financial ones, partner coercive behaviour, fear, and/or societal expectations. For this reason, domestic crimes like assault are overwhelmingly underreported.

And, if the complainant is not going to support the process and testify, then often the Crown does not have much of a case. So, in practice, very often if the complainant refuses to cooperate, the Crown will drop the charges. But that is not always true, and the Crown has other aforementioned considerations in making its decision.

Gagan Nahal is a criminal defence lawyer based in Surrey, British Columbia, although he has represented clients across Canada. He works vigorously and tirelessly defending his clients.

If you have any questions about this article or you would like to talk to Mr. Nahal, please call him directly at (604) 527-4769.