How to get domestic assault, utter threats, and mischief related criminal charges dropped in Toronto (GTA), Canada. (2023)

Getting the Crown Attorney to make a deal to withdraw domestic charges in Toronto, Ontario.

“I told the police my spouse assaulted me, but now I want the charges dropped. I didn't know calling 911 would force my partner to move out of the house and have no contact with me. How do I fix this?”

We get a lot of calls from complainants (alleged victims) in domestic cases who are desperate to reconnect with their significant other. Often they called 911 during an argument without realizing it would force (via undertaking or bail) their spouse out of the home for a substantial period of time and possibly result in a criminal conviction/record.

Many victims reason that since they started the case by calling the police, they should also be able to make it all go away by saying they do not want the charges to proceed. Unfortunately, the law in Ontario states that once a charge is laid it is the government’s (represented by the Crown Attorney) decision whether the case proceeds or not. Furthermore, there are strict policies in Ontario that virtually force Crown Attorneys to proceed with charges in domestic cases. For this reason, it doesn’t work to just go back to the police station and ask for the case to be dropped immediately.

Why does the government take such a strict approach to domestic cases?

The reasoning is that if there is a history of domestic violence in a relationship there is a high likelihood that it will happen again. There is also an understanding that people who are emotionally attached to one another may underestimate or not appreciate these risks. As such, the Government takes the approach that they must protect the “victims” of domestic violence because they are unable to make the proper decisions to protect themselves.

Aggressive domestic policies apply to both minor and serious cases

People think it is crazy that simply reporting to the police that their spouse grabbed, pushed, shoved, or made some other form of contact with them (that caused no injury) can result in a criminal record and break up a family for years. The problem is that an assault (s. 266 of the Criminal Code) can be either a very serious charge or one that is relatively minor. Uttering threats and mischief (property damage) cases are also often relatively harmless. Common sense dictates that the police would use their discretion to differentiate between minor and serious cases, but the system does not work this way.

In Ontario, police use virtually zero discretion for domestic charges. If any allegation is made (often on the doorstep) that can support a conviction, charges will be laid no matter how minor.

How can a lawyer help get a domestic charge dropped (withdrawn)?

While domestic violence policies are strict, there is some room for discretion in dealing with Crown Attorneys in the GTA area. Successfully having a case withdrawn (dropped) involves a combination of the following:

1. Getting the right Crown Attorney to make the decision on your file. Some Crowns are more willing to agree to a favourable out of court resolution than others. Taking your case to the wrong Crown can mean the difference between a withdrawn charge, and a 12 week course (PARS or Early Intervention "EI") followed by probation or jail. While the ability for a lawyer to select who to deal with varies from courthouse to courthouse, this is often the most important component to a successful resolution.


2. Presenting the case background in a workable, mitigating way. It is always in the accused’s favour to show that they are a law abiding citizen with a good reputation, employment background, education, and history.


3. Demonstrating that the victim wants to regain contact (and that their wishes are reasonable). The Crown will be much more willing to drop a case and allow the partners to resume their relationship if they are convinced the “victim” wants to regain contact and does not fear their spouse will harm them in the future. Factors such as the length of the relationship and a lack of prior 911 calls can be helpful in this regard.
4. Convincing the Crown that the incident itself was not extremely serious and is described in the synopsis of the disclosure in an exaggerated manner. This is easier to do in cases that do not involve the use of a weapon or serious injuries.
5. Proving prior to the trial date that there is no reasonable prospect of conviction and that the Crown would lose if the case went to trial. This factor does not apply to all (in fact most) withdrawn cases, but can be useful in certain circumstances.

A defence attorney will want to show the Crown that whatever happened on the night in question was a one-time incident that was atypical and

.

Showing why the incident was a "one-time" occurrence.

Perhaps there have been some unusual family, financial, or other stresses that caused an argument to get a little out of hand. For example, if the incident resulted from alcohol consumption, maybe the accused could benefit from some alcohol counselling (and thus prevent it from happening again in the future). Maybe there was a financial decision that was made without the accused's consent and he/she responded poorly. If the accused enrolled in an anger management course they may learn better ways to react to such surprises in the future. We want to show that the motivating factor behind the event

.

A lawyer must make the Crown Attorney feel comfortable that their decision will not be criticized should any subsequent incidents occur. It needs to be seen as a reasonable deal given the totality of the circumstances. Proper preparation includes providing documentation that proves the relevant background information of the accused. Documents that support what steps have been or plan to be taken to resolve the relationship issues that caused the incident to occur are also helpful.

How long does it normally take to get a domestic criminal case dropped?

The time required can range from the first court appearance date to eight months (or more). It is not always possible to predict how much time the process will take in advance. Some factors that can cause delays include: problems with obtaining disclosure that are beyond the control of the defence, additional time being required to try to deal with a preferable Crown Attorney, and the amount of time necessary to complete counseling or workshops as part of the deal.

Rushing a case or dealing with the wrong person at the wrong time could mean a permanent refusal and eventual prosecution. It can be the difference between the family being reunited and the charges dropped, or a lengthy/risky trial that may ultimately result in a criminal conviction. It could also be the difference between getting a withdrawn charge or a finding of guilt and a sentence of probation or jail.

The "Pre-Trial" resolution process must be carefully calculated and executed.

Some defendants make the mistake of not properly planning the pre-trial (which simply means talking to the Crown Attorney) negotiation process and pressure duty counsel or someone else to speak with the Crown on the first court appearance date. Depending on which Crown is working that day (often the duty Crown), this may result in the file being noted up as a refusal, which can prevent them from taking a favourable new position in the future (such as to drop the case). On the other hand, it can be a good idea if the Crown working that day is someone who is good to deal with for domestic cases. We know exactly which resolution Crown Attorneys are best to deal with and who to avoid.

The "pre-trial" or negotiation process should be approached with extreme care and calculation as it is perhaps the most important component of a successful case resolution.

Our clients are typically defendants whose careers, immigration status, and future travel abilities are put at risk

While many people charged with domestic crimes are individuals with seemingly little to lose (they already have criminal records, been refused entry to the US, not working or planning to seek employment, etc.), our clients are normally being charged with a criminal offence for the first time and have worked their entire lives to build their families and careers. For them, the difference between being placed on probation or getting a withdrawn charge can have a substantial impact on their life, freedoms, and future opportunities.

Not only is every case different, so are the Crowns, policies, and procedures at each GTA area (Toronto, Peel, York, Halton, Durham) courthouse.

Each courthouse in the GTA also views domestic case factors differently and it is essential that your lawyer knows exactly how things work at the particular courthouse that your matter is being heard at. For instance, in Peel Region (Mississauga/Brampton - 7755 Hurontario Street), incidents that happen in front of children are treated with extreme seriousness versus a more relaxed approach by Toronto city courts. In York region (50 Eagle Street, Newmarket), the Crowns are highly concerned with the accused’s behaviour at the time of arrest.

Knowing which factors are potentially problematic enables us to plan effective strategies in advance to mitigate the potential negative implications. In every case, the goal remains the same: have the charges

.

What does a withdrawn charge mean? Does it mean the case is dropped? Is it the same as a stayed charge?

Withdrawn is the best possible case disposition (final result) for a person who is charged with a criminal offence in Canada. This does not mean they were never arrested or charged. It means that the prosecutor (Crown Attorney) did not proceed with the charges and ended the case. It is not considered a finding of guilt or a conviction. Those who have their charges withdrawn do not have to plead guilty or not guilty (or anything) before a judge in court. The word "dropped" is a slang term that mostly refers to withdrawn charges, but is sometimes also used to refer to stayed charges.

There are differences between withdrawn and stayed charges and it is always in the client’s favour to have their charge withdrawn and not stayed. A lawyer should clarify that the Crown will withdraw and not stay their client’s charge (if possible) as it is to the client’s advantage when it comes to fingerprint destruction, public perception, and US/foreign travel. This is more of an issue in the Peel region (Mississauga and Brampton) than in the Toronto or York/Durham/Halton area courts.

What does withdrawn with a section 810 or common law peace bond mean?

Another potential issue is the requirement that the accused enter into a peace bond (s. 810 or common law) as part of the deal to withdraw the charges. We always try to avoid having our clients sign a peace bond because while active it will show up on a regular criminal record check with all GTA police forces (Toronto, York, Peel, Durham, Halton, etc.). The length or term of a peace bond for most domestic cases is 12 months. In the eyes of defence lawyers, common law peace bonds are considered slightly better than s. 810 peace bonds because their authority comes from the inherent jurisdiction of the court and not the Criminal Code of Canada. It is believed to be easier to prosecute a breach of a s. 810 peace bond than a common law one, though such proceedings are rare in both instances in Ontario.

Trying to use the peace bond conditions to further a family law agenda

In some cases we have also seen victims encourage the Crown to ask the judge for very restrictive conditions as part of the peace bond for their former partner (where the relationship has broken down). This can include forbidding the accused from attending the house, the child's school, birthday parties, and other events.

A peace bond, and generally the criminal justice system, should not be used as a tool to gain an advantage in a family law proceeding. We recognize when this is the motivating factor behind an allegation and fight to either avoid the peace bond or have it contain only very lenient conditions on the accused.

Even if the charges are withdrawn, they can still cause substantial problems for the accused’s employment, travel, and future career options.

Even if domestic charges are dropped (withdrawn or stayed), the accused may still experience problems with certain employment background checks, disclosure to professional regulatory bodies, and crossing the US border as a result of just simply being charged with a criminal offence. We handle approximately 250 non-conviction cases per year and these issues are paramount to all of our clients.

Getting the charges withdrawn is the most important first step, but proactively minimizing potential problems associated with being arrested, charged, and now being labeled as someone who is known to the police is also essential. For more information about these issues, please see our article on the potential consequences of non-convictions.

on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.

Your case will be defended by a fully licensed Practicing Lawyer of the Law Society of Ontario. For more information about our lawyer, click here.

Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

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. All clients are handled on a private retainer only.