Can Sexual Assault Charges Be Withdrawn Before Trial in Canada?

Key Takeaways

• In Canada, only the Crown prosecutor has the authority to withdraw sexual assault charges — not the complainant.
• The Crown proceeds only if there is a reasonable prospect of conviction and if prosecution is in the public interest.
• Charges may be withdrawn due to weak evidence, credibility concerns, Charter violations, or new exculpatory evidence.
• A complainant changing their mind does not automatically result in charges being dropped.
• Alternatives such as a peace bond may resolve the matter without a criminal conviction.
• Early involvement of a skilled sexual assault lawyer can significantly impact the outcome of the case.

In Canada, sexual assault charges can be dropped before the trial, but generally only if the Crown decides not to proceed with the case. After an alleged victim files a complaint, their decision about whether to proceed or withdraw has little or no say in directing the sexual assault charges.

Below, we explain the authority of the Crown in choosing whether to pursue the charges and explore various scenarios to have sexual assault cases dismissed.

Who Has the Authority to Withdraw Sexual Assault Charges?

The Crown Prosecution Manual sets clear guidelines for charge screening. These guidelines acknowledge that a decision of whether to proceed or drop the charges can be among the most difficult ones for a prosecutor and require a balancing of competing interests of the public, the accused, and the victim.

In turn, the decision by the complainant to withdraw allegations does not prevent the Crown prosecutor from continuing to trial. Instead, the Crown would evaluate whether there is a reasonable prospect of conviction and whether it is in the public interest to continue the prosecution.

On What Legal Basis Can Sexual Assault Charges Be Dropped?

The existence of a reasonable prospect of conviction and the public interest in continuing the prosecution determine whether the Crown will proceed or withdraw the charges.

Reasonable Prospect of Conviction

A reasonable prospect of conviction test requires an assessment of several factors, which include:

• availability of evidence,
• admissibility of evidence, for example, no Charter rights were violated when obtaining it,
• credibility of the witnesses.

This standard does not require the Crown to assess the probability of conviction, allowing prosecutorial discretion. Meanwhile, if at any stage the Crown Attorneys discover that there is no longer a reasonable prospect of conviction, the Manual guides prosecutors to have the sexual assault charges dropped.

Public Interest Considerations

If there is a reasonable prospect of conviction, the Crown needs to identify the presence of public interest in pursuing the charges.

When assessing the public interest, the prosecutors consider several factors, for example:

• the gravity of the incident,
• circumstances and concerns of the victim,
• age, physical health, mental health, or vulnerability of the accused, the victim, or any witness,
• the potential impact of the offence on the community and/or the victim,
• previous criminal history of the accused,
• whether the accused is willing to cooperate,
• the availability of any alternatives to prosecution, for example, a peace bond.

At the same time, sexual assault in Canada is treated as a serious offence. Public prosecutors vigorously pursue these charges and do not withdraw them lightly.

Does It Matter If the Complainant Wants to Withdraw the Complaint?

Even if the complainant does not want to proceed, the Crown may still pursue the sexual assault charges.

In Ontario, the prosecution is cautious when the complainant in a sexual assault case suddenly changes their mind or withdraws the complaint, especially in domestic or intimate partner contexts. If needed, the Crown can subpoena the complainant, asking them to testify regardless of their wishes.

Common Situations Where Charges May Be Withdrawn

Accordingly, if there is no reasonable prospect of conviction or no public interest to proceed, the Crown can have the sexual assault charges dropped.

Most common reasons where the prosecution may withdraw the charges include:

• Insufficient evidence. If the available evidence is too weak, the prosecution cannot support a conviction.
• Inconsistent statements. Contradictory testimonies by the complainant or key witnesses may raise questions for the Crown about whether the charges can be proven at trial.
• Credibility concerns. Doubts about the reliability of the complainant or witnesses undermine the prospects of conviction.
• New exculpatory evidence. New evidence, for example, text messages, surveillance footage, or a credible alibi, can convince the Crown to withdraw the charges.
• Charter breaches and inadmissible evidence. Evidence obtained in violation of Charter rights may become inadmissible in court and result in assault charges being dropped.
• Identification problems. If the Crown cannot prove the identity of the defendant as someone who committed the offence beyond a reasonable doubt, the charges can be dropped.
• Disclosure failures. If the prosecution fails to deliver full disclosure of evidence to the defence, it may weaken their case in court.

What Is the Difference Between Withdrawal, Stay of Proceedings, and Acquittal?

There are several scenarios when a sexual assault case does not proceed to trial, including withdrawal, stay of proceedings, and acquittal.

A withdrawal means the Crown decided to have sexual assault charges dropped before trial. In a stay of proceedings, the prosecution stops for up to one year and can resume if the Crown finds new evidence. An acquittal means that the court finds the accused not guilty. Below is the summary for each of these outcomes, outlining their key differences.

Can Charges Be Withdrawn at a Bail Hearing or Early Court Appearance?

In Canada, the prosecution can withdraw the charges at any stage of the process, including the bail hearing or pre-trial conferences. For example, the Crown may identify weaknesses in the case and consider withdrawing the charges due to low prospects of conviction.

While withdrawal of charges is fully at the discretion of the Crown, the early stages of the criminal process offer the prosecution an opportunity to re-evaluate the evidence and public interest. In turn, the defence lawyers can engage in early discussions and negotiations with the prosecution, exploring the opportunities to have the charges dropped.

How Defence Lawyers Work Toward Withdrawal

Criminal lawyers apply a full range of defence strategies to achieve the most favourable possible outcome. They scrupulously review all the evidence the prosecution has against the accused and identify any inconsistencies or Charter rights violations.

The criminal defence lawyers may engage in negotiations with the Crown at any stage or present exculpatory evidence. While it is the prosecution that has absolute discretion whether to withdraw or to proceed, engaging defence lawyers early is instrumental in identifying opportunities to have the case dismissed.

What Happens If Charges Are Withdrawn?

If the prosecution decides to withdraw the charges, there will be no conviction and no finding of guilt. If you were subject to bail conditions, they will be lifted, and you will not have a criminal conviction on your record.

At the same time, the existing publication bans usually remain in effect to protect sensitive information about the case. Also, arrest records may appear on certain checks, for example, a vulnerable sector check.

Can Sexual Assault Charges Be Resolved by a Peace Bond Instead?

In some cases, the Crown may seek a peace bond as a condition for withdrawal. Defined in Section 810 of the Criminal Code, a peace bond is a court-ordered recognizance entered by the defendant before a judge to “keep the peace” for up to 12 months, which usually includes having no contact with the victim.

The Crown may consider this option when the prospects of convictions are low or when proceeding to trial is not in the public interest. While a peace bond does not result in a criminal record, it may still appear on certain background checks.

Frequently Asked Questions

Can the victim drop sexual assault charges before trial?

Victims cannot drop or bring sexual assault charges, prosecutors do. Victims can withdraw their testimony, but the final decision of whether to proceed with the charges lies with the Crown.

How to beat a sexual assault charge in Canada?

Having an experienced criminal lawyer by your side is usually the best defence against allegations of sexual assault. A criminal lawyer can scrutinize the evidence against you, challenge the credibility of the testimonies of the witnesses, and develop a tailored defence.

Can I contact the victim to drop sexual assault charges?

After the police laid the charges, it’s not advisable to contact the victim to avoid the risk of hurting your case. It’s recommended to engage a criminal defence lawyer for any resolution talks with witnesses and/or the victims.

What is a peace bond for sexual assault charges in Canada?

In Canada, a peace bond means a court-ordered recognizance entered by the defendant to “keep the peace” for up to 12 months. Usually, this arrangement also includes a requirement to stay away from the complainant, among other conditions.

Does a peace bond show up on a criminal record check?

The peace bond does not equal the admission of guilt or conviction. Accordingly, entering into a peace bond usually does not result in a criminal record.

How long does it take to withdraw sexual assault charges before trial?

The decision of whether to pursue or dismiss the charges is taken solely by the Crown’s prosecutors, and it can take them from several weeks to several months, depending on the case.

Conclusion

When the sexual assault charges are dropped before trial, the defendant will have no conviction. Although this may be accompanied by a peace bond, the withdrawal of charges is considered one of the most favourable outcomes in a criminal case.

While the decision about whether to pursue or drop the charges lies with the Crown, the defence lawyer has a key role in exploring available opportunities to end the case without conviction. If you or your loved one faces criminal charges for sexual assault, please do not hesitate to contact our sexual assault lawyers in Ontario for a free initial consultation on how we can help with your case.

Frequently Asked Questions

Can sexual assault charges be dropped before trial in Canada?

Yes, but only the Crown prosecutor can withdraw the charges. The complainant cannot independently drop criminal charges.

Does it matter if the complainant wants to withdraw the complaint?

Not necessarily. The Crown may still proceed if there is sufficient evidence and public interest to justify prosecution.

On what grounds can sexual assault charges be withdrawn?

Charges may be withdrawn if there is no reasonable prospect of conviction or if continuing the prosecution is not in the public interest.

Can charges be withdrawn at a bail hearing or early court appearance?

Yes. The Crown can withdraw charges at any stage of the proceedings, including early appearances, if the evidence does not support continuation.

What is the difference between a withdrawal and a stay of proceedings?

A withdrawal ends the case immediately. A stay of proceedings pauses the prosecution for up to one year and can be revived within that period.

Will I have a criminal record if charges are withdrawn?

No. If charges are withdrawn, there is no conviction and no criminal record.

Can a peace bond resolve sexual assault charges?

In some cases, the Crown may agree to withdraw charges in exchange for a peace bond under Section 810 of the Criminal Code.