Challenges and Limitations of Using Affidavits to Drop Charges

1. The Role of Affidavits in Legal Proceedings
2. Credibility Issues
3. Conflicting Testimonies
4. Prosecutors and Judge Discretion
5. Practical Limitations and Legal Outcomes
6. Navigating Challenges with Affidavits

Affidavits in criminal justice are commonly used by complainants wishing to have the charges against another person dropped in cases like domestic violence, uttering threats, and similar criminal situations involving mandatory charging. Viewed as a solution to cases where the police are under obligation to lay the charges irrespective of the victim’s intention to proceed, affidavits can be an effective legal tool to help get criminal accusations dropped.

At the same time, dropping the charges with affidavits can be complicated in the presence of conflicting earlier testimonies and may expose the complainant to the risks of facing criminal penalties for false statements. Below we discuss the role and limitations of using affidavits, the importance of legal counsel in affidavit preparation, and outline practical steps for navigating challenges in using affidavits to drop charges.

The Role of Affidavits in Legal Proceedings

In Canadian criminal law, an affidavit is a statement made under oath by one of the parties — usually the complainant. Unlike the US, which has an affidavit of non-prosecution, there is only one type of affidavit in Ontario, which is a statement used to provide new evidence in the case. Affidavits add to the total body of evidence, while their admissibility is evaluated by the court.

When complainants seek dropping the charges with affidavits, it is important to know that simply stating that they are no longer interested in pressing the charges has no weight in the courtroom. Instead, the complainants need to present new facts and provide the Crown Attorneys with persuasive reasons why they might want to reassess their case.

Credibility Issues

In Canada, the weight of an affidavit in court as a piece of evidence can depend on the credibility of the person who is making it, known as the affiant. Specifically, under the Canada Evidence Act, the prosecution may question the affiant or any witnesses on whether they have been convicted of prior offences to assess their credibility.

Accordingly, the prosecution will consider the affiant’s previous criminal record when assessing the veracity of their statements in the affidavit. The legal credibility of affidavits can be further undermined by conflicting testimonies, for example, discrepancies between the affidavit and previous reports made to the police.

Conflicting Testimonies

When the complainant makes an affidavit, there is often a risk of contradicting their previous testimonies and other evidence. For example, when complainant tries to recant their previous version of events in an affidavit, their statements can come into conflict with their previous statements under oath, domestic violence questionnaires, the audio recording of the 911 call and other similar evidence.

In these situations, the complainant often faces serious risks resulting from conflicting testimonies. For example, making false statements or lying in an affidavit can potentially result in charges of perjury. In another scenario, acknowledging that previous statements under oath to the police were false can result in criminal charges for public mischief.

Prosecutors and Judge Discretion

According to the Crown Prosecution Manual, prosecutors exercise “a broad discretion to conduct cases in a way that ensures justice is done and is responsive to the particular circumstances of the case.” This fully applies to affidavits, including how they are viewed by the Crown Attorneys and the judge and their effectiveness in having the charges dropped.

As a statement of facts, an affidavit cannot prevent the prosecution from proceeding with the case, even if the complainant does not want another person to be charged. In the best-case scenario, an affidavit can help to convince prosecutors to reassess the case from the complainant’s perspective, clarify the relationship with the accused and provide reasons why a conviction may not serve the public interest.

Practical Limitations and Legal Outcomes

While a properly made affidavit can be a powerful tool for having criminal charges dropped, its ability to do so is limited when the affiant’s credibility is compromised. However, the main reasons why affidavits fall short are conflicting testimonies and contradictions with other evidence present in the case, for example, photos of injuries, footage from a body-worn camera on a police officer or a police report.

When the Crown considers a complainant’s affidavit, the prosecution prioritizes public interest in securing a conviction under the circumstances over the complainant’s intent to have charges dropped. For this reason, an effective affidavit needs to strike a balance between the pursuit of justice and the complainant’s interest to have the accused cleared of charges.

Navigating Challenges with Affidavits

While forms for affidavits are readily available online, a well-drafted statement under oath requires much more than filling in the blanks. For an affidavit to achieve its goal of having criminal charges dropped, it must be carefully drafted according to legal standards for affidavits in Canada within a broader context of all the evidence available in the case.

First, when drafting an affidavit, the affiant should be cognizant of the risks of criminal prosecution for making false statements or contradicting previous testimony or other evidence. Second, an affidavit must be professionally written to stand up to legal requirements and provide additional evidence on what happened before the police arrived. In practice, drafting such an affidavit is hardly achievable without the assistance of an experienced lawyer.

Conclusion

Affidavits are complex legal instruments, and their effect on the criminal case depends on the statements they contain and other evidence available to the prosecution. Meanwhile, it is worth noting that dropping charges with affidavits is not guaranteed for any type of offence — from domestic violence to assault with a weapon under the Criminal Code. Last but not least, making conflicting testimony under oath can expose the complainant to the risk of facing criminal charges for false statements.

While it is absolutely possible to have an affidavit filled in using a form available online and have it certified by a notary, such an approach rarely achieves the goal of having the charges dropped. Instead, contacting experienced criminal defence lawyers in Toronto to address affidavit challenges offers the best chances of obtaining the most favourable outcome under the circumstances.