- What is an Affidavit?
- Circumstances Requiring an Affidavit
- Preparing the Affidavit
- Legal Assistance in Preparing an Affidavit in Toronto
- Submitting the Affidavit
- What to Expect After Affidavit Submission
- Prepare an Effective Affidavit with a Criminal Defence Lawyer
The words “dropped charges” are music to the ears of anyone arrested on criminal charges in Canada – but how does one turn these words into action? Is there, in fact, a legal process under Canadian law that can successfully encourage a Crown prosecutor to drop criminal charges?
While you or your criminal defence lawyer can ask the Crown to drop charges during pre-trial negotiations, if they don’t deem you eligible for diversion, they will probably not withdraw the charges without a good reason. Absent any weak evidence or a lack of public interest in prosecuting the case, your best hope of convincing the Crown to drop charges is if the complainant can encourage them to do so.
From a process standpoint, an affidavit submitted to the Crown from the complainant is one of the most effective means of securing dropped charges. While a complainant can verbally ask Crown attorneys to drop charges, it doesn’t carry the same weight as an affidavit, which becomes part of the case record.
However, keep in mind that the accused and their defence lawyer play no role in developing and submitting these types of affidavits in Toronto courts. With this in mind, let’s look closer at the affidavit’s role in encouraging the Crown to drop charges.
What is an Affidavit?
If asked what does an affidavit mean and what are affidavits used for, most Canadians can correctly answer that it is a legal document, but few can provide additional detail.
An affidavit in Canada is a statement of facts regarding a legal matter that has been sworn or affirmed to be true in front of a lawyer, notary public, courtroom staff, or commissioner taking affidavits. As a sworn statement, an affidavit can be submitted as legally binding evidence in criminal cases, and becomes part of the case record.
Circumstances Requiring an Affidavit
Utilized in both criminal and civil law, affidavits serve various purposes depending on the legal matter at issue. Some affidavits are simple documents that confirm the truth of something, whether it be someone’s identification, ability to enter into a contract, or that they’ve signed or otherwise carried out a required obligation. Meanwhile, other more complex affidavits serve as written evidence in a case by presenting a sworn statement of facts from a witness or complainant.
Whatever the purpose, the person who signs the sworn document is known as the “affiant.”
Affidavits submitted to encourage dropped charges are often erroneously referred to as an “affidavit of non-prosecution.” While the term is used in U.S. legal cases, there is technically no Canadian equivalent. Instead, an affidavit that seeks dropped charges is a sworn statement of facts from a complainant that provides new evidence or facts about the case that offer cause for dropping them.
Why, you ask, would a victim want to drop charges?
It’s more common than you think, especially in domestic assault cases and, to a lesser degree, with sexual assault charges and simple assaults. The Canadian government has initiated a proactive approach to address domestic violence cases, which encourages police to have zero tolerance and make an arrest when responding to reported incidents. In many cases, the partners of those arrested were never interested in laying charges, whether they called the police or the response was generated by a third party. These charges can come as a shock, especially when the alleged victim and accused realize that the severe penalties that come with a conviction can significantly disrupt their lives and cause further damage to their relationship.
Some sexual assault victims decide to seek dropped charges because they regret reporting the incident. In some cases, a victim might believe that the charges (and punishment that might come with a conviction) represent an overreaction to the incident. In others, they might decide that they don’t want to go through the legal hassles involved with the prosecution.
Simple assault victims may choose to seek dropped charges for similar reasons. In both cases, the closer the relationship between the accused and victim, the greater the likelihood that the victim may be amenable to dropping charges.
Preparing the Affidavit
If you were to ask us how to write a letter to the Crown attorney to drop charges, we would encourage you to prepare the affidavit in Toronto with our assistance. As an official part of case proceedings, an affidavit submitted to the court must conform with specific legal requirements to be accepted as valid. They also carry inherent legal risks, especially if the new written evidence in the affidavit contradicts existing evidence held by the Crown.
Lying on an affidavit can expose the affiant to charges of perjury in Canada. If an affidavit recants a victim’s previous statements to police, it could lead to criminal charges of public mischief, or perjury charges if the statements were given to police under oath.
Legal Assistance in Preparing an Affidavit in Toronto
Rather than advising you on how to write an affidavit for Toronto courts, an experienced affidavit lawyer can carefully prepare an affidavit for you that accounts for the Crown’s evidence and mitigates the affiant’s potential legal risk. In particular, your lawyer will ensure that the affidavit does not incriminate you for lying to the police or making a false police report.
An effectively constructed affidavit can help a Crown attorney assess the charges from the victim’s perspective and provide insight into why they might want the charges dropped. In domestic assault cases, it can provide a more comprehensive picture of the relationship, and perhaps demonstrate how the charges resulted more from misunderstanding than actual violence. It also informs the Crown that the complainant may not be a willing witness at trial, which often represents a distinct weakening of their case.
If you are concerned about how much an affidavit costs, we would advise you that the expense is invaluable if it secures the desired dropped charges, and that a well-crafted affidavit can make all the difference in securing such an outcome.
Submitting the Affidavit
Your lawyer can directly submit the prepared affidavit to the Crown attorney handling the case in the court where the case is being heard. If the accused’s lawyer can be identified, they will be provided a copy as well. If not, the Crown will disclose the affidavit to the accused and their lawyer as soon as possible.
What to Expect After Affidavit Submission
The sooner you can submit an affidavit to the Crown, the more potential effect it might have on the case. If Crown attorneys receive an affidavit before determining how they intend to proceed with the case, it might be more likely to steer them toward dropping the charges.
An affidavit can provide the Crown with greater clarity about the context of the incident that resulted in charges, and give them more perspective about evidentiary strength and degree of public interest in securing a conviction – with that being said, however, an affidavit can also influence the Crown’s thinking during any stage of the legal process, and will usually prove influential during any pre-trial negotiations between the Crown and the defence.
Prepare an Effective Affidavit with a Criminal Defence Lawyer
If you’re the alleged complainant in an Ontario domestic assault case who doesn’t want to proceed with the charges, consult with a skilled criminal defence lawyer in Toronto. An experienced defence lawyer, such as ours at Vilkhov Law, can prepare a compelling affidavit offering logical justification for convincing the Crown to drop charges against your loved one.
