In Ontario, a complainant cannot drop a criminal charge, and a sworn affidavit, often called an “affidavit of non-prosecution,” does not withdraw one. Only the Crown prosecutor can withdraw a charge, based on the strength of the evidence and the public interest. In domestic violence cases especially, the Crown will often proceed even when the complainant no longer wants to.
This is one of the most misunderstood topics in Canadian criminal law. If you are the accused, there is also a hard rule you must know up front: you cannot be involved in a complainant’s affidavit in any way; asking for one can turn your defence into a new criminal charge. This guide explains what these affidavits are, what they can and cannot do, and the real risks on both sides. For advice on your own situation, call Vilkhov Law free, confidential, 24/7 — at 416-807-4477.
Key Takeaways
- In Canada, criminal charges belong to the Crown, not the complainant. A complainant cannot “drop” charges, and no document forces the Crown to withdraw them.
- An “affidavit of non-prosecution” is a U.S. term with no formal equivalent in Canadian law. At most, a sworn statement is one piece of information the Crown may consider.
- In domestic violence cases, Crown policy in Ontario is generally to proceed even when the complainant recants or asks to withdraw — the case can continue on 911 calls, prior statements, and other evidence.
- The accused and their lawyer must never draft, request, fund, or arrange such an affidavit. Doing so can be obstruction of justice or witness interference and can breach bail conditions.
- A complainant who swears a false or inconsistent statement risks perjury or public mischief charges. Changing a sworn account is examined closely.
- If a charge is going to resolve without a conviction, it happens through defence counsel and the Crown — not by pressuring a complainant.
Can a Complainant Drop Charges in Ontario?
No. Once the police lay a charge, the case belongs to the Crown, and only the Crown can withdraw it. The complainant’s wishes are relevant but not decisive.
People often search for how to “drop charges against someone” after calling the police in the heat of a moment. In Canada, criminal prosecutions are brought on behalf of the state, not the individual. A complainant can tell the Crown or victim services how they feel, decline to cooperate, or provide new information, but they cannot end the prosecution. The Crown decides based on a two-part screening standard: is there a reasonable prospect of conviction, and is a prosecution in the public interest?
What Is an Affidavit of Non-Prosecution?
An affidavit is a written statement of facts sworn before a commissioner, notary, or lawyer; an “affidavit of non-prosecution” is an American term for a complainant’s sworn statement that they do not wish to proceed with a concept with no formal status in Canadian law.
In Canada, there is no procedure by which a complainant can file a document withdrawing a charge. What exists is simply a sworn statement a complainant may provide, setting out new facts or a change in perspective, which the Crown may take into account. Because it is sworn, it carries the same weight as testimony and the same consequences if it is untrue. Affidavits are used across many legal contexts (civil, family, immigration), but in the criminal context a complainant’s affidavit is information for the Crown, not a decision.
| What a complainant’s affidavit CAN do | What it CANNOT do |
|---|---|
| Give the Crown new information or context to weigh | Withdraw or cancel the charge |
| Reflect the complainant’s current wishes | Bind or compel the Crown to act |
| Occasionally affect the Crown’s assessment where it genuinely changes the evidence | Guarantee any outcome — especially in domestic violence cases |
Does an Affidavit Actually Get Charges Dropped?
Rarely, and never automatically, a sworn statement is one factor the Crown weighs, and in domestic violence files the Crown will frequently proceed regardless of what the complainant now says.
Ontario has long-standing policies directing that intimate-partner violence charges generally proceed on their merits and are not withdrawn simply because the complainant asks. There are practical reasons: complainants sometimes recant under pressure, and the justice system is alert to that. A recanting complainant’s earlier statement can still be used under R. v. B. (K.G.), a prior inconsistent statement can be admitted for its truth in the right circumstances, and the Crown may proceed using 911 recordings, photographs, medical records, and other witnesses. A sworn statement can sometimes affect the Crown’s assessment where it genuinely changes the evidentiary picture, but it is not a lever the complainant can pull to end the case.
The Risks — for the Accused and for the Complainant
This is where people get into serious trouble: an accused who becomes involved in the complainant’s affidavit can face new charges, and a complainant who swears something untrue can be prosecuted.
If you are the accused
You, your family, and your lawyer cannot draft, request, pay for, coordinate, or pressure a complainant to swear an affidavit. Contacting the complainant about the case can breach your release conditions and can amount to obstruction of justice or witness interference, serious offences that make your situation far worse. If you are subject to a no-contact order, any contact, even friendly or through a third party, is a breach. The correct path is to let your lawyer deal with the Crown.
If you are the complainant
An affidavit is sworn under oath. A statement that is false, or that contradicts an earlier sworn account, can lead to perjury or public mischief charges. You are entitled to tell the Crown and victim services your wishes, and you are entitled to independent legal advice, but you should never be pressured into swearing anything by the accused or anyone else.
| Action | Potential legal consequence |
|---|---|
| Accused contacting the complainant about the case | Breach of no-contact / bail conditions; obstruction of justice (s.139) |
| Anyone arranging, drafting, or funding the affidavit on the accused’s behalf | Obstruction of justice; witness interference |
| Swearing a statement that is untrue | Perjury (ss. 131–132) |
| Recanting or contradicting a prior sworn statement | Public mischief (s. 140); credibility consequences |
What Actually Moves a Case Toward Withdrawal
Charges are withdrawn when the Crown concludes there is no reasonable prospect of conviction or that prosecution is not in the public interest, reached through defence counsel and the evidence, not through the complainant.
Genuine paths to a resolution without a conviction include evidentiary weaknesses, Charter breaches, reliability and credibility problems, and, in appropriate cases, a peace bond or a diversion program. These are advanced by defence counsel in submissions to the Crown. For how this works in specific contexts, see our guides on getting sexual assault charges dropped in Ontario and dropping domestic assault charges, and our domestic assault page.
How a Sworn Statement Reaches the Crown
If a complainant provides a sworn statement, it is delivered to the assigned Crown, becomes part of the disclosure, and is shared with the defence; it does not go through the accused.
A complainant who wishes to provide a statement should obtain independent legal advice; they may retain their own counsel or seek guidance on how to do so lawfully. Once sworn, the statement is provided to the Crown handling the case and is entered into the official record, which means it must be disclosed to the defence. It is then one of the materials the Crown considers alongside all the other evidence in deciding whether the case meets the charge-screening standard.
The Role of a Criminal Defence Lawyer
For the accused, the value of counsel is not in obtaining an affidavit it is in testing the Crown’s evidence, protecting your rights, and communicating with the Crown lawfully.
“A sworn statement from a complainant is only one factor the Crown weighs, and it does not withdraw a charge — in domestic cases the Crown will often proceed regardless. The most important thing for anyone accused to understand is that they must never contact or influence the complainant. That does not help the case; it creates a new one.”
Contact Vilkhov Law
If you have been charged and you are hoping the complainant will “drop” the case, speak to a criminal defence lawyer before you do anything else — and do not contact the complainant. Vilkhov Law defends assault, domestic assault, and sexual assault charges across Toronto and the GTA. Free, confidential consultation, available 24/7, at 416-807-4477.
Frequently Asked Questions
Can a victim drop charges in Canada?
No. Charges are prosecuted by the Crown, not the complainant. A complainant can share their wishes and any new information, but only the Crown can withdraw a charge, based on the evidence and the public interest.
What is an affidavit of non-prosecution?
It is a U.S. term for a complainant’s sworn statement that they do not want the case to proceed. Canadian law has no formal equivalent. At most, a sworn statement is one piece of information the Crown may consider — it does not withdraw a charge.
Does an affidavit work to drop domestic violence charges?
Usually not. Ontario Crown policy generally directs that intimate-partner violence charges proceed on their merits, and the case can continue on 911 recordings, prior statements, and other evidence even if the complainant recants.
Can the accused or their lawyer help prepare the complainant’s affidavit?
No. The accused, their family, and their lawyer must not draft, request, fund, or arrange it. Doing so can be obstruction of justice or witness interference and can breach a no-contact order.
Is it illegal to change my statement or swear a new one?
An affidavit is sworn under oath. A false statement, or one that contradicts an earlier sworn account, can lead to perjury or public mischief charges. Get independent legal advice before swearing anything.
How do I tell the Crown I do not want to proceed?
You can communicate your wishes to the Crown or through victim services, and you can obtain your own independent legal advice. Your wishes are considered, but they do not decide the outcome.
What actually gets a charge withdrawn?
The Crown withdraws a charge when there is no reasonable prospect of conviction or prosecution is not in the public interest. That is determined through defence counsel and the evidence, not by pressuring a complainant.
