Recanting a Statement of Domestic Violence in Ontario

In domestic violence cases, the police often take a statement under oath from the alleged victim and use it to charge the accused.

But is recanting a statement possible?

Domestic violence cases are varied and range from relatively minor cases like a grab on the arm or light shove to extreme violence resulting in significant injuries.

Sometimes, after the victim has given a statement to the police, the couple reconciles their differences and the victim wants to recant the statement, claiming that he/she is no longer certain of remembering the events clearly.

The expectation that the police will simply drop the charges rarely eventuates. The Crown Prosecution may proceed with the case regardless, aware that victims are sometimes pressured by partners into recanting a statement.

In short, it’s not the victim’s decision whether or not to press charges or to pursue a conviction.

Recanting a statement made under oath in Ontario is highly unlikely to end the issue. Here’s what else you need to know.

To recant a statement means to take back as untrue part or all of the details that you have provided to the police.

Recanting is rare in most types of criminal cases but with domestic violence, which involves family and intimate relationships, it’s quite common for a victim to want to recant a statement.

Domestic violence cases are treated very seriously in Ontario.

Often, after the police are called out to a domestic violence incident, the alleged perpetrator will be put on conditions not to contact the victim. The accused is likely to be charged with assault, uttering threats, mischief or another crime and will be informed of an upcoming court date. This means that the criminal justice process has already begun.

The police may ask the victim to come to the station to provide a formal statement that strengthens their case against the accused. The victim is entitled to refuse to make a statement but, regardless, it is unlikely to prevent the partner’s criminal proceeding.

If an accused person is charged, the police believe they have enough evidence to prove that a criminal offence occurred. This often includes a “statement” of sorts from the victim during a 911 call (which the police will have a recording of) or from a CCTV bodycam, an audio recording or the police officer’s notepad while attending the alleged domestic violence incident.

The simple fact, then, is that a formal statement may not be required for criminal charges to proceed but the police usually request it to bolster their case.

Some domestic violence victims don’t want to press charges but make the call to the police in the belief that their presence will calm the situation.

If a victim later tries to change what they said happened, it means they may have lied to or misled the police initially, which in itself could lead to a criminal charge.

The decision of whether or not to press charges will be the responsibility of the police and the Crown Prosecution will decide if there is enough evidence to convict the accused.

The original statements from the alleged victim can be used even if a formal statement is recanted — regardless of whether the victim approves. The victim can also be subpoenaed (legally forced) to testify in court.

So, recanting a statement may not have the desired effect and a partner may still be held criminally liable for his/her actions. The case may still go to trial and, even if there is a good chance that the defence will win because of “reasonable doubt”, the sad truth is that domestic violence often recurs in such situations.

Many times, even if the relationship is over, the alleged victim doesn’t want the alleged perpetrator to have a permanent criminal record or, in the worst cases, go to jail. This could affect parental commitments, child support or spousal support contributions and there may also be emotional reasons for wanting to help.

Recanting a statement is rarely the best option for victims who want to help their partners and hope for the charges to be dropped.

If the statement can’t be recanted, the victim can create a supporting victim affidavit of non-prosecution. This is a legal document that can be provided to the Crown prosecution, the lawyer of the accused and sometimes the judge in court, enabling the victim to provide input that can influence the criminal prosecution and verdict.

A supporting victim affidavit of non-prosecution can be valuable evidence in a domestic violence trial. Because of the wide range of actions that constitute domestic violence, many possible sentences are available to judges.

Completing an affidavit can help a partner or spouse avoid the worst consequences of a domestic violence charge by providing context to the incident that prompted the original police call and potentially mitigating the circumstances surrounding it.

The feelings and wishes of the victim should also be taken into account by the Ontario courts when deciding on the level of guilt that can be assigned to the perpetrator — and hence affect the sentence handed down by a judge.

Sometimes, the affidavit can result in the following:

• Adjustment of the no contact/communication clauses of the Undertaking or Release Order
• The accused returns home
• The charges are dropped
• The accused serves no jail time
• The defendant has no criminal record

Therefore, an affidavit may be well worth considering as an effective alternative to recanting a statement.

For legal advice about a domestic violence case, speak to one of our criminal defence lawyers in Ottawa during a free consultation.