The Complainant Wants to Drop the Charges: Why That's Not a Silver Bullet

It is one of the most common things we hear from clients, particularly in domestic assault cases: “The complainant doesn’t want to press charges anymore. Can’t they just drop them?”

The short answer is no — and understanding why is critical to making good decisions about your defence.

Who “Owns” the Charges?

In Canada, criminal charges are not the complainant’s to drop. Once the police lay a charge, the prosecution is conducted by the Crown Attorney on behalf of the state — not on behalf of the complainant. The complainant is a witness, not a party. They do not have the legal authority to withdraw, drop, or discontinue a criminal charge.

Only the Crown Attorney can withdraw a charge, and they make that decision based on two criteria:

1. Is there a reasonable prospect of conviction? (Can the Crown prove the case?)
2. Is prosecution in the public interest?

The complainant’s wishes are a factor in this analysis — but they are only one factor, and often not the decisive one.

What Is an “Offside” Complainant?

In criminal law practice, a complainant is described as “offside” when they are no longer cooperating with the prosecution. This can take several forms:

• Recantation: The complainant says the original allegations were false, exaggerated, or misunderstood. They tell the Crown (or the police, or the defence) that the incident did not happen as originally reported.
• Reluctance to testify: The complainant does not want to come to court, does not want to relive the experience, or does not want to be responsible for the accused being convicted.
• Active opposition: The complainant writes to the Crown, calls the police, or swears an affidavit asking that the charges be withdrawn. They may say the prosecution is causing them more harm than the alleged offence.
• Ongoing contact with the accused: The complainant is communicating with the accused in violation of bail conditions — sometimes initiating the contact themselves — which undermines the Crown’s narrative that the complainant needs protection.

Why the Crown Doesn’t Simply Drop the Charges

1. The Mandatory Charge Policy

In domestic cases, Ontario’s Mandatory Charge Policy requires police to lay charges whenever there is evidence of a domestic assault — regardless of the complainant’s wishes. The same policy logic extends to prosecution: the Crown’s office has internal policies that strongly discourage withdrawing domestic charges simply because the complainant has changed their mind.

The rationale is that domestic violence complainants are often subject to pressure, manipulation, or intimidation by the accused (or the accused’s family), and that allowing complainants to “drop” charges would enable abusers to escape accountability. Whether or not this rationale applies to your specific case, it is the institutional framework within which the Crown operates.

2. Recantation Is Not Necessarily Believed

When a complainant recants, the Crown does not automatically accept the recantation at face value. The Crown may conclude that:

• The original statement was the truthful one, made in the immediate aftermath of the incident when the complainant was being candid
• The recantation is the product of pressure, reconciliation, financial dependence, fear, or a desire to protect the accused
• The recantation is itself unreliable — the complainant may be minimizing or rewriting history

The Crown assesses the credibility of the recantation just as they assess the credibility of the original complaint. A recantation does not erase the original statement — it creates a credibility problem that the Crown weighs in deciding whether to proceed.

3. The Crown Has Other Evidence

Even without a cooperative complainant, the Crown may have enough evidence to proceed:

• 911 recordings — the complainant’s own words in the immediate aftermath, which are admissible as spontaneous statements or excited utterances
• Police body-worn camera footage — capturing the scene, injuries, the complainant’s demeanour, and any statements made to officers
• Photographs of injuries, property damage, or the scene
• Medical records documenting injuries
• Statements from other witnesses — neighbours who heard the altercation, children who were present, friends the complainant spoke to afterward
• Prior statements — if the complainant gave a detailed written or video statement to police, that statement may be admissible at trial even if the complainant recants on the stand (under the KGB procedure for prior inconsistent statements)

The Crown may decide that these pieces of evidence, taken together, provide a reasonable prospect of conviction — with or without the complainant’s cooperation.

4. The KGB Statement: Using the Original Statement at Trial

If the complainant recants at trial — testifying that the incident did not happen or that they were exaggerating — the Crown can apply to introduce the complainant’s prior inconsistent statement as evidence of the truth of its contents. This is done under the procedure established in R. v. B.(K.G.):

• The prior statement must have been made under oath or solemn affirmation (or be a video-recorded statement that is sufficiently reliable)
• The statement must be inconsistent with the complainant’s trial testimony
• The Crown must satisfy the court that the statement is necessary (because the witness has recanted) and reliable (because of the circumstances in which it was made)

If the KGB application is successful, the judge or jury can rely on the original statement — not the recantation — as evidence. This means that a recanting complainant can actually make the Crown’s case stronger in some circumstances, because the original statement comes in as evidence while the defence is left trying to explain two contradictory accounts.

What an Offside Complainant Actually Means for Your Case

An uncooperative complainant is helpful — but it is not a guaranteed outcome. Here is how it actually affects the case:

It Strengthens the Argument for Withdrawal

When we make submissions to the Crown about why charges should be withdrawn, a complainant who does not support the prosecution is a significant factor. We present:

• The complainant’s stated position (through their lawyer, a letter, or an affidavit)
• The impact of the prosecution on the complainant and their family
• The weakness of the remaining evidence without the complainant’s testimony
• The availability of alternative resolutions (PARS, peace bonds) that address the Crown’s concerns without a conviction

Many domestic assault cases are ultimately resolved by withdrawal in circumstances where the complainant is offside — but the withdrawal is typically part of a negotiated resolution (such as a peace bond or completion of PARS), not simply a response to the complainant’s request.

It Creates Cross-Examination Opportunities at Trial

If the Crown proceeds to trial despite the complainant being offside, we have powerful cross-examination material:

• The complainant’s own recantation or reluctance
• The inconsistency between their original account and their current position
• Any communications the complainant has had with the accused, the defence, or others that reveal their true state of mind
• The complainant’s motivations for both the original complaint and the recantation

A complainant who does not want to be in court and does not support the prosecution is, generally, a weak Crown witness. But weak is not the same as non-existent — the Crown can still compel the complainant to testify by issuing a subpoena, and a reluctant witness is not the same as a witness who will affirmatively help the defence.

It Does NOT Mean You Should Contact the Complainant

This is the most important practical point in this article. If the complainant is reaching out to you, texting you, calling you, or telling you they want the charges dropped — do not respond. If you are on a no-contact order, any contact is a criminal offence, regardless of who initiates it. The complainant cannot consent to a breach of your bail conditions.

If the complainant contacts you:

1. Do not respond — not even to say “I can’t talk to you”
2. Screenshot the messages and preserve the evidence
3. Tell your lawyer immediately

The complainant’s unsolicited contact can be useful evidence of their state of mind and their attitude toward the prosecution — but only if you do not jeopardize your bail by responding.

The Complainant’s Affidavit

In some cases, the complainant will swear an affidavit — a sworn written statement — asking the court or the Crown to withdraw the charges. The affidavit typically states that:

• The complainant does not wish to proceed with the prosecution
• The complainant does not fear the accused
• The original complaint was exaggerated or made in the heat of the moment
• The prosecution is causing the complainant hardship (financial, emotional, familial)

How Much Weight Does an Affidavit Carry?

An affidavit is evidence of the complainant’s current position, but it is not determinative. The Crown may:

• Accept the affidavit and agree to a resolution (peace bond, PARS, withdrawal)
• Accept the affidavit but still proceed based on other evidence
• Reject the affidavit as unreliable — particularly if there are concerns about pressure or coercion

The court, for its part, will consider the affidavit in the context of all the evidence — including the original complaint, the circumstances of the recantation, and the dynamics of the relationship.

An affidavit is a useful tool — we regularly assist complainants’ counsel in preparing them — but it should be understood as one piece of a broader strategy, not a magic bullet.

How We Use an Offside Complainant Strategically

When the complainant is offside, we integrate that fact into a comprehensive defence strategy:

1. Pre-trial Crown submissions: We present the complainant’s position, the weakness of the remaining evidence, and a proposed resolution (typically a peace bond or PARS completion) that satisfies the Crown’s concerns while avoiding a conviction.
2. Bail variation applications: An offside complainant who is seeking contact strengthens the argument for modifying no-contact conditions — though as discussed in our bail variations guide, the Crown’s agreement is not guaranteed.
3. Trial preparation: If the Crown insists on proceeding, we prepare to cross-examine the complainant on their recantation, their communications, and their motivations — while simultaneously challenging the admissibility and reliability of their original statement.
4. Charter arguments: If the prosecution of a case where the complainant is offside results in unreasonable delay, we may bring a Jordan application for a stay of proceedings.

The Bottom Line

An offside complainant is a significant advantage — but it is not an automatic resolution. The Crown has institutional policies, independent evidence, and legal tools that allow them to proceed despite the complainant’s wishes. The complainant’s position is one piece of a larger puzzle, and it needs to be handled strategically.

Do not assume the charges will simply go away because the complainant wants them to. And above all, do not contact the complainant to discuss the case — no matter how tempting it may be.

For a full overview of how domestic assault charges work in Ontario — including the mandatory charge policy, bail conditions, and defence strategies — see our guide on what happens when you’re charged with domestic assault.

Dealing with an offside complainant? Contact us to discuss how to use this to your advantage — without putting your bail at risk.