In the majority of domestic violence charges cases such as assault, uttering threats, and mischief the alleged victim/complainant (which we will refer to as the “victim” for brevity) regrets calling the police or that the police otherwise became involved resulting in their spouse being charged. Every case is different and sometimes the police are called by a third party, but in most cases it is the victim that calls 911 themselves thinking that the police will show up and talk to their spouse to try and calm them down or perhaps ask them to leave for the night. In other cases it is the accused that calls the police and after talking to their spouse decide to press charges.
Even in cases where both parties (victim and accused) do not want to get back together, they often still want to be able to communicate for reasons such as family planning, child custody and access, financial planning etc. While the accused may have made a mistake or committed a criminal offence, this does not necessarily mean that the victim wants him (or her) to lose their ability to earn a living due to a criminal record or go to jail. The couple may also have children and it is important that the accused spouse be able to work and earn an income in the future to support them. Other concerns can range from being deported from Canada to not being able to travel and take their kids on a trip to Disney World in the USA in the future.
As a result of the potential consequences, many victims realize that their husband/wife/spouse/partner etc. is in a lot of trouble and want to do everything they can to help them soon after the charges are laid by the police. The first question they usually ask is: how can I drop the charges? The victim in a domestic case is not the decision maker as to what will happen. This means they cannot just call up the Crown Attorney or the police later and drop the charges. In Ontario, Crown Attorneys and the police have a policy to continue with charges in domestic violence cases (assault, uttering threats, mischief, etc.).
While the victim is not the decision maker, their input and opinion is extremely important. They are the Crown Attorney’s main witness and an essential part of the case. After charges are laid creating an affidavit is the #1 thing they can do to help their spouse’s case.
When the Crown Attorney is deciding whether to allow a variation of the undertaking or bail to allow for contact they will want the input of the victim. They would never allow contact without confirming that it is wanted by the victim. Further, when deciding whether to drop the charges or not, or whether to pursue a jail sentence or criminal record or not (every case is different), they will always take the input of the victim into consideration. While the victim in a domestic case can be forced to testify via a subpoena it is the preference of the Crown not to have to do this. For this reason many victim affidavits will say that they do not want to testify in court.
How can I recant my statement? Is an affidavit of non-prosecution me recanting my statement?
The supporting affidavit will reflect your current opinion of what should happen from this point on in your spouse/partner’s case. There is no way to take back what was already said to the police and it is a criminal offence to falsely accuse someone of a crime. In most cases the statement is made over the phone to 911 or on the doorstep or residence to the police which is written in their notepad or audio and sometimes video recorded via a body camera.
The police may also ask the victim to attend at the police station to give a formal statement under oath (KGB), but it is not necessary to charge the accused. In many cases the victim refuses to attend at the police station to give a statement. Nobody is legally obligated to provide a statement or talk to the police.
Whether the statement is made to 911, at the doorstep, residence, or on video at the police station the victim will often change their mind later about talking to the police after finding out how serious a domestic charge is. An affidavit is a reflection of the current opinion of the victim. It is a crime to lie to the police or falsely accuse someone of a criminal offence. The supporting domestic affidavit contains current opinions of regaining contact, not wanting them charged, having to testify against them, going to court, or having the accused jailed and get a criminal record, etc.
If I do an affidavit will I get in trouble since I already gave a statement to the police?
It is the job of the lawyer to ensure that you do not incriminate yourself in the affidavit. This means you cannot state that you lied to the police or made a false police report. Also, an affidavit is a sworn statement meaning that everything that is in it must be the truth, the whole truth, and nothing but the truth. It is an extremely serious offence (perjury) to lie under oath or affirmation. An affidavit is a sworn statement that must be taken by a commissioner of oaths in Canada.
Is an affidavit a “silver bullet” that will work 100% of the time to have the charges dropped and communication allowed immediately?
No it is not a “silver bullet”. There are no guarantees in criminal legal cases. It is however the most substantial thing the victim can do to help. Domestic cases take time and the victim is never the decision maker, but you are a very important part of the case and creating an affidavit maximizes your ability to influence it. While there are no quick fixes, creating an affidavit of non-prosecution is the #1 thing a victim can do to help their spouse or partner in a domestic case.
How does the affidavit creation process work? Do I have to meet with the lawyer in person?
We will have an intake session with you and then create the affidavit based on your interests and wishes. We will also ensure that it contains nothing that would incriminate or get you in trouble.
The affidavit creation process can be done either in person or remotely via the phone/Zoom. Our affidavit clients live throughout all of Ontario and therefore it is not always feasible to travel to our offices. Some people prefer to meet us in person whereas others want to do it from home. Either way, it is up to you. Nobody is required to travel.
What happens after the affidavit is created?
We will provide it directly to the Crown Attorney at the courthouse where your spouse or partner’s case is being heard at. If we know who their lawyer is we will also provide it to them directly. If we don’t know who the lawyer of your accused partner or ex is, or they do not have a lawyer (perhaps being assisted by LAO duty counsel), the Crown Attorney will have to disclose it to them themselves as part of the case.
I have been in touch with the Victim/Witness Assistance Program (VWAP). Can’t I just deal with them for free instead?
You can if you want. To our knowledge they do not do affidavits of non-prosecution in domestic cases in Ontario though. Our affidavit clients have often already spoken to VWAP and are looking to go beyond that in terms of trying to help their spouse. In our experience the VWAP is not usually supportive of the accused in criminal domestic violence cases. We are personally aware of cases where the VWAP aka victims services office promote a "they will do it again" mentality and do not treat criminal defence lawyers in a supportive manner.
The reason our clients create an affidavit is to try to help the accused (spouse, partner, friend, ex, etc.) regain contact and avoid a criminal record. They may have made a mistake, got drunk, too angry, acted poorly, went too far during an argument, but this is not necessarily an indication of future behaviour nor a justification for breaking up a family, sending someone to jail, or ruining their life with a criminal record that would negatively impact their job, travel, immigration, and future potential.
If this is not a “silver bullet” that will make everything just go away immediately why should I do it?
Every victim is in a different situation in terms of the seriousness of the case, their relationship to the person charged, their financial circumstances, etc. Some people just simply can’t afford to pay a lawyer to create an affidavit of non prosecution. But for those who can afford it they often just want to do everything they possibly can to help their spouse/partner.
Creating an affidavit may be the difference between someone’s husband going home after 4 or 5 weeks instead of 4 or 5 months. It may be the difference between the charges being dropped (withdrawn - perhaps with or without a peace bond) or a guilty plea to a discharge (which is not as good), a suspended sentence (permanent criminal record) or jail (always a permanent criminal record).
Creating an affidavit shows the accused that you did everything you possibly could to help your accused partner come home, regain contact, and avoid a criminal record.
Over time people’s feelings can change. Sometimes people change their minds. In domestic violence cases in Ontario often the alleged victim changes their mind about calling and talking to the police after realizing they are banned from communicating (aka a restraining order) and that their spouse may end up going to jail and getting a permanent criminal record. Unfortunately the victim cannot unilaterally choose to drop the charges.
This decision can only be made by the Crown Attorney. Creating an affidavit of non-prosecution is the #1 most significant thing a victim can do to help the accused. The accused will know that you created an affidavit and are trying to do everything you possibly can to help them out of this situation.
My spouse is not allowed to talk to me. How can I discuss this with them?
In most cases if you are the victim in a domestic violence case in Ontario the accused is not legally allowed to talk to you. For this reason we never encourage a victim to speak to their accused partner. Creating a supporting affidavit to try to help them be allowed to contact you again and avoid a criminal record must be an independent decision that you make alone.
The person who is criminally charged will be under release conditions not to have contact with you (normally a Form 10 Criminal Undertaking or a Form 11 Release Order after a bail hearing). This includes both direct and in-direct contact (through a 3rd party, whether via phone, the internet, email, text messages, social media, etc.). If you are the victim in a domestic case and want to do an affidavit of non-prosecution this needs to be completely your decision alone.
So if I do an affidavit will it help my husband, wife, etc. who was charged by the police?
It is the most substantial thing you can do to help them in getting the release conditions varied to allow contact and return home as soon as possible and avoid getting a criminal record, having immigration/IRCC problems, be banned from travelling to other countries in the future including the United States, and going to jail. It is the #1 thing you can do to assist after the fact of the police pressing domestic charges.
My spouse or partner is not a Canadian citizen, could this cause problems with immigration (IRCC), travel (including to the United States), and employment background checks?
Of course it can. In any domestic case (assault, threats, mischief, etc.), the immediate concerns of the victim are usually related to the release conditions preventing contact between the accused and their spouse/partner/ex/etc.
While it is important to try to get these release conditions changed to allow contact as soon as possible, the long term potential consequences and punishments of the charges are the most important goal for the criminal lawyer in charge of the case in terms of a final result. Most affidavits will address both of these issues but every case is different. Some victims do not want to regain contact or resume the relationship but may also not want the accused to get a criminal record or go to jail for various reasons (usually personal, financial,or child related).
In a lot of cases the charges are new and everything just happened very recently. Many alleged victims are not sure how they feel about what happened and may need more time to reflect on it and their relationship with the accused. If this is something that just happened recently you may need more time to think about it before creating an affidavit. We only create affidavits in cases where the alleged victim is certain that they want to help the accused with their criminal case (remove no contact orders, non attendance orders and avoid a criminal record/jail).
What information will you need from me to create an affidavit?
We will need to properly identify you including your full legal name, date of birth, and current address. We will also need you to take a picture of your ID (such as your Ontario driver’s license, OHIP card, passport, Ontario purple ID card etc.) and send it to us. The swearing of the affidavit is normally done via Zoom which is now permitted given COVID restrictions but as mentioned above can also be done in person at our offices.
I refused to go to the police station to give a statement under oath (audio or video), or did not want my statement at home to be recorded, or refused to speak after calling the police / 911. How come my partner is still being charged?
Sometimes there are 3rd party witnesses (neighbour, relative, random person on the street etc.), but often the victim will have said something to the police to incriminate their spouse. This could be to 911, to the general police phone line, to the police who show up at the doorstep and respond to the call, or in a more formal interview statement that is audio or video recorded. The most formal is a KGB statement under video and under oath. All it takes are statements to 911 or at the doorstep to get the spouse charged in a domestic case. Some statements are considered more reliable than others however and creating an affidavit may help reduce the usefulness of a statement in court.
When is the best time for a victim to create an affidavit to help the accused?
The affidavit can influence the Crown’s position at any stage in the process and also will be considered by the Judge in the JPT, trial, and sentencing stages if the accused is ultimately found guilty.
What do you charge for creating a supportive domestic affidavit and submitting it to the Crown Attorney? I just have some questions. Can you answer them for free?
We can only take and answer questions from potential clients, meaning alleged victims located in Ontario who are intending to hire us to create an affidavit or who are looking for a lawyer to defend them for their current criminal case. We currently charge a flat fee of $1000 + hst to create supporting affidavits for victims in domestic cases.
Do I have to meet with you in person to create an affidavit or can it be done online?
You do not have to meet with us in person. Currently in 2024, in response to the COVID-19 pandemic, affidavits can now be created via Zoom, Microsoft Teams, Google Hangouts or over the phone (remotely). This makes the process relatively simple as there is no commuting required to create the affidavit and provide it to the Crown Attorney and your partner’s criminal defence lawyer (if they have one otherwise it will be provided to duty counsel). Because of this we are able to accept affidavit creation clients throughout all of Ontario, Canada.
If your spouse or partner has been charged and you want to try to help them by creating a supporting victim affidavit, please call us at: 647-228-5969.
Call us today for help
If you are the victim in a domestic violence case and want to do everything possible to assist your spouse/partner in getting their no direct or indirect contact bail or criminal undertaking varied to allow them to go back home and avoid getting a criminal record and having to go to jail, call us.
We charge a flat fee of $1000.00 +hst for supporting affidavits in domestic violence cases, which is perhaps the lowest in the industry.