What is a Withdrawal?
Once a criminal charge is laid by the police, they will transfer the file to the Crown Attorney’s office to prosecute the individual. Once the charge is laid, the authority lies with the Crown to determine what will happen with the file. Only the Crown has the authority to withdrawal a charge once it has been laid.
The Crown has two choices when it received a new file: to go ahead with prosecuting the individual or withdraw the charge. Once the charge is withdrawn there is no outstanding case against the accused and the case is finished. Any conditions, warrants, recognizances or orders associated with the charge are cancelled.
When can a Charge be Withdrawn?
The Crown has the power to withdrawal a charge at any time before a plea is entered when the case is being heard in the Ontario Court of Justice. Where the case is being heard in the Ontario Superior Court of Justice, the Crown can withdrawal the charge at any time up until the end of the preliminary inquiry (if there is one).
Reasons for Withdrawal
When determining whether to move forward with prosecuting a case, the Crown must consider two issues:
- whether there is a reasonable prospect of conviction, and
- whether it is in the public interest to prosecute.
No Reasonable Prospect of Conviction
The first question a Crown asks when determining whether to move forward with prosecution or withdrawal a charge is whether there is a reasonable prospect of conviction. A Crown should withdrawal of charge where there is no reasonable prospect of conviction. This means the Crown does not believe they have enough evidence, or will be able to get enough evidence, to successfully meet their burden and prove that the accused committed the crime as charged.
When the Crown’s office initially receives a new case file, they review all of the evidence during a process known as “screening”. Once they have screened the file, they will decide whether there is a reasonable prospect of conviction based on the evidence they have been given. If there is not enough evidence to secure a conviction or a guilty plea, rather than waste court time and resources, the Crown will withdrawal the charge.
Not in the Public Interest
Where the Crown determines there is enough evidence to gain a conviction, and therefore a reasonable prospect of conviction, the next question they must ask themselves is if it is in the public’s interest to prosecute the individual.
A Crown may withdrawal a charge because prosecuting the individual would not be in the public interest. As a general rule, it is in the public’s interest to prosecute people for committing crimes, as this is the best way to deter other people and the accused from committing crimes in the future. The Crown must consider whether prosecuting the individual is in the public interest at the outset of the case, and continuously throughout.
When determining whether there is a public interest in prosecuting an individual the Crown will consider all relevant factors. Some of these factors include:
- The nature of the alleged offence. The more serious the alleged offence, the more public interest there will be in prosecuting the individual.
- For example, there is a much higher public interest in prosecuting someone accused of rape or murder than someone accused of a minor property crime.
- The consequences of the alleged offence on the victim/the nature of the harm caused to the victim. Victim input is also relevant.
- The consequences of the alleged offence on the community.
- The ability to maintain confidential sources (i.e., confidential informants).
- Public confidence in the administration of justice. It is important that the community remains confident in the criminal justice system’s ability to deliver justice and protect the public.
The Crown may consider these and other relevant factors when determining whether it is in the public interest to prosecute an individual.
In some cases, where an accused is charged with a minor offence and has no prior criminal record, the Crown will offer an extra-judicial resolution that allows the accused to resolve the matter outside the formal court system.
How is a Charge Withdrawn?
To withdrawal a charge, the Crown will usually just make a note on the case file instructing the charge be withdrawn at the accused’s next court date. On the next court date, whichever Crown is present in court will be able to look at the notes on the accused’s file and instruct the Court that the matter is to be withdrawn. The Crown will indicate whether the charge is being withdrawn for lack of reasonable prosect of conviction or because it is not in the public interest to continue.