WILL ACCESSION TO VICTIM INPUT INCENTIVISE FALSE ACCUSATIONS?
It is worth addressing a possible concern that complainants who are not held to their police statements – subpoenaed to testify and be cross-examined at trial – are more likely to make false statements to police. The concern is that there is an incentive (that is, no disincentive), for a complainant to make a false accusation, use it to procure the outcome they desire, and worst-case-scenario if their desire is not met, simply ask the Crown to drop the charge so that they are not forced to testify and be confronted with their false accusation.
While this is a concern, let us not forget that no accused is forced to accept any disposition before trial. Nobody can force you to sign a peace bond or to undergo counselling. Essentially, therefore, an accused may say that unless the charge is being withdrawn outright, he wants to go to trial and test the evidence of the complainant.
But realistically, for an accused facing the very serious consequences of a criminal conviction, and paying a lawyer to run a trial, refusing to attend counselling for the sake of challenging an accusation – even if he knows it to be false – may not be in his best interest. It may be “cutting off his nose to spite his face” by running the serious risk of a finding of guilt.
And so the concern is a valid one. We are working with the presumption that the policy the Crown takes towards allowing victim input to influence how, or if, they prosecute a charge, will influence how victims or alleged victims act from the first.
However, on a balance, I would emphasize the benefits of encouraging actual victims of domestic assault to come forward, and then collectively – the Crown, the complainant, the accused and his lawyer – determine what is the proper and most beneficial outcome for all parties.
And from a defence perspective, allowing an “out” for false victims to recant (or not proceed with their false accusation at trial) likely trumps the danger of encouraging false accusations which would not likely lead to a conviction in any event, as a good lawyer would expose the falsehood at trial.
WHAT CAN YOU DO AS A VICTIM OR AN ACCUSED OF DOMESTIC VIOLENCE?
Unfortunately, this discussion on Crown policy with respect to victim input will most likely never reach the hands of any decision-makers in that office. And that would be the quickest way to the positive change outlined above.
However, this is not merely an academic exercise. If you are the victim of a domestic assault and find yourself in the conundrum that so many complainants do, you can hire a lawyer to help navigate the process and try to enlighten the Crown with some of the above arguments, so that YOUR best interest can be pursued.
Similarly, if you have been charged with domestic assault, only a good lawyer can help you navigate this process and secure the optimal outcome for you and your family.
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