Facing an assault charge in Canada can be daunting, especially when the case seems to depend on a single person’s testimony. In many cases, the complainant’s evidence forms the backbone of the Crown’s case. But what if the complainant decides not to testify?
This situation is more common than many people realize, particularly in domestic assault prosecutions where emotions and relationships are complex. Importantly, once charges are laid, the complainant does not control the case; the Crown does.
Even if the complainant wants to stop cooperating, the Crown can still proceed if there is enough evidence to support a reasonable prospect of conviction.
This blog explains how Canadian courts handle assault charges when a complainant refuses to testify, and how an experienced assault defence lawyer can strategically respond.
Why Complainant Testimony Matters
In most assault prosecutions, especially those involving intimate partners, the complainant’s testimony is the central piece of evidence. Section 265(1) of the Criminal Code of Canada defines assault as the intentional application of force without consent, or threatening to do so while having the ability to carry it out.
Because these cases often lack independent witnesses or physical evidence, credibility is usually the key issue. If the complainant does not testify, it becomes far harder for the Crown to prove guilt beyond a reasonable doubt, as required by R v Lifchus, [1997] 3 SCR 320.
Can The Crown Compel The Complainant To Testify?
Subpoena Powers And Compellability
The Crown can compel a complainant to testify by issuing a subpoena under section 698 of the Criminal Code. If served, the person must attend court. If they do not appear, a judge may issue a witness warrant under section 705 to have them arrested and brought to court.
Once in court, they can be compelled to testify under oath. If they refuse to answer, they may be found in contempt of court under section 708, which can result in fines or jail until they comply.
Spousal Witnesses In Domestic Assault Cases
In domestic assault cases, the complainant is sometimes the spouse of the accused. Under section 4(2) of the Canada Evidence Act, spouses are now competent and compellable witnesses; they can be called to testify even if married to the accused.
However, section 4(3) still protects private marital communications from disclosure without consent.
What If The Complainant Refuses To Cooperate?
When They Attend But Refuse To Answer
If a complainant appears in court but refuses to answer questions, the court can hold them in contempt under section 708. Judges have discretion to fine or jail the witness until they comply.
However, reluctant testimony can weaken credibility. Defence counsel will often use a complainant’s hesitation or hostility on the stand to cast doubt on the reliability of their evidence.
When They Recant Their Statement
Sometimes a complainant testifies but recants their earlier statement to the police. The Crown may try to introduce their earlier statement as prior inconsistent evidence under section 10 of the Canada Evidence Act.
The Supreme Court of Canada in R v B(KG), [1993] 1 SCR 740 allowed prior recorded statements to be admitted as substantive evidence if made under oath or with sufficient reliability safeguards (for example, video-recorded statements).
When They Avoid Coming To Court Entirely
If the complainant ignores a subpoena and fails to attend, the Crown can ask for an adjournment and a warrant to have them brought to court. If they cannot be located or brought in, the Crown may need to withdraw the charges or proceed using any other available evidence, such as 911 calls, photographs, medical records, or eyewitness testimony.
Can The Case Continue Without The Complainant?
Circumstantial Or Independent Evidence
The Crown can sometimes continue a prosecution without the complainant if there is enough other evidence to meet the burden of proof. This could include:
- Eyewitness accounts from bystanders
- Surveillance video showing the incident
- 911 recordings or police body camera footage
- Medical documentation of injuries
- Admissions or statements made by the accused
The Supreme Court in R v Khan, [1990] 2 SCR 531 established that hearsay evidence can be admitted if it is necessary and reliable. This principle allows some limited forms of indirect evidence when the complainant does not testify.
Crown Policy On Proceeding
However, under the Public Prosecution Service of Canada (PPSC) Deskbook, the Crown must have a “reasonable prospect of conviction” before proceeding. If the complainant will not testify and there is little other evidence, prosecutors often withdraw or stay the charge rather than attempt a weak trial.
How An Assault Defence Lawyer Can Use This Situation Strategically
Challenging The Sufficiency Of Evidence
A skilled assault defence lawyer will assess whether the Crown’s remaining evidence can meet the standard of proof beyond a reasonable doubt. If not, they can seek a directed verdict of acquittal at trial where there is no evidence upon which a properly instructed jury could convict, following the test in R v Monteleone, [1987] 2 SCR 154 and R v Charemski, [1998] 1 SCR 679.
At a preliminary inquiry, the lawyer can seek a discharge under section 548 if the Crown’s evidence is too weak to commit the accused to trial.
Protecting The Accused’s Rights
If the Crown attempts to introduce the complainant’s earlier statement, defence counsel can argue it is inadmissible hearsay unless it meets the strict reliability criteria set out in Khelawon and Bradshaw. They can also challenge the voluntariness of any statements attributed to the accused.
Negotiating Alternative Resolutions
When the complainant is unwilling to cooperate, the Crown may be open to resolving the matter without a trial. An experienced defence lawyer can sometimes negotiate for the charges to be withdrawn in exchange for the accused agreeing to a peace bond under section 810 of the Criminal Code, which avoids a criminal conviction while ensuring the matter is resolved.
Key Takeaways For The Accused
- The Crown, not the complainant, controls criminal prosecutions.
- Complainants can be compelled to testify by subpoena.
- Refusing to testify can result in contempt of court.
- The Crown can use other evidence if available, but may withdraw if none exists.
A skilled assault defence lawyer can challenge weak evidence and protect the accused’s rights at every stage.
About Slaferek Law
Slaferek Law is a dedicated criminal defence practice based in Edmonton, Alberta. With extensive experience in defending individuals charged with assault-related offences, the firm provides focused and strategic legal representation designed to protect your rights and reputation.
If you are facing assault charges and need a trusted assault defence lawyer, contact us today to schedule a consultation and get professional legal advice.
