I’m often asked whether a victim of sexual assault is allowed to go to the Crown Attorney and say, “Look, I really don’t want to proceed with this charge.” It’s a really loaded question to answer and it really breaks down to this: first of all, for any crime including sexual assault, our Canadian criminal court system, really considers a victim to be a mere witness to a crime. Yes, they are a victim and have certain rights, but ultimately the Crown Attorney is in charge of whether the prosecution goes forward.
So, for example, if a victim tells the prosecutor, “Look, I’m just uncomfortable with this charge going to court and having to testify.” The crown would ask them, “Well, are you able to testify?” and if the answer is yes, the Crown Attorney would probably not drop the charge. A sexual assault victim’s reluctance or discomfort about the prospect of testifying at the accused’s trial needs to rise to a level where the person has medical evidence that it’s really going to be psychologically damaging or impossible for them to testify. They just can’t go through with testifying for various reasons which would seriously compromise their mental health. The Crown Attorney might consider withdrawing the charge, for example, where there is a cumulative combination of factors such as: they are too nervous; they are too devastated; the thought of testifying is ruining their life essentially and they are experiencing so much stress and anxiety that they simply are not able to testify.So that is the answer to this question. It really depends on the situation, but there are many cases where a victim might tell the Crown that they want the charges to be withdrawn, but in the vast majority of those cases the Crown will decide to proceed despite the wishes of the victim. There are serious criminal cases such as a sexual assault where there is potential for psychological damage if the complainant is required to testify and the Crown may very well decide to withdraw the charges. I have been involved in many cases in my career where the victim was ultimately not capable of testifying for valid personal reasons and the Crown dropped the charges. So, this is the short answer to the question whether a victim of sexual assault is in charge of the decision to withdraw a sexual assault charge.