Should I Lay A Countercharge?

I often have clients who retain our law firm and they might be charged with an assault or a basic domestic assault and they say to me, “Mike, would it be beneficial for me to lay a counter charge? It was actually my wife or the husband or the guy in the bar who was the aggressor. He’s the one or she’s the one that actually assaulted me and I want to lay a counter charge. Will that be helpful?” Well, it depends on the situation. Like anything in criminal law, everything depends on the facts of any given case.

Let’s take a domestic assault case, for example. In a domestic assault case, it’s probably useless to lay a counter charge. The Crown is probably not going to withdraw the charge against you or mutually withdraw the charge if you have laid a counter charge.  The problem with laying a counter charge is that if you want to head to trial, now you have provided the Crown with your client’s statement.  The Crown will then unfortunately know exactly what you are going to say to defend yourself on the witness stand, basically word for word.  This will allow the Crown to be fully prepared for what you are going to say and they will have a better chance of securing a conviction.  If there are inconsistencies between your testimony at trial and your detailed witness statement, the Crown will be able to highlight the inconsistencies and attack your credibility.  For this reason, it is not a good idea to lay a counter charge in a domestic assault case.  So I am never a fan of laying a counter charge in a domestic assault case. 

Are there some other narrow issues or factual circumstances where it might be beneficial to lay a counter charge? Well, I can give you one example that I have used to good effect a few times in my career: if there is a bar fight and there are minimal injuries, in that case the Crown might be inclined to withdraw a charge if both sides want to mutually withdraw the charge. So by laying a counter charge, you are now putting pressure on the other side because they will also face the same charges, so they will hopefully think, “Oh my God, I have to retain a lawyer. It costs legal fees. I could wind up with a criminal record.”  In this narrow case, the Crown might consider withdrawing the charge where the other alleged victim tells the Crown they don’t want to go through with the charges, So I’ve seen that work and I’ve done that to good effect on more than a few occasions in my career. However, I am not a big fan of it in other situations because if there are injuries to any extent, the Crown is probably not going to withdraw the charges because they want it to play out in court. It’s only on very minor cases involving no injuries, that I have seen it work quite frankly and even then it doesn’t work all the time.  Of course, the problem is that if you lay a counter charge and it does not result in your charges being withdrawn, you have then lost an important strategic advantage because you have given the Crown full disclosure of your defence.  They can use your written or video witness statement to assist them to challenge and attack you during cross-examination.  In other words, you have to strategically think very carefully before laying a counter charge because it can back fire on you.

By the way, what a counter charge means is that your client would not go to the police to lay the charge, but they would go in front of a Justice of the Peace to lay what’s called a “privately laid information.”  If the Justice of the Peace accepts your version of events and determines there are reasonable grounds to lay a criminal charge, they will then lay a charge against the other person.  The other person would then either be arrested or summonsed to court to face the same basic charge that you are facing.

So there you have it.  It’s a loaded question. It can work in very narrow factual circumstances and usually it does not work for many types of case. We have to assess your case very carefully before we make a decision to lay a counter charge.