Historical Offences

• Author: Daniel Brown/Jill Witkin
• Pages: 435-470



15

Historical

Oences

I. Overview ................................................ 

II. Former Sexual Oences in the Criminal Code .................. 

III. Procedural Issues ......................................... 

A. The Crown’s Review of the Charging Document ........... 

B. Pre-Charge Delay .................................... 

C. Preliminary Inquiries ................................. 

D. Retrospective Application: Sections , .,

and . ......................................... 

E. The Application of the Charter and the Canadian

Bill of Rights ....................................... 

IV. Evidentiary Issues ......................................... 

A. Date of Oence and Relevant Ages ..................... 

B. Corroboration ...................................... 

C. Delays in Reporting and Complainant Credibility .......... 

D. Adults Testifying About Childhood Memories ............. 

E. Repressed and Recovered Memories .................... 

F. Lost and Destroyed Evidence .......................... 

V. Sentencing Issues ........................................ 

A. Section (i) of the Charter and the Parameters

ofSentencing ....................................... 

B. The Retrospective Application of Ancillary Orders ......... 

C. The Eect of Passage of Time on Sentence ............... 

Appendix . Prior Sexual Oences ......................... 

This chapter was authored by Colleen McKeown.

© [2020] Emond Montgomery Publications. All Rights Reserved.

 Prosecuting and Defending Sexual Oence Cases

I. Overview

The term “historical sexual oence” is used to describe a sexual oence that is

alleged to have occurred sometime in the past. However, due to significant legisla-

tive changes in the last fifty years—including changes to both the substantive of-

fences and particular procedural and evidentiary issues that may arise in historical

prosecutions—the subject warrants special attention.

This chapter focuses on oences that existed at dierent times from 1970 onward.1

Oences prosecuted by indictment have no statutory limitation.2 Therefore, a person

may be charged with an indictable oence that is alleged to have been committed years

or decades earlier. As it is a fundamental principle of justice that an accused must be

tried and punished under the law in force at the time the oence is committed,3 a

historical allegation may result in a charge for an oence that is no longer part of the

Criminal Code.4

While the oence charged must be that which was in force at the time of the

oence, the governing procedural and evidentiary rules will generally be those in force

at the time of the prosecution. This is because the presumption against retrospective

application does not apply to strictly procedural or evidentiary amendments.5

When prosecuting or defending a dated sexual oence allegation, counsel should

keep the following questions in mind:

1. Ages: How old was the accused at the time or over the relevant timespan iden-

tified in the charging document? How old was the complainant?

2. Oence: What are the elements of the historical oence charged?

3. Time periods: Was the oence charged in existence for all relevant time per-

iods in the indictment?

1 Oences that existed prior to this time can be found in older versions of the Criminal Code

(infra note 4). For ease of reference, see online: <https://www.constancebackhouse.ca/filead-

min/website/byyear.htm>.

2 In contrast, summary conviction charges must be laid within 12 months of the oence date, unless

the accused waives the limitation period. See s786(2) of the Criminal Code (infra note 4). This lim-

itation period was increased from 6 months to 12 months by Bill C-75 (infra note 10); the relevant

amendment came into force on September 19, 2019. According to Bill C-75’s transitional provisions,

summary conviction oences committed prior to September 19, 2019 are subject to the previous

six-month limitation period regardless of when a person is charged with that oence.

3 R v Gamble, [1988] 2 SCR 595 at 647; R v Hall, [1993] OJ No 3344 (QL) at para 233 (Ct J (Gen

Div)).

4 RSC 1985, c C-46.

5 R v Dineley, 2012 SCC 58 at paras 10-12, DeschampsJ (writing for the majority): “New legis-

lation that aects substantive rights will be presumed to have only prospective eect unless it

is possible to discern a clear legislative intent that it is to apply retrospectively…. However,

new procedural legislation designed to govern only the manner in which rights are asserted or

enforced does not aect the substance of those rights. Such legislation is presumed to apply

immediately to both pending and future cases” (at para10, citations omitted). See also R v

Bickford, 1989 CanLII 7238, 51 CCC (3d) 181 at 185 (Ont CA).

© [2020] Emond Montgomery Publications. All Rights Reserved.

Chapter  Historical Oences 

4. Constitutionality: Has the oence charged (or related provisions) been consti-

tutionally challenged?

5. Summary/indictable: Can the oence charged be prosecuted by indictment or

is it summary only (in which case a limitation period applies)?

6. Sentencing: How has sentencing for the oence changed over time? Is the

accused entitled to the benefit of a lesser sentencing option?

While there are special challenges that come with prosecuting and defending dated

allegations, many other aspects of counsel’s task remain the same. The rest of this

handbook remains relevant to historical sexual oence prosecutions.

II. Former Sexual Oences in the Criminal Code

In the 1970s, sexual oences included rape (former s143) and indecent assault (for-

mer ss149, 156). Sexual oences committed against children were prosecuted as

gross indecency (former s157), and sexual intercourse with a female under 14 years

of age (former s146(1)) and with a female under 16 years of age (former s146(2)).

Major legislative changes came in 1983 and 1988. On January 4, 1983, Criminal Code

amendments6 took eect that saw the oences of rape and indecent assault repealed

and replaced with the now familiar three-tiered structure of sexual assault oences

that focuses on the seriousness of the oence: sexual assault (formerly s246.1, now

s271), sexual assault causing bodily harm (formerly s246.2, now s272), and aggra-

vated sexual assault (formerly s246.1, now s273). In 1988, in addition to renumbering

the sexual assault provisions, a new set of oences for sexual acts against children

was enacted,7 replacing earlier oences with sexual interference (s151), invitation to

sexual touching (s152), and sexual exploitation (s153). In 2008, the age of consent

was raised from 14 years of age to 16 years of age, resulting in amendments to the

sexual interference and invitation to sexual touching provisions and to the consent

provisions (including redefining the close-in-age exceptions).8 Counsel prosecuting

or defending a historical sexual oence must review the substantive law in eect at

the time the oence was allegedly committed.9

6 An Act to amend the Criminal Code in relation to sexual oences and other oences against the person and

to amend certain other Acts in relation thereto or in consequence thereof, SC 1980-81-82-83, c125.

7 An Act to amend the Criminal Code and the Canada Evidence Act (Sexual Oences), RSC1985,

c19, (3rd Supp).

8 Tackling Violent Crime Act, SC 2008, c6.

9 Criminal Code provisions related to sexual oences as they existed between the years 1892

and 2000 can be found at Constance Backhouse’s online resource, A History of Canadian

Sexual Assault Legislation 1900-2000, online: <http://www.constancebackhouse.ca/filead-

min/website/byyear.htm>. Online versions of the Criminal Code available through the federal

government’s Justice Laws Website (<https://laws-lois.justice.gc.ca/eng/acts/C-46/index

.html>) and through CanLII (<https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/lat-

est/rsc-1985-c-c-46.html>) only go as far back as 2003. Counsel should consider reviewing an

annotated Criminal Code from the relevant time period.

© [2020] Emond Montgomery Publications. All Rights Reserved.