Historical Offences

• Author: Brian H. Greenspan/Vincenzo Rondinelli/Daniel Brown/Jill Witkin
• Pages: 485-526



Historical

Ofences

15

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. The Absence of Avoidant Behaviour and

Complainant Credibility ............................... 

E. Adults Testifying About Childhood Memories ............. 

F. Repressed and Recovered Memories .................... 

G. 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. Evolution of Society’s Understanding of Harm ............ 

D. The Eect of Passage of Time on Sentence ............... 

Appendix . Prior Sexual Oences ......................... 

This chapter was authored by Colleen McKeown.

© 2024 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 legislative

changes since 1970—including changes to both the substantive oences and particu-

lar 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

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 Constance Backhouse’s online resource, A History

of Canadian Sexual Assault Legislation 1900-2000 (last visited 13 February 2024), online:

<https://www.constancebackhouse.ca/fileadmin/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 limitation 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. As a result of these limitation periods, historical oences generally

proceed by indictment; however, defence counsel might consider waiving the limitation period

where proceeding summarily is in the client’s interests. Considerations include earlier record

suspension eligibility and lesser time periods for Sex Oender Information Registration Act, SC

2004, c 10 [SOIRA] registration.

3 RvGamble, [1988] 2 SCR 595 at 647, 1988 CanLII 15; RvHall, [1993] OJ No 3344 (QL) at

para 233, 23 WCB (2d) 204 (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 legislation that aects substantive rights will be presumed to have only prospec-

tive 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Poulin, 2019 SCC 47 at paras 58-59, Martin J (writing for the majority);

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

© 2024 Emond Montgomery Publications. All Rights Reserved.

Chapter  Historical Oences 

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 time span iden-

tified in the charging document? How old was the complainant? If age is an

element of the oence, was the complainant in the relevant age category (e.g.,

under 14) for the whole time span identified?

2. Oence: Was the correct historical oence charged for the relevant oence

date(s)? Where a date range is given, was the historical oence charged in

existence for all relevant time periods? What are the elements of the historical

oence charged?

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

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

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

tutionally challenged?

5. 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 therefore remains relevant to historical sexual oence prosecutions.

II. Former Sexual Offences in the Criminal Code

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

mer ss149 and 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

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

son 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).

© 2024 Emond Montgomery Publications. All Rights Reserved.