Sexual Assault-based Offences
It is not always necessary that the Crown call a toxicologist or any other type of forensic expert to prove that the complainant was drugged using a date-rape drug.
For certain listed sexual offences, s. 274 prohibits the need for any corroboration of evidence. However, it remains a useful practice to consider further corroboration where applicable.
- Applicable Offences
Offences listed in s. 274 consist of:
- s. 151 (sexual interference)
- s. 152 (invitation to sexual touching),
- s. 153 (sexual exploitation),
- s. 153.1 (sexual exploitation of person with disability),
- s. 155 (incest),
- s. 159 (anal intercourse),
- s. 160 (bestiality),
- s. 170 (parent/guardian procuring sexual activity),
- s. 171 (householder permitting sexual activity),
- s. 172 (corrupting child),
- s. 173 (indecent acts),
- s. 271 (sexual assault),
- s. 272 (sexual assault with a weapon or causing bodily harm),
- s. 273 (aggravated sexual assault),
- s. 286.1 (obtaining sex services),
- s. 286.2 (material benefit from sex services) or
- s. 286.3 (procuring sex services)
- No Spousal Immunity
- Prior Consistent Statements
Generally, it is permissible for a complainant to indicate that she reported the matter to an authority or friend.
Prior consistent statements are often used in the presentation of the Crown evidence under the narrative exception in order to help understand how and when the story was disclosed and also to rebut recent fabrication.
Complainant's prior sexual history can be of relevance to the case in many circumstances.
It could make sense to consider motives to fabricate in order to preserve the victim's relationship with her parents.
- Evidence of Prior Relationship
The history of the relationship between the accused and the alleged victim in an offence of violence is "relevant in terms of providing background and context for a proper consideration of the charges before the court".
The accused's prior conduct towards the complainant may be admitted in to evidence as establishing the state of mind of the alleged victim during the period of time covered by the charges and to establish the reasonableness of the alleged victim's fear for safety.
The evidence also provides context to assess whether the accused would have been aware or reckless as to the consequences that the conduct would have had on the alleged victim.
- Post-Offence Conduct
It is impermissible to evaluate credibility of a complainant on the fact that they did not engage in avoidant behaviour after the incident.
- R v Ay, 1994 CanLII 8749 (BC CA), per Lambert JA
e.g. R v RJW, 2014 CanLII 24988 (NL SCTD), per Halley J, at paras 40 to 45
e.g. see R v Gill, 2011 ONCJ 345(*no CanLII links)
, at para 37
R v DD, 2005 CanLII 42472 (ON CA), per MacFarland JA, at para 20 - charge of criminal harassment
R v Krushel, 2000 CanLII 3780 (ON CA), per Catzman JA, at paras 16 to 17
DD, supra, at para 16
DD, supra, at para 16
- R v ARJD, 2017 ABCA 237 (CanLII), per curiam (2:1), at para 43 ("...assessment of the complainant's credibility stems from his impermissible reliance on a myth or stereotype (masquerading as logic and common sense) about how a sexual assault complainant, in general and in this case, is assumed or expected to behave post-sexual assault(s). ...the trial judge's reliance on his own "logic and common-sense" about how humans react following sexual assault, is itself highly questionable as to relevance and reliability.") - aff'd at 2018 SCC 6 (CanLII), per Wagner CJ (7:0)
Historical Sexual Offences
Certain issues pervade prosecutions of historical sexual offences.
The fixing of the date of offence will often be an issue due to the witnesses' faded memories. The precision of the date is not necessarily an essential element. (see Form and Content of Charges and Amendments to Charges)
The evidence of adults testifying to events occurring while they are children are treated differently than normal adult testimony. (see Credibility and Reliability of Child Witnesses)
- 1983 Offences and Older
Section 156 prohibits the prosecution of offences committed prior to January 4, 1983, unless the offence is in the Code at the time the charges were laid.
- Age of Accused
Where the age of the accused at the time of the offence is not clear, s. 16 of the YCJA addresses the possibility of the accused being a youth.
HIV Infection Cases
Non-disclosure of the risk of HIV infection can have "deadly consequences" and so warrants a "broader view of fraud vitiating consent". It is "indisputably serious and life-endangering" even when controlled by medication.
The Cuerrier test requiring a dishonest act that has "the effect of exposing the person consenting to a significant risk of serious bodily harm" is satisfied by the risk of HIV infection as it puts the victim's "very survival" at risk.
Due to the serious consequences of infection of HIV there is no real distinction between non-disclosure and lies.
Whether or not actual infection occurs does not remove criminal liability.
There exist related cases of convictions for sexual assault due to non-disclosure of herpes.
- R v Cuerrier, 1998 CanLII 796 (SCC),  2 SCR 371, per Cory J
- R v Mabior, 2012 SCC 47 (CanLII),  2 SCR 584, per McLachlin CJ ("HIV is indisputably serious and life-endangering. Although it can be controlled by medication, HIV remains an incurable chronic infection that, if untreated, can result in death ")
- Cuerrier, supra, at para 128
- Cuerrier, supra, at para 126
e.g. Cuerrier, supra
R v Felix, 2013 ONCA 415 (CanLII), per Cronk JA, at para 71
- e.g. R v JH, 2012 ONCJ 753 (CanLII), per M Green J
Sexual Offences Against Young Persons
A high proportion of pedophiles will progress from minor sexual offences against children to major offences against children. There is roughly a 25% recidivism rate.
Childhood Sexual Assault
Evidence of "delayed disclosure, incremental disclosure, false memory, recantation and continued association with the abuser" will not necessarily be evidence going to the allegations being false or true.
- R v LG,  OJ No 2089(*no CanLII links) , per Hambly J - may require expert evidence ("The features of delayed disclosure, incremental disclosure, false memory, recantation and continued association with the abuser etc., that are found in the evidence of both [complainants] clearly do not mean that the allegations are false. I accept Doctor Jaffee's evidence that these features are not unusual in victims of childhood sexual assault. Equally, they are not hallmarks of truth ... They are as consistent with the allegations being false as they are with the allegations being true.")
Online Sexual Offences
Juvenile prostitution has been recognized for its horrors and evils associated with it.
Repealed Sexual Offences
The following sexual offences have since been repealed.
- Rape (abolished 1982)
- Anal intercourse, Buggery (abolished, RSC 1985, c.19 (3rd Supp), s.1)
- Attempted Carnal Knowledge of Girl Under Fourteen (abolished in 1953)
- Communicating venereal disease (abolished 1985)
- Seduction under promise of marriage (abolished 1987)