Sexual Offences

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 95565)

Types of Evidence

See also: Sentencing for Sexual Offences
Timing of Initial Disclosure

The Crown may elicit hearsay evidence of the initial disclosure of the allegations in order to give context and narrative to the offence.[1]

  1. ↑ Traditional_Exceptions_to_Hearsay#Narrative_and_Context

Prior History

See also: Prior Sexual History
Credibility

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.[1]

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."[2]

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.[3]

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.[4]

  1. ↑ e.g. see R v Gill2011 ONCJ 345(*no CanLII links) , at para 37
  2. ↑ R v DD, 2005 CanLII 42472 (ON CA), 203 CCC (3d) 6, per MacFarland JA, at para 20 ("In my view, the trial judge erred in the analysis used to exclude this evidence. It is clear from the cases cited that the history of the relationship between the complainant and the accused is relevant in terms of providing background and context for the proper consideration of the charges before the court. The fact that this conduct occurred in 1994, some 8 years prior to the incident which gave rise to the charges, is a factor, but a minor one. The evidence was part of the history of the relationship which is relevant to the issue before the court.") - charge of criminal harassment
  3. ↑ R v Krushel, 2000 CanLII 3780 (ON CA), 142 CCC (3d) 1, per Catzman JA, at paras 16 to 17
    DD, supra, at para 16
  4. ↑ DD, supra, at para 16

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.[1] There is no fixed expectation of how victims of trauma will behave.[2]

The lack of avoidant behaviour says nothing of the truthfulness of the allegation.[3]

Where probative evidence is tied to inferences drawn about the expectations or assumptions of the complainant's likelihood of avoiding the culprit, the rule against stereotypical credibility assessment may be breached.[4] This is particularly true for children.[5]

  1. ↑ R v ARJD, 2017 ABCA 237 (CanLII), 353 CCC (3d) 1, 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)
  2. ↑ R v D(D), 2000 SCC 43 (CanLII), [2000] 2 SCR 275, per Major J, at para 65
  3. ↑ R v ARD, 2017 ABCA 237 (CanLII), 353 CCC (3d) 1, at para 39, per curiam (2:1) ("The more important question is what, if anything, can evidence of a lack of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation? The answer is simple—nothing.")
  4. ↑ ARD, supra, at para 62
  5. ↑ ARD, supra, at para 28
    D(D), supra, at para 63

Prior Consistent Statements

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.[1]

Generally, it is permissible for a complainant to indicate that she reported the matter to an authority or friend.[2]

Evidence of Text Messages

The "conversational nature" of the communication between the accused and complainant has probative value and can be used for assessing credibility.[3] Inferences from content and context of messages are permissible.[4]

  1. ↑ e.g. R v RJW, 2014 CanLII 24988 (NLSCTD), per Halley J, at paras 40 to 45
  2. ↑ R v Ay, 1994 CanLII 8749 (BC CA), 93 CCC (3d) 456, per Lambert JA
  3. ↑ R v Langan, 2019 BCCA 467 (CanLII), per Bauman JA at para 97 ("The messages can also be seen to have probative value based on their conversational nature. This distinguishes them from the statements typically excluded under the rule against prior consistent statements. Unlike a police statement, the complainant’s texts were interacting with the accused’s texts and could thus be assessed for credibility in that context. ") adopted in 2020 SCC 33 (CanLII)
  4. ↑ Langan, ibid. at para 93 ("Inferences arising from the content and context of the prior consistent statement are permissible—“[w]here logic yields inferences based on the fact statements are made and the circumstances in which they were made there is nothing improper in drawing them."")

Experts

Drug-based Assault Cases

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.[1]

  1. ↑ R v Fleming, 2007 ONCA 808 (CanLII), OJ No 4562, per curiam

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.

Historical offences

156 No person shall be convicted of any sexual offence under this Act as it read from time to time before January 4, 1983 unless the conduct alleged would be an offence under this Act if it occurred on the day on which the charge was laid.

R.S., 1985, c. C-46, s. 156; R.S., 1985, c. 19 (3rd Supp.), s. 2; 2019, c. 25, s. 53.

– CCC (CanLII), (DOJ)

Note up: 156

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

See also: Consent#Vitiating Consent by Fraud and Aggravated Sexual Assault (Offence)

Non-disclosure of the risk of HIV infection can have "deadly consequences" and so warrants a "broader view of fraud vitiating consent."[1] It is "indisputably serious and life-endangering" even when controlled by medication.[2]

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.[3]

Due to the serious consequences of infection of HIV there is no real distinction between non-disclosure and lies.[4]

Whether or not actual infection occurs does not remove criminal liability.[5]

There exist related cases of convictions for sexual assault due to non-disclosure of herpes.[6]

  1. ↑ R v Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 SCR 371, per Cory J
  2. ↑ R v Mabior, 2012 SCC 47 (CanLII), [2012] 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 ")
  3. ↑ Cuerrier, supra, at para 128 ("The second requirement of fraud is that the dishonesty result in deprivation, which may consist of actual harm or simply a risk of harm. Yet it cannot be any trivial harm or risk of harm that will satisfy this requirement in sexual assault cases where the activity would have been consensual if the consent had not been obtained by fraud. For example, the risk of minor scratches or of catching cold would not suffice to establish deprivation. What then should be required? In my view, the Crown will have to establish that the dishonest act (either falsehoods or failure to disclose) had the effect of exposing the person consenting to a significant risk of serious bodily harm. The risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that test. In this case the complainants were exposed to a significant risk of serious harm to their health. Indeed their very survival was placed in jeopardy.")
  4. ↑ Cuerrier, supra, at para 126 ("The second requirement of fraud is that the dishonesty result in deprivation, which may consist of actual harm or simply a risk of harm. Yet it cannot be any trivial harm or risk of harm that will satisfy this requirement in sexual assault cases where the activity would have been consensual if the consent had not been obtained by fraud. For example, the risk of minor scratches or of catching cold would not suffice to establish deprivation. What then should be required? In my view, the Crown will have to establish that the dishonest act (either falsehoods or failure to disclose) had the effect of exposing the person consenting to a significant risk of serious bodily harm. The risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that test. In this case the complainants were exposed to a significant risk of serious harm to their health. Indeed their very survival was placed in jeopardy.")
  5. ↑ e.g. Cuerrier, supra
    R v Felix, 2013 ONCA 415 (CanLII), 298 CCC (3d) 121, per Cronk JA, at para 71 ("The appellant’s actions were callous and reflected a significant degree of indifference to the consequences of his actions for two women whom the trial judge found to be vulnerable, each in their own way. The fact that neither complainant actually contracted HIV is irrelevant. As Binnie J. aptly observed in R v Williams, 2003 SCC 41, [2003] 2 SCR 134, at para. 19, “[t]he exposure of an unwitting sexual partner to the risk of HIV infection, through deliberate deception, is the stuff of nightmares.” The appellant’s multiple convictions for aggravated sexual assault, as well as breaches of probation, called out for a lengthy term of imprisonment.")
  6. ↑ 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.[1]

See Related:

  1. ↑ R v Heywood, 1992 CanLII 6008 (BC CA), 77 CCC (3d) 502, per Hutcheon JA, at para 54 citing the Badgey Report

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.[1]

"Brazen" Conduct

Allegations of "brazen" conduct on the part of the accused is not necessarily evidence of implausibility. Courts "continuously see brazenness or opportunism" when it comes to child sexual offences.[2]

  1. ↑ R v LG, [2001] 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.")
  2. ↑ R v BJL, 2023 NSSC 123 (CanLII) (working hyperlinks pending), per Jamieson J at para 141
    R v SGH, 2023 ABKB 39 (CanLII) (working hyperlinks pending), per Mandziuk J, at para 70
    R v BW, 2017 CanLII 14508 (ON SC) (working hyperlinks pending)
    R v H(TR), 2002 CanLII 44895 (ON CA) (working hyperlinks pending)
    R v FC, 2018 ONSC 561 (CanLII) (working hyperlinks pending)

Online Sexual Offences

Human Trafficking and Sexual Services Offences

Relationship between Pimp and Prostitute

It has been recognized that the relationship between a pimp and prostitute is cohesive and exploitative.[1]

Youth Prostitution

Juvenile prostitution has been recognized for its horrors and evils associated with it.[2]

  1. ↑ Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.), 1990 CanLII 105 (SCC), [1990] 1 SCR 1123, per Dickson CJ, at para 2 (in contemporary prostitution there exists "the exploitation, degradation and subordination of women.")
    R v Downey and Reynolds, 1992 CanLII 109 (SCC), 72 CCC (3d) 1, per Cory J, at para 40 (a pimp “lives parasitically off a prostitute’s earnings”)
    R v Miller, [1997] OJ No 3911 (OCJ)(*no CanLII links) , per Hill J ("The relationship between pimp and prostitute is almost inevitably inherently coercive and exploitative. The degrading domination of the pimp perpetuates the prostitute's lack of self-esteem and self-worth. Street pimps promulgate violence as their primary control mechanism. Other pimps, particularly those administering adult entertainment or escort service operations, employ more subtle pressure including preying upon the economic dependency of the prostitutes employed. In other words, the demonstration of domination varies from case to case.")
  2. ↑ e.g. see sourced cited in R v Burton, 2013 ONSC 3021 (CanLII), per Trotter J, at paras 10, 11

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)

Reasons for Judgement

Reasons

278.98 (1) In proceedings in respect of an offence under section 151 [sexual interference], 152 [invitation to sexual touching], 153 [sexual exploitation], 153.1 [sexual exploitation of disabled] or 155 [incest], subsection 160(2) [compelling bestiality] or (3) [bestiality in presence of or by child] or section 170 [parent or guardian procuring sexual activity], 171 [householder permitting prohibited sexual activity], 172 [corrupting children], 173 [Indecent acts], 271 [sexual assault], 272 or 273 , the judge shall provide reasons for a decision that a person is

(a) acquitted;
(b) found guilty;
(c) discharged, after having been found guilty;
(d) found not criminally responsible on account of mental disorder; or
(e) found unfit to stand trial.
Historical offences

(2) Subsection (1) also applies in proceedings for any offence under this Act, as it read from time to time before the day on which this section comes into force, if the conduct alleged would be an offence referred to in subsection (1) if it occurred on or after that day.

Record of reasons

(3) The reasons shall be entered in the record of the proceedings or, if the proceedings are not recorded, shall be provided in writing.

Proceedings before judge

(4) This section applies only in proceedings before a judge without a jury.

2021, c. 8, s. 4.

– CCC (CanLII), (DOJ)

Note up: 278.98(1), (2), (3), and (4)

Statutory Rules for Sexual Assault-based Offences

Corroboration and Privilege

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.[1]

Applicable Offences

Offences listed in s. 274 consist of:

No Spousal Immunity
Spouse may be charged

278 A husband or wife may be charged with an offence under section 271 [sexual assault], 272 [sexual assault with a weapon or causing bodily harm] or 273 [aggravated sexual assault] in respect of his or her spouse, whether or not the spouses were living together at the time the activity that forms the subject-matter of the charge occurred.
1980-81-82-83, c. 125, s. 19.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 278

  1. ↑ FH v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41, per Rothstein J, at para 80


See Also

Other links


v • e
 
Sexual Offences
Offences
v • e
 
Proving Complex Criminal Offences
Retrieved from "https://criminalnotebook.ca/index.php?title=Sexual_Offences&oldid=95565"