Defending a sexual assault allegation can be a lengthy, complex, and emotionally taxing process. Sexual assault is a serious charge under Canadian law, and the penalties upon conviction can be severe. 

In most cases, there is no time limit on when sexual assault charges can be laid, regardless of how long ago the alleged assault took place. If you have been charged with sexual assault, it is important to speak with a criminal lawyer as soon as possible.

Sexual Assault Charges and the Statute of Limitations

The offence of sexual assault is set out in Section 271 of the Criminal Code of Canada.

There are two types of criminal offences in Canada: indictable and summary conviction offences. Summary conviction offences are typically less serious, carry lighter penalties, and are subject to a one-year statute of limitations. Indictable offences are more serious, carry higher penalties, and do not have a statute of limitations.

Sexual assault is classified in the Criminal Code as a “hybrid offence,” meaning that the Crown can choose whether to proceed by summary conviction or indictment. Sexual assault charges are most often prosecuted by indictment, meaning that charges can be laid years or even decades after the alleged incident occurred.

Why is There No Statute of Limitations for Sexual Assault?

As with other indictable offences, there is no time limit on when charges can be laid in response to a sexual assault allegation.

Sexual assault cases are also unique in that it is not uncommon for complainants to wait many years before coming forward. Canadian courts have recognized this reality. Judges have made clear that a delay in reporting does not indicate that a complainant is less believable or that the incident is less likely to have occurred. As a result, so-called “historical” sexual assault cases can still be investigated, charged, and prosecuted.

How Does the Passage of Time Affect a Sexual Assault Case?

Although historical sexual assaults can still be prosecuted, evidence is often limited in these cases. Physical evidence, including DNA evidence, is often no longer available years after an alleged assault has occurred. Similarly, electronic evidence, such as text messages or social media communications between the complainant and the accused, may be inaccessible after many years.

While sexual assaults are rarely witnessed directly, there may be individuals who can provide information about the circumstances surrounding the alleged incident. As time passes, it becomes harder to identify these witnesses or to rely on them to establish timelines or alibis.

Memory is another major factor. The memories of the complainant, the accused, and witnesses are likely to fade over time, making it difficult to establish a precise sequence of events and to corroborate specific details of what occurred.

How is Evidence Assessed in Historical Sexual Assault Cases?

Judges take a common-sense approach when assessing the credibility and reliability of evidence, and juries are instructed to do the same. Judges understand that witnesses may not recall every detail years after an event occurred. For example, a complainant may not remember minor or peripheral details about an event, but that does not mean that they cannot reliably recall whether they consented to sexual activity.

In cases where the events are alleged to have occurred long ago, there will often be less evidence to assist a judge or jury in making their decision. Although the burden is always on the Crown to prove guilt beyond a reasonable doubt, gaps in the evidence can also be a disadvantage to the defence.

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