Historical Sexual Assault Claims in Ontario: Defending Against the Past

By Farid Zamani

Getting charged with a crime is stressful. But facing charges for something that allegedly happened 10, 15, or 20 years ago is a different kind of nightmare. You might feel blindsided. You might not even remember the specific time or place the police are asking about.

In Ontario, and across Canada, there is no statute of limitations for sexual assault. It doesn’t matter if the alleged incident happened last week or in 1990. The police can still lay charges, and the Crown can still prosecute.

These are called “historical” sexual assault cases. They are becoming more common in our courts. For the accused, they present a massive challenge. How do you defend yourself when you can’t remember where you were on a random Tuesday two decades ago? How do you prove your innocence when old text messages, receipts, and witnesses are gone?

The good news is that these cases are also very hard for the Crown to prove. When there is no physical evidence, the case stands or falls on memory. And memory is fragile.

Key Takeaways

• No Time Limit: Sexual assault charges in Canada have no expiration date. You can be charged decades later.
• Memory is the Key: The Crown usually relies entirely on the complainant’s memory. If that memory is shown to be unreliable, there is no case.
• Credibility vs. Reliability: A witness can be honest but still be wrong. Your lawyer’s job is to show that their memory is mistaken.
• Lost Evidence: The fact that you lost old calendars or receipts (lost means of defence) can sometimes be used to your advantage.
• Reasonable Doubt: You don’t need to prove the event didn’t happen. You only need to raise a reasonable doubt.

Understanding Historical Sexual Assault Allegations

When lawyers say “historical,” we just mean there has been a long delay between the alleged incident and the police charge.

In a standard, recent case, police look for physical proof. They might have DNA, surveillance video, or angry text messages sent right after the event. In a historical case, that stuff usually doesn’t exist.

Instead, the entire case rests on the testimony of the complainant. They go into the witness box and tell their story. The judge or jury has to decide if they believe it beyond a reasonable doubt.

This sounds scary because it feels like “your word against theirs.” But in criminal law, it’s not that simple. The Crown has a heavy burden. They have to prove that the events happened exactly as described, despite the passing of years.

The Problem with Memory

The biggest factor in these trials is memory.

Human memory isn’t a video camera. We don’t record events and play them back perfectly. Memory is reconstructive. Every time you think about an old memory, your brain rebuilds it. Over 10 or 20 years, bits and pieces get added, removed, or changed.

External things can change memories too. Maybe the complainant read a news story about a similar event. Maybe they spoke to friends who “reminded” them of details. Maybe they went to therapy where they reconstructed past trauma.

This is where a good defence lawyer does the work. We distinguish between credibility and reliability.

• Credibility: Is the person telling the truth as they see it? Are they lying?
• Reliability: Is their memory accurate?

A complainant can be a very credible person. They might be crying in the witness box. They might genuinely believe everything they are saying. But if their memory is unreliable, if they have the dates wrong, the location wrong, or the details mixed up, then the Crown hasn’t proved their case.

We look for “flashbulb” memories. This is when someone claims to remember the assault in high-definition detail but can’t remember anything else about that time. For example, they recall exactly what was said during the alleged assault, but they don’t remember how they got to the house, who else was there, or what the room looked like. These gaps matter. They show that the memory might be reconstructed rather than recalled.

The W.(D.) Principle: Your Safety Net

You might be worried that if the judge believes the complainant, you are automatically guilty. That is not how it works in Canada.

There is a famous Supreme Court case called R. v. W.(D.). It sets out the rules for how judges must decide cases where two people tell different stories. It is the most important tool in your defence.

The rule has three parts:

1. If the judge believes you: They must acquit you (find you not guilty).
2. If the judge doesn’t believe you, but isn’t sure: If your story leaves them with a reasonable doubt, they must acquit you.
3. If the judge rejects your story entirely: They still can’t convict you unless the Crown’s evidence alone proves guilt beyond a reasonable doubt.

This is vital. It means you don’t have to prove you are innocent. You don’t have to prove exactly where you were on that night in 2005. You just have to show that the Crown’s version of events has holes in it. If there is doubt, there is no conviction.

“Lost Means of Defence”

One of the hardest parts of being charged historically is that you can’t defend yourself the way you would today.

If someone said you assaulted them last Friday, you could pull up your Google Maps history. You could show your credit card bill proving you were at a restaurant. You could check your texts.

If the allegation is from 1998, you probably don’t have those records. Your old flip phone is gone. Your paper diaries are thrown out. Witnesses might have moved away or passed away.

We call this “lost means of defence.”

While it is frustrating, we can use this in court. We can argue that the delay has prejudiced you. It’s unfair to expect you to have an alibi for a day twenty years ago.

In extreme cases, if the delay is unexplained and has destroyed your ability to have a fair trial (like if a key witness died), we can bring an application to stay the charges. This is an abuse of process argument under the Charter of Rights and Freedoms. It’s a high bar, but we always look into it.

How We Defend You

At Zamani Law, we don’t guess. We have a robust strategy for these cases. Since we usually don’t have DNA or video, we look for collateral evidence. This means evidence that doesn’t prove the assault directly, but proves the context was wrong.

1. Checking the Timeline

We dig into the history. We look at school records, employment records, and housing records.

• Does the complainant say this happened in your basement apartment in 2002? We check property records. Maybe you didn’t move there until 2004.
• Do they say it happened after high school football practice? We check school yearbooks and schedules. Maybe there was no team that year.

Small facts can crumble a big story. If the timeline doesn’t fit the physical records, the reliability of the whole allegation takes a hit.

2. Third-Party Records (Section 278)

Often, the most important evidence is in the complainant’s own history. In the years since the alleged event, they may have seen doctors, therapists, or counsellors.

There is a section of the Criminal Code (Section 278) that allows us to ask the judge for permission to see these records. It isn’t easy—privacy laws are strict—but it can be done if we show it’s likely relevant.

Why does this matter? Imagine the complainant told a therapist ten years ago that they were never assaulted. Or maybe they described the assault but said it was done by someone else. These inconsistencies are massive. They go directly to reliability.

3. Motive and Collusion

We have to be careful here. We never want to look like we are attacking the victim just to be mean. But we do need to understand why this is coming up now.

• Is there a messy divorce happening?
• Is there a civil lawsuit where they are asking for money?
• If there are multiple accusers, do they know each other? Did they talk about their stories before going to police?

When witnesses talk to each other, their memories can merge. This is called collusion. It might not even be on purpose, but it ruins the independence of their evidence.

The “Post-Event Conduct” Trap

In court, the Crown will often say, “The victim was depressed and angry for years. That proves the trauma happened.”

But we also look at how the complainant acted toward you. Did they keep dating you? Did they send you Christmas cards for five years after? Did they go on trips with you?

The law says there is no “right” way for a victim to behave. We can’t say, “She didn’t scream, so it wasn’t assault.” That is a myth.

However, we can use their behavior to test the logic of their story. If they claim they were terrified of you, but we have photos of them happily hanging out with you a week later, it creates a question. It creates doubt. It helps the judge see that the relationship might have been consensual, or at least that the memory of it being “terrifying” might be wrong.

Why You Need a Lawyer

You cannot handle this alone. The rules for sexual assault trials are incredibly strict.

There are rules about what questions you can ask. There are rules about using the complainant’s past sexual history (usually, you can’t). If you try to do this yourself, or hire a lawyer who doesn’t know criminal law well, you will get shut down by the judge.

You need someone who knows the Criminal Code and the rules of evidence. You need someone who can cross-examine a witness firmly but respectfully. If you go too hard, the jury hates you. If you go too soft, you don’t get the answers you need. It is a strong balancing act.

What to Do Next

If police contact you about a historical allegation:

1. Stop.
2. Do not give a statement. Police are trained to get you to talk. They might say, “We just want to clear this up.” They might say, “If you’re innocent, just tell us your side.” Do not fall for it. You cannot talk your way out of a charge. You will only give them ammunition to use against you later.
3. Call a lawyer.
   

Historical sexual assault cases are winnable. The burden of proof is high, and memory is weak. But you need to start building your defence immediately.

Your past is on trial, but your future is what matters.

If you are facing sexual assault allegations in Ontario, contact the team at Zamani Law. Led by criminal lawyer Farid Zamani, we know how to navigate these complex cases. We will review the disclosure, find the inconsistencies, and fight to protect your reputation.

References

1. https://laws-lois.justice.gc.ca/eng/acts/C-46/section-278.1.html
2. https://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr05_5/p5.html
3. https://www.scc-csc.ca/home-accueil/

About the Author

Farid Zamani is the founder of Zamani Law, a GTA-based criminal defence firm committed to protecting clients’ rights with professionalism and compassion. After earning his law degree at Buckingham Law School in the U.K., Farid worked at Daley Byer Criminal Law for 12 years before launching his own firm. Farid is skilled in all areas of criminal law and has built a strong reputation for his adeptness in navigating complex cases and achieving successful outcomes. Dedicated to the community, Farid is the co-founder of the non-profit Children Without Borders and has contributed to many other charitable organizations.