Facing a charge of historical sexual assault is a life-altering event. In New Brunswick, these historical sexual assault allegations often surface decades after the alleged incident occurred. You may feel blindsided by an arrest for something that supposedly happened in the 1970s, 80s, or 90s.
It is a common misconception that there is a “statute of limitations” for sexual offences in Canada. Under the Criminal Code, there is no time limit for the Crown to lay charges for indictable offences involving sexual touching or rape. Even if the evidence is decades old, the New Brunswick Public Prosecution Services can move forward with a prosecution.
This guide explains how the New Brunswick legal system handles these sensitive historical sexual assault cases. We will look at everything from the initial police interaction to the strict no-contact conditions often imposed during bail.
Understanding the Charge of Historical Sexual Assault
In legal terms, “historical” simply means the alleged offence happened a long time ago. The law that applies to your case is the law that was in effect at the time of the alleged incident.
The Evolution of the Criminal Code
If the allegations date back to the 1970s, you might be charged with “indecent assault” or “rape.” These terms were replaced in 1983 by the modern “sexual assault” framework. However, the definitions of consent and the available defences will be viewed through the lens of the era when the event allegedly took place.
The Role of Physical Evidence
In modern cases, DNA and forensic kits are standard. In historical sexual assault cases, there is rarely any physical evidence. The Crown’s case usually relies entirely on the “viva voce” (oral) testimony of the complainant. In a historical sexual assault case, this makes the credibility and reliability of the witness the central battleground of your defence.
The Arrest Process in New Brunswick
If the RCMP or a municipal force like the Saint John Police Service contacts you, it is often because a historical sexual assault complaint has been filed.
Voluntarily Turning Yourself In
In many historical sexual assault cases, the police may not perform a “hard arrest” at your home. Instead, an investigator may call you to “come down to the station to discuss a matter.” The police are trained in the “Reid Technique” to elicit confessions, even in cases where the accused believes they are just “clearing the air.” Protect yourself by remembering a few simple rules:
- Do not go alone.
- Do not provide a statement.
- Do not try to “clear the air” without a lawyer present.
Your Right to Counsel
Under the Charter of Rights and Freedoms, you have the right to speak to a lawyer immediately upon arrest or detention. In New Brunswick, if you cannot afford a lawyer, you will be provided with the number for Duty Counsel through Legal Aid NB. However, for a charge as serious as sexual assault, having a private defence team ready is vital.
Bail and Release Conditions in NB Courts
After an arrest, the next step is the bail hearing (judicial interim release). In New Brunswick, the Crown Prosecutor often seeks strict conditions to ensure the safety of the complainant and the public. The judge will decide if you can be released based on two main grounds:
- Primary Ground: Will you show up for your court dates at the Moncton, Fredericton, or Saint John Law Courts?
- Secondary Ground: Is there a substantial likelihood you will commit another offence or interfere with the administration of justice?
Common Release Conditions
If you are granted bail, you will likely be under a “Release Order” with several conditions:
- No Contact: You must have no communication, direct or indirect, with the complainant or specific witnesses.
- Geographic Restrictions: You may be barred from going within a certain distance (usually 100 to 500 metres) of the complainant’s home or workplace.
- Firearms Prohibition: You will likely be ordered to surrender any firearms and your Possession and Acquisition Licence (PAL).
- Reporting: You may have to report to a probation officer or the police station on a weekly basis.
The Strict “No Contact” Rule
A no-contact order is one of the most difficult conditions to manage in historical sexual assault cases. Often, the complainant is a former family member or a childhood acquaintance.
Indirect Contact is Still a Breach
“Indirect contact” means you cannot send a message through a third party. You cannot ask a sibling, “Tell her I’m sorry this is happening.” Doing so is a separate criminal offence under Section 145 of the Criminal Code (Failure to Comply).
Social Media and Digital Footprints
In the modern age, “contact” includes liking a Facebook post, viewing a LinkedIn profile (which notifies the user), or sending an “accidental” text. In New Brunswick, the Crown takes breaches of no-contact orders very seriously. A single “accidental” text could result in your bail being revoked, meaning you stay in jail until your trial.
The Role of Disclosure in New Brunswick Prosecutions
One of the most critical stages in defending a historical sexual assault charge in New Brunswick is the “disclosure” process. Under the Public Prosecutions Operational Manual, Crown Prosecutors have a legal duty to provide the defence with all relevant evidence gathered during the investigation.
What is in a Disclosure Package?
In a historical sexual assault case, the disclosure package is your window into the Crown’s case. It typically includes:
- The “K-Video” or Recorded Statement: This is the initial interview between the complainant and the police (often the RCMP or a local force like the Kennebecasis Regional Police).
- Investigator’s Notes: Handwritten or digital notes from every officer who touched the file.
- Occurrence Reports: The internal police summary of how the investigation began.
- Third-Party Records: If the Crown intends to use them, these could include school records or medical documents from the time of the alleged offence.
The Challenge of Lost Evidence
In historical sexual assault cases, the passage of time often means that “potentially exculpatory” evidence is missing. In New Brunswick, if the Crown or police have lost evidence through negligence—such as destroyed notes or missing physical exhibits—your lawyer may bring a Charter application under Section 7. This can sometimes lead to a “stay of proceedings,” which effectively stops the trial if your right to a fair trial has been compromised.
Evidence and Trial Procedures in NB Courts
Trials for historical sexual assault offences in New Brunswick are governed by specific rules of evidence designed to protect the integrity of the process while ensuring the accused can still make a “full answer and defence.”
The Abolition of the “Recent Complaint” Rule
Historically, if a complainant did not report immediately, the court could draw a negative inference. This is no longer the case. Under Canadian law, a delay in reporting a historical sexual assault cannot be used on its own to discredit a witness. The judge must look at the reasons for the delay—such as fear, trauma, or the age of the complainant at the time.
Section 276: The “Rape Shield” Law
You cannot bring up a complainant’s sexual history to suggest they are “more likely” to have consented or are “less worthy” of belief. In New Brunswick, if you want to introduce evidence of the complainant’s past sexual activity, your lawyer must file a formal application under Section 276 of the Criminal Code. This leads to a “voir dire” (a trial within a trial) where a judge decides if the evidence is relevant to your specific defence.
Expert Testimony
In New Brunswick, the Crown may call expert witnesses to explain “typical” complainant behaviour. They may testify that it is common for people who report sexual offences to delay disclosure or remain in contact with an accused. As your defence, we often counter this by highlighting specific, objective inconsistencies in the evidence.
Navigating a No-Contact Order in Small Communities
In a province with many small towns and close-knit communities—from the Miramichi to the Acadian Peninsula—a no-contact order can be a logistical nightmare.
Indirect Contact via Social Media
Many people do not realize that “tagging” someone on Facebook or Instagram can constitute a breach of a no-contact order. In New Brunswick, the systems used by police make it easy for them to track digital interactions. A single “like” on a complainant’s photo could lead to an arrest for breaching your release conditions.
Handling Accidental Encounters
If you live in a small community like Sussex or Oromocto, you may run into the complainant at a grocery store or a community event. New Brunswick judges generally look for “intent.” If you see the person and immediately turn around and leave, you have not breached your order. However, if you stay or attempt to signal them, you are in legal danger.
Sentencing Realities in New Brunswick
If a case results in a conviction, the sentencing for a historical sexual assault conviction in New Brunswick is rigorous. The primary goals are “denunciation” and “deterrence.”
Mandatory Minimums and Maximums
While some mandatory minimum sentences have been struck down by the Supreme Court of Canada, the “starting point” for a historical sexual assault involving a minor or significant violence in New Brunswick often includes a period of federal or provincial incarceration.
SOIRA and the Sex Offender Registry
A conviction in a historical sexual assault case involving touching or rape will result in a mandatory order under the Sex Offender Information Registration Act (SOIRA). You will be required to report your address, workplace, and travel plans to the police for 10 years, 20 years, or life.
DNA Data Bank
The court will also order you to provide a DNA sample to the National DNA Data Bank. In New Brunswick, this is a standard post-conviction order for “primary” offences like sexual assault.
Why Local New Brunswick Experience Matters
Every jurisdiction in New Brunswick—from the Saint John Law Courts to the Edmundston circuit—has its own local culture. Crown Prosecutors in different regions may have different views on “resolution” versus “litigation.”
Navigating the Crown-Defence Relationship
Having a lawyer who understands the local New Brunswick Prosecution Services policies is vital. We know which arguments resonate with local judges and how to properly challenge a complainant’s testimony without violating “Rape Shield” laws.
Preparing for the Preliminary Inquiry
The Preliminary Inquiry is a unique opportunity to test the Crown’s case. In New Brunswick, this stage allows us to assess the “strength” of the witness before you ever stand trial in the Court of King’s Bench.
New Brunswick Prosecution Policies
The New Brunswick Public Prosecution Services Operational Manual provides specific directives to Crown Prosecutors on how to handle sexual assault cases.
Policy 32: Victims and Witnesses
Crown Prosecutors in NB are instructed to treat complainants with “courtesy, compassion, and respect.” This often means the Crown will be reluctant to withdraw charges even if the evidence seems weak. They are required to consider the “trauma-informed” nature of the testimony.
Diversion and Alternative Measures
New Brunswick has an Adult Diversion Model. However, for offences involving sexual touching or violence, diversion is almost never offered. These cases are generally viewed as being “in the public interest” to prosecute fully.
Preliminary Inquiries
In New Brunswick, if the Crown proceeds by indictment, you may have the right to a Preliminary Inquiry. This is a “mini-trial” where your lawyer can cross-examine the complainant to see if the Crown has enough evidence to go to a full trial. This is a crucial tool for a defence lawyer to “lock in” testimony and find inconsistencies.
Strategies for Defending Historical Sexual Assault Allegations
Because there is usually no DNA or video evidence, the defence of a historical sexual assault charge must focus on the “Three C’s”: Credibility, Consistency, and Context.
Inconsistent Statements
We look at every statement the complainant has made—to the police, to therapists, to family members, and in court. If their account has changed significantly over the years, it can create reasonable doubt.
Motive to Fabricate
In some historical sexual assault cases, a complaint may emerge during a civil lawsuit or a dispute over a will or inheritance. While the court is sensitive to this, a possible motive for making an allegation is a relevant factor for the defence.
The “Air of Reality”
We examine whether the events described were even physically possible. For example, if the complainant alleges an assault happened in a specific house in 1982, but property records show you did not move into that house until 1985, the Crown’s case begins to weaken.
The Impact on Your Life in New Brunswick
The stigma of a historical sexual assault charge in a close-knit province like New Brunswick is immense. Even before any verdict, your reputation in your community can be affected.
Employment and Vulnerable Sector Checks
Once charged, you will have a “pending charge” on your record. This will show up on any Criminal Record Check or Vulnerable Sector Check (VSC). If you work in a school, hospital, or with seniors, you will likely be suspended or terminated immediately.
Travel Restrictions
While a charge is pending, you may have difficulty crossing the border into the United States. US Customs and Border Protection (CBP) can deny entry based on a “Crime Involving Moral Turpitude,” even without a conviction.
Key Takeaways: Defending a Historical Sexual Assault Charge in NB
A historical sexual assault charge in New Brunswick can be laid decades after the alleged event, with no statute of limitations and often no physical evidence. Because the case usually turns on the complainant’s testimony, an early and careful defence is critical. Say nothing to police without counsel, follow every bail condition to the letter, and build your defence around credibility, consistency, and context.
- Stay silent: Do not give a statement or try to “clear the air” without a lawyer in a historical sexual assault investigation.
- Respect no-contact orders: Even an accidental like or text can revoke your bail.
- Preserve evidence: Old records, dates, and witnesses can dismantle a historical sexual assault allegation.
- Use the Preliminary Inquiry: It lets your lawyer test and lock in the complainant’s account.
FAQ: Defending Historical Charges in NB
Can the police arrest me without any physical evidence?
Yes. In Canada, the testimony of one person, if believed by the judge, can be enough to convict. The police do not need DNA or corroborating “proof” beyond the complainant’s statement to lay a historical sexual assault charge and make an arrest.
What happens if I accidentally see the complainant in public?
New Brunswick is small. If you run into the complainant at a grocery store or a local rink, you must leave immediately. Do not make eye contact and do not speak. As long as you leave the area the moment you realize they are there, you are generally protected from a “breach” charge.
Can I get a “No Contact” order changed so I can see my family?
If the complainant is a family member, your lawyer can bring a “Bail Variation” application. This requires the Crown’s consent or a hearing before a judge. You should never try to negotiate this yourself.
Is “rape” still the legal term used in New Brunswick courts?
No. The term “rape” was removed from the Criminal Code in 1983. Today, all non-consensual sexual touching falls under the umbrella of “sexual assault,” though historical sexual assault cases may still use the old terminology if the offence happened before the law changed.
What if the complainant is now deceased?
If the person who made the allegation passes away before trial, the Crown usually cannot proceed. Under the Charter, you have the right to cross-examine your accuser. Without a witness to testify in court, there is generally no evidence to support a conviction.
Can I get my fingerprints destroyed if the charges are dropped?
Yes. If you are found not guilty or the Crown withdraws the charges, you can apply to the local police department to have your fingerprints and photographs destroyed. This helps ensure you do not carry a “non-conviction” record that could affect your travel.
What is the difference between a “Peace Bond” and a conviction?
In rare cases, the Crown may agree to a Section 810 Peace Bond, which is not a criminal conviction. You agree to follow certain conditions (like no contact) for up to 12 months, and in exchange the criminal charges are withdrawn. However, this is rarely offered in cases of serious sexual assault.
About the Author: Matthew R. Oliver is an associate lawyer at Mike Murphy Law Group, defending clients across New Brunswick against historical sexual assault and other serious criminal allegations.