In March 2023, the Toronto Police sex crimes unit arrested a 31-year-old Toronto man for committing nearly 100 child sexual abuse offences , including sexual assault, sexual interference, luring, and child pornography-related charges. Based on the defendant’s previous child sexual abuse criminal record and the known evidence in this case, the Greater Toronto Area sexual assault defence lawyers of Mass Tsang believe the defendant will struggle to mount an effective criminal defence against the charges.
More recently, Ontario Provincial Police charged 64 Canadians last spring with 348 child sexual abuse offences against 34 known victims. While such major child sexual abuse arrests make the headlines due to the extent of victims and/or charges, Canadian police charge thousands of alleged offenders with child sexual abuse-related offences every year. Some common offences that fall under the rubric of child sexual abuse include:
According to the latest incident-based crime statistics from Statistics Canada, Canadian police investigated 11,503 reports of child sexual abuse in 2023, leading to the arrest that year of almost 5,200 alleged offenders. These figures do not include reports of Level I, II, or III sexual assaults committed against children and youth, as the agency — for some unexplained reason — counts them with the adult figures. In 2023, Canadian police investigated more than 36,000 Level I, II, and III sexual assault incidents — arresting nearly 12,000 suspected offenders for them — but it’s unclear how many of the incidents involved children and youth.
With so many alleged child sexual abuse offenders, you might wonder what criminal defence strategies a criminal defendant might try to mount, especially if they are innocent of the charges. With expertise in sexual assault criminal defence in the Greater Toronto Area, Mass Tsang knows which defence strategies are effective at fighting the charges and securing a favourable outcome, whether pretrial or at trial. Let’s examine the most common criminal defences raised in child sexual abuse cases.
Strategizing an effective defence against any criminal charge primarily depends on the distinct narrative and supporting evidence the Crown uses to prove the elements of the offence and a defendant’s role in it. The Crown’s narrative and supporting evidence must establish guilt beyond a “reasonable doubt” threshold established by common law and Canadian Supreme Court precedents. The Crown must prove two essential elements of a case that the Crown must prove beyond a reasonable doubt to secure a conviction are “actus reus” and “mens rea.” The first element involves proving that the defendant truly committed the offence, while the second element must establish that the defendant committed the offence with intent or knowledge.
Considering these essential case elements, criminal defence lawyers don’t have to outright disprove that the defendant committed the offence with intent or knowledge. Instead, they need to raise enough doubts about the truth of the Crown’s narrative and validity of supporting evidence. This can involve exposing potential flaws in the evidence and calling out inconsistencies in the Crown’s narrative of events. Every successfully raised doubt weakens the Crown’s case and lessens the likelihood of a conviction. That said, if the defence has evidence that proves that the defendant could not have committed the offence — or did so absent intent or knowledge — it will certainly raise it.
The beyond-a-reasonable doubt threshold covering actus reus and mens rea is so essential that skilled criminal defence lawyers strive to cast doubts about the Crown’s evidence and narrative in pretrial negotiations. This can push Crown prosecutors to withdraw charges or agree to otherwise favourable case settlements. Reasonable doubts raised during trial can derail witness testimony or taint evidence to the extent that it forces the Crown to withdraw charges or the judge to dismiss the case.
Depending on case details, criminal defence lawyers have several distinct defence strategies they can use to either outright disprove child sex abuse-related charges or raise enough reasonable doubt to compromise the case narrative validity and/or its supporting evidence. These include:
Present a Viable Alibi — Naturally, should a child sex abuse defendant have evidence proving that they could not have committed the crime — such as proof that they could not have been at the location where the alleged incident occurred — this should be presented to the Crown as soon as possible, and preferably pretrial.
Highlight Lack of Evidence — If the Crown’s child sex abuse case relies primarily on the victim’s allegations, a skilled criminal defence lawyer will highlight the lack of corroborating physical evidence and/or absence of other witnesses who can substantiate the claims.
Challenge Victim/Witness Credibility — Victim and witness testimony carries significant weight in child sex abuse cases. Thus, criminal defence lawyers strive to uncover inconsistencies between accounts delivered during police interviews, pretrial, and during trial. The defence can also question the reliability of victim/witness memories, especially if the account of the incident(s) could be compromised by their age or the passing of significant time since the incident.
Argue a Lack of Intent or Knowledge — In some cases, especially those involving limited contact of an alleged sexual nature — like inappropriate touching included with Level I sexual assault — the defence can successfully argue that the touching was accidental or not motivated by sexual intent.
Point Out Potential Flaws in Forensic Evidence — In child sex abuse cases that rely on forensic evidence, the defence will question its validity, reliability, and how the Crown is interpreting it in relation to the alleged incident. The defence will also examine evidence handling and chain of custody to determine if it may have been compromised.
Expose Charter Rights Violations — When strategizing a child sexual abuse defence strategy, a criminal defence lawyer will always examine police procedure and conduct to determine if they may have violated the defendant’s Charter Rights. Coercive interrogation tactics, unreasonable search and seizures, and failing to advise a defendant about their right to legal counsel during a detention or arrest can nullify related Crown evidence and even derail the entire case.
All sexual offences in Canada’s Criminal Code are predicated on a lack of consent from the victim, and any unwanted sexual activity perpetrated on an unwilling participant constitutes an offence under the law. As such, the issue of whether an alleged victim consented to the sexual activity plays a critical role in many sexual assault and related cases. However, under Canadian law, those under 16 cannot legally consent to engage in any sexual activity, making its use as a defence moot in most child sexual abuse-related cases. A defendant can only claim that the victim consented to the sexual act as a defence if they are close in age to the victim and do not hold a position of dependency, authority or trust over them.
While criminal defences sometimes strive to prove that an adult victim has misidentified the alleged offender, this defence is rarely used in child sexual abuse-related cases because most victims personally know their alleged offender. That said, the Toronto man referenced at the beginning of this article may raise this defence in part because at least one of his victims did not know him.
Mass Tsang’s sexual assault defence lawyers have successfully defended 100s of Greater Toronto Area clients from sexual assault and related charges. To help strategize an effective defence to challenge your child sexual abuse charges, contact the criminal defence experts of Mass Tsang.
