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Criminal - Timing. R. v. G.G.
In R. v. G.G. (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown appeal, this from an acquittal grounded in uncertainty as to when a sexual assault occured and the timing of an 'alibi':[1] The first of these two combined appeals is a somewhat unusual Crown appeal from an acquittal for sexual assault that was alleged to have occurred “on or about the 7th day of April, 2021.” It is an unusual Crown appeal because the trial judge found beyond a reasonable doubt that the respondent committed the sexual assault: “I totally accept the complainant’s evidence as to what happened, and I find that the defendant did, in fact, sexually assault her.”
[2] In light of that finding, one might reasonably ask why this is a Crown appeal from an acquittal. The answer to that question lies in the fact that the trial judge had a reasonable doubt about whether the sexual assault occurred between roughly 10:00 and 11:00 p.m., which is the response the complainant gave when asked in cross-examination roughly when she thought she was sexually assaulted. The respondent later led what the trial judge construed to be an “alibi” defence, claiming he had left the complainant and his home just prior to 10:00 p.m. The trial judge concluded, based on his reading of the law, that he had to acquit because the Crown had failed to prove beyond a reasonable doubt that the sexual assault happened in that one-hour window of time.
[3] This Crown appeal therefore turns on one simple question: because of the complainant’s answer during cross-examination, was the Crown obligated to prove beyond a reasonable doubt that the sexual assault occurred between 10:00 and 11:00 p.m. on April 7, 2021? As I will explain, the answer to that question is no. I would therefore allow the Crown appeal.
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[31] When addressing the so-called “alibi”, the trial judge first explained the law of alibi. He noted that the timing of the commission of an offence is of “central importance when an alibi is raised” because it is an exception to the general rule that “time is not a matter that must be proven in a criminal prosecution.”
[32] The trial judge also noted that once an alibi has been raised, such as here, “the allegation cannot shift in time in a way that has the effect of defeating or negating the alibi.” Since the complainant testified that the sexual assault occurred between 10:00 and 11:00 p.m. and it was met with the “alibi”, the Crown was “required to prove beyond a reasonable doubt both the commission by the defendant of sexual assault AND the time of the commission of the offence” (capitalization in original, underline added). The trial judge arrived at this conclusion by leaning heavily on the decisions in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, and R. v. Tarnovsky (1995), 1995 CanLII 381 (ON CA), 98 C.C.C. (3d) 168 (Ont. C.A.), leave to appeal refused, [1995] S.C.C.A. No. 269. Based upon these decisions, which I will return to later in these reasons, the trial judge formed the following view: “… [O]nce a date or time is specified in a charge or the evidence of the Crown, and it is defended with an alibi, the date and time must be proven. The allegation cannot slide around – backward and forward in time.”
[33] Therefore, the trial judge was satisfied that the Crown had proven beyond a reasonable doubt that a sexual assault occurred, and that it occurred on the actual date covered in the information. However, the actual time of the sexual assault had, through cross-examination, been narrowed to a one-hour window. In response, that one-hour window was met with an “alibi”, albeit one that the trial judge described as “suspect and deeply flawed”. Accordingly, the trial judge found himself unable to convict. This is because, even though the alibi witnesses were not neutral, were “too eager to bolster the defendant’s cause”, gave answers that were “too pat”, and gave “suspiciously similar evidence”, the trial judge found he could not discount the alibi altogether. Therefore, he had a reasonable doubt as to whether the sexual assault occurred between 10:00 and 11:00 p.m. His ultimate conclusion was as follows:I conclude that while I am satisfied that the defendant sexually assaulted the complainant as she described, I am not satisfied beyond a reasonable doubt that the offence occurred at the time she described in her evidence. Having regard to the unique law governing the issue of time and alibi, the Crown must prove that the offence occurred at the time alleged by the charge and the evidence it presented.
Accordingly count #1, sexual assault is dismissed [Emphasis added.] ....
(b) When the timing of an alleged offence may become important to proof of the Crown’s case
[37] I start with an overview of the law relating to when the date or dates of an alleged offence – often referred to in the jurisprudence as the “time” or “time frame” of the alleged offence – become essential to proof of the Crown’s case. An initial grounding in these legal principles helps reveal why the trial judge made a legal error by holding the Crown to proof of time as if it were an essential element of the alleged sexual assault.
(i) Generally, dates are not material
[38] At its core, the provision of a date or date range for an offence and the rules governing when a date or date range can be amended is governed by an overarching rule of fairness to the accused, one that focusses upon the accused’s right to make full answer and defence.
[39] Typically, the precise date on which a crime is committed does not matter in a criminal prosecution. Indeed, s. 601(4.1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, instructs that a difference between the indictment and the evidence taken at trial “is not material” as to “the time when the offence is alleged to have been committed” (or the place where the offence is alleged to have taken place).[2] Accordingly, the accused will usually be charged with committing x crime “on or about” y date or between y and z dates.
[40] When the dates on an indictment or information[3] do not conform to the evidence called at trial, the Crown will sometimes – even though it is often unnecessary – seek to have the indictment amended so as to achieve conformity between what is reflected in the count on the indictment and the evidence as it has unfolded at trial: Criminal Code, s. 601(2). Barring irreparable prejudice to an accused, by which I mean prejudice that cannot be remedied by some other means, including by an adjournment, amendments will be granted: B.(G.), at pp. 49-50.
[41] Therefore, the power to amend dates on an indictment is a broad one and such amendments are aimed at ensuring that criminal cases are determined on their merits and not on mere technicalities.
[42] Accordingly, there is generally no requirement for precision around the date of the alleged criminal conduct. It follows, almost as a matter of course, that if there is no requirement for precision around a date, then precision around the time of day or night of the alleged offence is likewise unnecessary. The “golden rule” is simply that the accused be provided with enough information to be “reasonably informed of the transaction alleged against him”: R. v. Côté, 1977 CanLII 1 (SCC), [1978] 1 S.C.R. 8, at p. 13. This allows the accused to make full answer and defence.
[43] Importantly, when it comes to the prosecution of sexual offences, including sexual offences against children, the law provides for significant elasticity on the timing point. The law recognizes that it is often “unrealistic” to pinpoint the timing of the alleged offence with absolute precision: R. v. P.(M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, at p. 567. Therefore, charges are frequently framed, as in this case, in a flexible way: that the “[accused] on or about the 7th day of April, 2021 at the City of Brampton in the said region did commit a sexual assault on [the complainant]” (emphasis added).
[44] With the general rule now set, I will consider those rare circumstances where time will become material to proof of an offence and then explain why the trial judge erred in finding that this case falls within one of those rare circumstances.
(ii) The two exceptions to the general rule
[45] It is often said that there are two exceptions to the overarching rule that time is not material to proof of an offence: (i) where the date or date range constitutes an essential element of the offence; and (ii) where the date or date range is “crucial to the defence”: B.(G.), at pp. 49-51; Tarnovsky, at p. 173.
[46] Falling under the first category are those cases where the offence is only a crime if it occurred during a certain period of time. In the context of sexual crimes, helpful examples include sexual interference (s. 151 of the Criminal Code) and invitation to sexual touching (s. 152 of the Criminal Code), both of which require proof that the complainant was under a certain age at the time of the alleged offence.
[47] When it comes to the crime of sexual assault involving an adult complainant, a sexual assault is a sexual assault, regardless of when it was committed. Accordingly, in a case such as this, when the alleged sexual assault took place is not essential to proof of the offence and, subject to the second exception, need not be proven: B.(G.), at pp. 48-50, 53; Tarnovsky, at p. 173; R. v. S.M., 2017 ONCA 878, at paras. 10-12.
[48] It is the second exception that lies at the heart of this appeal. As noted by Wilson J. in B.(G.), on behalf of a unanimous Supreme Court, the second exception involves circumstances where the timing of the offence is “crucial to the defence”: B.(G.), at pp. 51-53. Wilson J. provided an example of a situation where proof of time would be “crucial to the defence”. Specifically, she pointed to a situation where the “accused defends the charge by providing evidence of an alibi for the date or time period alleged” by the Crown (emphasis added): B.(G.), at p. 51. This is the exception that the trial judge relied on in holding that, to secure a conviction, the Crown needed to prove that the sexual assault happened at around 10:00 to 11:00 p.m. on April 7, 2021.
[49] I pause here to clarify the meaning of “alibi” since the term is sometimes used loosely. There is no such thing as a “partial alibi”. An alibi means that the accused could not have committed the offence because he was elsewhere at the time that it was allegedly committed. In fact, the word alibi derives from the Latin word for “elsewhere”: R. v. Hill (1995), 1995 CanLII 271 (ON CA), 102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 478-479. Therefore, a true alibi is entirely determinative of innocence: R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 50; R. v. R.(M.) (2005), 2005 CanLII 5845 (ON CA), 195 C.C.C. (3d) 26 (Ont. C.A.), at paras. 29-31; Hill, at pp. 478-479. This means that an accused who is elsewhere for only part, but not all, of the time period alleged does not have an alibi. At most, that accused has a diminished opportunity to commit the offence: R. v. J.D., 2021 ONCA 376, 156 O.R. (3d) 126, at para. 50, leave to appeal refused, [2021] S.C.C.A. No. 279; R. v. Hall (2004), 2004 CanLII 46216 (ON CA), 193 O.A.C. 7 (Ont. C.A.), at paras. 7, 40-41, leave to appeal refused, [2006] S.C.C.A. No. 69. Therefore, when I refer to an alibi in these reasons, I am referring to a true alibi – one that places the accused elsewhere during “the date or time period alleged” by the Crown.
[50] Returning to B.(G.), Wilson J. held that in circumstances where the defence leads an alibi “for the date or time period alleged” (“time period alleged”), the Crown will not be permitted to shift the time period alleged and claim that the offence was committed, but just at a different time period: B.(G.), at pp. 51-53. In those cases where time has become “crucial to the defence” because the defence has led an alibi in response to the time period alleged by the Crown, it would be fundamentally unfair, and it would undermine the right to full answer and defence, to shift the sands so late in the day by allowing the Crown to change its tack and allege a different time period. In these rare circumstances, the Crown will be held to proof of the time period alleged.
[51] Therefore, it is not the simple fact of the accused leading what he calls an “alibi” that holds the Crown to a specific time. Rather, it is only in circumstances where a true alibi is led, one that responds to the entirety of the time period alleged by the Crown, that transforms the time period alleged into something that is “crucial to the defence”. At paras 55-86 the court further considers this law, usefully examining two precedent cases.
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