Case in Brief

A Case in Brief is a short summary of a written decision of the Court, drafted in plain language. These summaries are prepared by staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

R. v. G.G.

Case summary

The Supreme Court of Canada says that in most cases the Crown does not have to prove exactly when a sexual assault happened, unless timing is important for the accused’s case.

A man was charged with sexually assaulting his wife. Both the accused and the complainant agree that sexual intercourse occurred. They disagree about the time of the sexual intercourse within that day, and whether it was consensual.

The complainant testified that the accused had sexual intercourse with her without her consent. During cross-examination, she said the incident occurred between about 10:00 p.m. and 11:00 p.m. The accused acknowledged that sexual intercourse occurred that day but said it was consensual and happened about 21 hours earlier, at around 1:00 a.m. He testified that he left the family home at around 9:00 p.m. and later stayed at his girlfriend’s home. In other words, he would have left the family home before the time when the complainant said the sexual assault occurred.

The judge accepted the complainant’s evidence and found that the accused sexually assaulted her. However, because the complainant said the assault occurred between 10:00 p.m. and 11:00 p.m., when the accused would have been at his girlfriend’s house, the judge concluded that the Crown had not proven beyond a reasonable doubt that the assault occurred within that one-hour period. The judge therefore acquitted the accused.

The Court of Appeal allowed the Crown’s appeal. It held that the judge made an error by requiring the Crown to prove that the sexual assault occurred within that precise one-hour period. It set aside the acquittal, entered a conviction for sexual assault, and returned the matter to the trial court for sentencing. The accused appealed to the Supreme Court of Canada.

The Supreme Court of Canada dismissed the appeal. The judgment was delivered orally by Chief Justice Wagner on the day of the hearing with reasons to follow.

G.G.’s conviction for sexual assault remains in place.

In a unanimous judgment, the Court explained that the Crown is generally not required to prove the exact time when an offence was committed. Charges typically indicate that an offence happened “on or about” a particular date or within a range of dates. However, the time of the offence can become important where it is an essential element of the offence or where it is crucial to the defence, such as when an accused raises an alibi. When time is crucial to the defence, it would be unfair for the Crown to change the time of the offence in a way that weakens the defence. Courts must look at the whole case in a practical way to decide whether the Crown has acted unfairly instead of focusing only on a specific time mentioned by a witness. This is especially important in sexual assault cases, where it is common for complainants to be uncertain or honestly mistaken about the specific date or time of the offence.

In this case, the Court found that the Crown did not change the time of the alleged offence in a way that affected the accused’s right to defend himself. Because the judge had accepted the accused had sexually assaulted the complainant, the Court upheld the conviction.