The Crown appealed from a provincial appellate acquittal after conceding insufficient proof of attempted incest and seeking substituted convictions for sexual assault and sexual interference.
The majority held that fair notice of legal jeopardy must be ascertainable from the offence charged, the enactment creating it, or the wording of the count, and that the Crown could not rely on trial evidence or the accused's personal knowledge to expand the charge.
Because incest does not necessarily include non-consensual touching or an underage complainant, sexual assault and sexual interference were not included offences under s. 662 of the Criminal Code on this indictment.
The appeal was dismissed, with a dissent concluding that sexual assault was included on the facts and notice given.
