Herman Gill

The appellant appealed a criminal conviction upheld by the Court of Appeal for Ontario.

The Supreme Court of Canada heard the appeal and delivered an oral judgment the same day, unanimously dismissing the appeal and upholding the conviction.

Short reasons were indicated to follow.

The Crown appealed an acquittal for sexual assault, arguing the trial judge erred in requiring proof that the offence occurred within a specific one-hour window after the accused raised an alibi defence.

The accused cross-appealed his conviction for assault, arguing the verdict was unreasonable.

The Court of Appeal allowed the Crown's appeal, holding that the exact time of the offence was not an essential element and the alibi did not freeze the Crown's case to the time estimated by the complainant in cross-examination.

A conviction for sexual assault was substituted.

The accused's cross-appeal was dismissed, as the trial judge's treatment of the defence evidence was not inconsistent.

The accused, R.N., pleaded guilty to one count of sexual interference involving his 13-year-old step-granddaughter, A.B. The incidents occurred five times over a three-month period in the victim's home, involving digital penetration and touching of breasts.

The Crown sought a four-year penitentiary sentence, while the defence sought a reformatory sentence of two years less a day.

The court considered the profound impact on the victim, the high breach of trust, and the principles of sentencing, particularly denunciation and deterrence as emphasized by the Supreme Court of Canada in R. v. Friesen.

Despite the offender's intellectual delay, remorse, and low risk of reoffending, the court imposed a sentence of two years less one day imprisonment, followed by three years of probation with specific conditions, a 10-year weapons prohibition, and a 20-year SOIRA order, aligning with the defence's request for the length of incarceration.