COURT OF APPEAL FOR ONTARIO

CITATION: R. v. G.G., 2025 ONCA 574[^1]

DATE: 20250801

DOCKET: COA-24-CR-0257 & COA-24-CR-0343

Fairburn A.C.J.O., MacPherson and Gillese JJ.A.

BETWEEN

His Majesty the King

Appellant

(Respondent by way of cross-appeal)

and

G.G.

Respondent

(Appellant by way of cross-appeal)

Raoof Zamanifar, for the appellant (COA-24-CR-0257)/respondent (COA-24-CR-0343)

Myles Anevich and Herman Gill, for the respondent (COA-24-CR-0257)/appellant (COA-24-CR-0343)

Heard: May 14, 2025

On appeal from the acquittal and from the conviction entered by Justice Bruce Duncan of the Ontario Court of Justice on December 21, 2023.

Fairburn A.C.J.O.:

A. overview

[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.

[4] The respondent also appeals, seeking to overturn his conviction on one count of assault. (For ease of reference, I will refer to him as the respondent throughout these reasons, notwithstanding that he is the appellant on the appeal from conviction.)

[5] The respondent maintains that the assault conviction, arising out of events on April 8, 2021, constitutes an unreasonable verdict because it is inconsistent with the acquittal on the sexual assault charge. As I will explain, I would dismiss the conviction appeal.

B. background

(1) The Sexual Assault Allegation

[6] The respondent was charged with sexual assault on the basis that he engaged in non-consensual sexual intercourse with the complainant, who was his wife at the time. As is entirely normal, the sexual assault count on the information made no reference to the hour at which the sexual assault occurred, only that it occurred “on or about the 7th day of April, 2021.”

(2) Section 276 Application

[7] Four months before the trial, the defence brought a s. 276 application. The application noted that the date of the alleged sexual assault was April 7, 2021. It also noted that consent was the “determinative issue,” with no reference made to an alibi. The respondent swore an affidavit in support of his application in which he stated that he engaged in consensual sexual intercourse for the last time with the complainant on April 7, 2021. The s. 276 application was ultimately dismissed on consent.

(3) The Trial

[8] For the first time – on the first day of trial, over two years after the charges were laid – defence counsel disclosed that he would be calling evidence “that teeters on [an] alibi defence.” No advance notice of that teetering alibi had been provided to the Crown. The trial judge suggested that notice should have been given to the Crown and that the defence attend to that right away. Despite the absence of any notice of the teetering alibi, the trial Crown was content to start the trial, and she called her only witness, the complainant.

[9] Around the same time that the Crown completed the examination-in-chief of the complainant, the defence sent her an email suggesting that they would be disputing the “allegation” that the respondent stayed at the family residence during the evening of April 7, 2021, as well as disputing the fact that he “committed a sexual assault in the hours of 10-11 PM.” The respondent’s claim was said to be “corroborated by 4 independent witnesses available at trial”. The names of those witnesses were provided.

[10] The defence fixation on the 10-11 PM time frame for the sexual assault appears to have come from a statement provided by the complainant to the police. Notably, the Crown did not elicit that time from the complainant during the examination-in-chief.

[11] The complainant testified in chief about the sexual assault that she believed took place on April 7, 2021. She said that she was getting ready for bed when the respondent said he wanted to have sex. She said “no”. He then pushed her onto the bed, pulled down her pants and underwear and had unprotected sexual intercourse with her. He ejaculated on her stomach. The complainant felt “disgusted” by what had taken place, but no words were exchanged with the respondent. As she said, in her culture she was taught to do whatever was necessary to keep from being a “divorcee”. Accordingly, she rolled over and went to sleep.

[12] During cross-examination, the complainant was asked “roughly” what time the sexual intercourse occurred, and she responded: “Ten, 11:00 p.m.” This was consistent with what she had told the police.

[13] She testified that when she awoke the next morning, at around 7:00 a.m., the respondent was still asleep. She was clear in her testimony that this was the last time that the respondent slept at home in their bedroom.

[14] Although the respondent acknowledged in cross-examination that he and the complainant had sex on April 7, 2021, he maintained that it was consensual and that it was about 21 hours earlier than what the complainant said, specifically around 1:00 a.m. The respondent testified about his understanding of consent, that “[i]n general, if a boy does something that is done with force, she would say something.” He denied that the complainant said “no” and said that his understanding about consent came from “some emotional feeling from both sides.” The respondent acknowledged that after this last act of sexual intercourse, he slept in their bedroom for the last time.

[15] The respondent maintained that he left the home around 9:00 p.m. on April 7, 2021, and went to his girlfriend’s home, where he stayed after that. That meant he had already left the family home before the time when the complainant said the sexual assault occurred.

[16] The defence called four witnesses in support of what the respondent referred to as his “alibi”. The respondent’s girlfriend and her two friends corroborated his version of events, saying that they witnessed him leaving the marital home around 9:00 p.m. on April 7, 2021. The respondent’s sister, who lived with the respondent and complainant, testified that when she arrived home from work during the early morning hours of April 8, the respondent was not present.

[17] In summary, the respondent’s evidence and the complainant’s evidence dovetailed on many essential points: they agreed that there was a final act of sexual intercourse on April 7, 2021, and that it was followed by a final act of sleeping in the same bedroom at the marital home. Their accounts diverged on two points: (i) whether the sexual intercourse took place in the early morning or later evening hours of April 7, 2021; and (ii) whether the sexual intercourse was consensual.

(4) The Assault Allegation

[18] The complainant testified that after she got out of bed at around 7:00 a.m. on April 8, 2021, the morning after being sexually assaulted, she saw the respondent still sleeping. She then went to work. Later in the afternoon, she received a call from the respondent, saying that he was moving out and asked that she come home early. She arrived home from work in the evening and found the respondent’s belongings packed. She felt confused. The respondent arrived a short time later at which point the complainant asked him to explain why he was leaving. He then pushed her and slapped her twice on the face with an open hand. Then he was gone.

[19] The respondent testified that, upon returning to the marital home on the evening of April 8, 2021 to collect his things, the complainant was emotional about his departure. He testified, however, that he was able to calm her down and convince her that a break in their relationship would be a good thing for them. He said that the moving out was “peaceful” and that the complainant ultimately helped him with his things. He denied assaulting her.

(5) The Report to the Police

[20] The complainant testified that on April 9, 2021, she received a call at work. It was the respondent, who informed her that he was seeking a divorce.

[21] That same evening, the complainant reported both the sexual assault and the assault to the police. When pressed in cross-examination to explain why she held back in reporting the matter to the police until after hearing about the divorce, the complainant said: “[U]p till that point I was trying to – I was still hopeful … to save the marriage and be in a relationship and not have a divorce tag on myself.” After the respondent said he wanted a divorce, the complainant decided there was no longer any reason to refrain from reporting the matter to the police.

(6) The Positions at Trial

[22] During closing submissions, the defence argued that the complainant contrived the allegations because she was upset over the divorce. Although the respondent acknowledged that he and the complainant had consensual sexual intercourse around 1:00 a.m., he said that the complainant was lying about the sexual interaction she recalled taking place between 10:00 and 11:00 p.m. This position was said to be supported by the “alibi” evidence. The defence also argued that if the complainant was wrong about the timing of the alleged sexual assault, then the trial judge should have a reasonable doubt arising from her lack of reliability and credibility.

[23] The Crown’s primary argument was that the trial judge should simply accept the complainant’s version of events. The Crown also argued that the so-called alibi was nothing more than the product of collusion and should be rejected, and that an adverse inference should be drawn because of the failure to disclose it in advance. In any event, the complainant and respondent were clearly referring to the same event, only differing on whether there was consent. Therefore, the so-called “alibi” was irrelevant because it did not matter what time the sexual assault occurred.

[24] As to this last point, there was a telling exchange between the trial judge and Crown counsel during closing submissions, where the trial judge seemed to understand the Crown position, which remains the Crown position on appeal:

The Court: Well, more than that, I guess, it’s like 24 hours difference [between the complainant and respondent’s version of when the offence happened] and, yes, and so if that’s the way you look at it, it’s really not an alibi situation at all, is it.

[Crown]: Yes, that’s my point. Yes. If your Honour accepts that it was the same act then, again, all that evidence is just not relevant and Your Honour does not need to make any findings of fact with respect [to the alibi evidence].

The Court: Well, it’s relevant to the extent that, I guess, if it’s true or remains as a reasonable doubt, then between the two of them, it’s the complainant is mistaken as to when it occurred.

[Crown]: Yes, I agree with that, Your Honour.

The Court: Okay.

[Crown]: Yes, it would go to [the complainant’s] reliability on the date.

[25] After the matter went under reserve, the trial judge twice asked for follow-up submissions.

[26] To this end, he sent the parties two emails. In the first email, he asked them to comment upon two matters, only one of which is relevant to this appeal: “Provided it is found there was no consent, can a conviction be based on the sexual act testified to by the defendant that he says occurred around 1 am on April 7, 2021?”

[27] In response, and for the first time, the defence maintained that the Crown was duty bound to prove the sexual assault occurred between 10:00 and 11:00 p.m. In contrast, Crown counsel maintained her original position that the complainant and respondent were referring to the same sexual act on April 7 and that the timing of that act did not matter. What mattered was that it occurred absent consent.

[28] In the second email, the trial judge told the parties that he was satisfied that the respondent and complainant were “referring to the same” last act of sexual contact “on the date alleged”. This left the issue of consent to be determined. He was concerned that the “defendant’s evidence” about the timing of the sexual intercourse had left the complainant without any cross-examination on the “issue of consent.” Accordingly, he offered the defence the opportunity to recall the complainant to cross-examine her on consent related to the 1:00 a.m. sexual intercourse that he had acknowledged occurred. The defence declined, suggesting that the issue of consent had already been cross-examined on.

C. reasons for judgment

[29] The trial judge was “impressed with the evidence of the complainant.” He found that there was “nothing about the content of her evidence or [the] manner of giving it that suggested … that she was being less than sincere, much less mendacious.” Her actions were found to be “consistent with what she said happened” and that she “came across as sad and hurt but not vindictive or out for revenge.” He further found that the “temperance in her allegation”, together with the detail she provided, gave her credibility.

[30] To the trial judge, the complainant’s explanation as to why she went to the police when she reported the matter made “perfect sense”. The way the complainant’s story unfolded further supported her credibility.

[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 7308 (SCC), [1990] 2 S.C.R. 30, and R. v. Tarnovsky (1995), 1995 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.]

[34] The trial judge then went on to convict the respondent on the count involving the assault. He accepted the complainant’s evidence on this count and specifically rejected the evidence of the respondent’s “apparently ever-present” girlfriend and her sister, who both claimed to have witnessed the complainant assisting the respondent in moving out.

D. analysis

(1) Crown Appeal – Sexual Assault Conviction

(a) Parties’ submissions

[35] The Crown argues that the trial judge erred by concluding that the Crown was required to prove, beyond a reasonable doubt, that the sexual assault occurred between 10:00 and 11:00 p.m. on April 7, 2021. The Crown contends that there are only rare circumstances where proof of the time of an offence is required and that this was not one of those circumstances. In effect, says the Crown, the trial judge allowed the respondent’s late-breaking “partial alibi” to freeze the Crown’s case, in the absence of prejudice to the respondent.

[36] The respondent maintains that, considering the complainant’s testimony, the trial judge was right to require the Crown to prove beyond a reasonable doubt that the sexual assault occurred within the time frame testified to. The respondent contends that the need to prove time may arise from how Crown witnesses testify. He maintains that where a complainant offers some precision about the time of the offence and the accused then provides an alibi for that period – as happened in this case – the Crown is duty bound to prove that time. The trial judge’s reasonable doubt on whether the time was established by the Crown in this case is said to have properly translated into an acquittal.

(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 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 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 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 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 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”.

[52] The respondent suggests that the time period alleged does not arise from the charging document because it is not evidence against the accused. Rather, the respondent says that it is the evidence – in this case, the complainant’s evidence – that necessarily crystalizes the time period alleged. On this basis, the respondent argues that the trial judge was right to conclude that the complainant’s answer in cross-examination that the sexual assault occurred at roughly 10:00 to 11:00 p.m. exclusively governed the time period alleged by the Crown. Once that time period was responded to with an alibi, says the respondent, it was no longer open to the Crown to allege the sexual assault occurred at a different time because the one-hour time frame became crucial to the defence.

[53] If the trial judge was right that the “time period alleged” by the Crown was narrowed by the complainant’s answer to the question posed in cross-examination – that she was sexually assaulted around 10:00 to 11:00 p.m. on April 7, 2021 – then the trial judge’s analysis would make sense. After all, the respondent led evidence suggesting he moved out of the matrimonial home around 9:00 p.m. and was already staying at his girlfriend’s home by 10:00 p.m. Therefore, if the time period alleged by the Crown was in fact the one-hour time frame identified by the complainant, then the time period alleged by the Crown would have become “crucial to the defence” by virtue of the alibi evidence and the Crown would have been stuck with it.

[54] However, as I will now explain, this was not the time period alleged by the Crown and, therefore, although the defence may have led some limited opportunity evidence, the defence did not lead an alibi.

(iii) Eschewing technicalities and promoting fair trials

[55] We need look no further than two cases to demonstrate that the “date or time period alleged” by the Crown in this case is not as narrowly circumscribed as the trial judge suggested.

[56] The first decision is P.(M.B.) from the Supreme Court of Canada.

[57] This was a sexual assault prosecution involving a child complainant. The information alleged that the offences occurred in a specific year, namely between January 1, 1980 and January 1, 1981. Following the preliminary inquiry, the information was amended, on consent, to allege that the incidents took place between January 1, 1982 and January 1, 1983. The Crown witnesses’ testimony was consistent with that alleged time frame. Then, at the close of the Crown’s case, the defence announced that it proposed to call alibi evidence in answer to the charges – that the respondent was hospitalized during the summer of 1982.

[58] The case was then adjourned for several weeks. When the proceedings recommenced and before any defence evidence was called, the Crown sought leave to recall the complainant's mother to testify that the offences had occurred in the summer of 1983, not the summer of 1982. Over the defence’s objection, the trial judge permitted the Crown witness to be recalled, which recast the entire time frame for the alleged offences. At the Crown’s request, the trial judge then amended the indictment to conform to the new evidence, thereby destroying the accused’s anticipated alibi.

[59] The majority concluded that the case presented by the Crown – the “date or time period alleged” by the Crown – was the time frame set out on the indictment, combined with the original evidence of the Crown witnesses. Allowing the Crown to change the time period alleged so late in the day, after the accused had declared his intention to call an alibi defence, worked a serious unfairness to the accused. In these circumstances, the majority found that acceding to the Crown request and allowing the time to shift at that stage of trial was “contrary to the interests of justice”, “prejudicial to the accused” and violated a “fundamental tenet of our criminal justice system that an accused must not be conscripted against himself”: P.(M.B.), at p. 583.

[60] At the same time, the majority observed that an accused has no right to “freeze” the Crown’s case to proof of a particular time simply by announcing that they will call an alibi. In this regard, the majority emphasized that an accused has no “vested right to a given alibi.” Rather, the “alibi evidence must respond to the case as presented by the Crown, and not the other way around” (emphasis added): P.(M.B.), at p. 567.

[61] The second decision that provides guidance on how to identify the date or time period alleged by the Crown is this court’s decision in Tarnovsky.

[62] This was a case involving an accused who was the young complainant’s school bus driver. The indictment alleged that the accused touched the child in specified months in a specified school year and the complainant’s evidence matched that allegation.

[63] The defence led an alibi for that entire time period. That alibi suggested that the appellant, who was a Russian immigrant, did not drive the complainant’s school bus at any time during the time frame on the indictment. Indeed, the alibi evidence established that it was another Russian immigrant who drove the complainant’s school bus during that entire time frame. This evidence was left entirely unchallenged by the Crown.

[64] To get around the obvious hurdle that the appellant was not the child’s school bus driver at any time during the time period alleged on the indictment – that he was truly elsewhere during that entire time period – the trial judge instructed the jury that the date on an indictment was “not binding on the Crown”: Tarnovsky, at p. 172. As the trial judge put it: “[T]he time frame is really quite irrelevant”: Tarnovsky, at p. 172. On this basis, the alibi was neutralized, and the jury convicted the appellant.

[65] In identifying the time period alleged and determining whether it had become crucial to the defence, Doherty J.A. made some observations that guide this case. Specifically, he noted, at p. 175:

The language of the indictment, the substance of the complainant’s evidence, and the appellant’s response to the allegations, made the time period alleged in the charges critical to the case presented by the Crown and crucial to the defence.

[66] Doherty J.A. also noted that when the accused was called upon to answer the charges, “he did so by advancing an alibi which covered the entire period referred to in the allegations made against him": Tarnovsky, at p. 173.

[67] In my view, these cases demonstrate that the date or time period alleged by the Crown must be assessed through a wholistic or contextual lens, rather than focussing narrowly on whether a particular witness, or even a complainant, testifies to the time of day or night that they think the offence took place. To proceed in such a narrow fashion would be to render prosecutions vulnerable to extreme technicalities.

[68] This is particularly true when it comes to sexual assault prosecutions, especially those involving children. It is not uncommon – in fact, some might say it is common – for a complainant in a sexual assault trial to be mistaken about peripheral matters, including the specific day, week, month or even year of the alleged offence, not to mention the hour at which the alleged offence took place. However, such inaccuracies do not detract from the clarity or certainty with which complainants recount the assault itself, regardless of when it occurred. In other words, they may be mistaken about where the hands on the clock lay at the time of the assault, or even the date on which they were assaulted, but they will not be mistaken about the fact they were assaulted and by whom.

[69] Indeed, one is left wondering whether that is not precisely what happened in this case. After all, the trial judge was satisfied beyond a reasonable doubt that the complainant was sexually assaulted by the respondent, and even satisfied beyond a reasonable doubt that she was sexually assaulted by him on the very date set out in the information. The trial judge’s reasonable doubt arose not from whether the sexual assault occurred, but from whether it occurred at between 10:00 and 11:00 p.m., the time that the complainant recalled being sexually assaulted by the respondent, a time elicited through cross-examination.

[70] Justice demands that criminal trials remain focussed upon the fair pursuit of the truth, a pursuit that eschews technicalities. We cannot permit criminal trials to devolve into games of chess, leading to a gotcha moment. Respectfully, despite the trial judge’s efforts to wrestle with this issue, this case is emblematic of a gotcha moment: a verdict of not guilty, despite a finding that the accused, in fact, sexually assaulted the complainant on the very date alleged on the information. In my view, properly applied, the legal principles did not lean toward this result and, rather, pushed in the opposite direction. So did fairness.

[71] It is for the Crown to allege the date or time period of the offence so that the accused understands the case to be met. As in Tarnovsky and P.(M.B.), the alleged time of the offence will be reflected on the charging document, which will typically coincide with the evidence elicited by the Crown at trial. The position taken by the Crown may also inform the time period alleged, depending on the case and how it evolves: R. v. R.B., (1999), 1999 1670 (ON CA), 139 C.C.C. (3d) 77 (Ont. C.A.), at pp. 81, 86.

[72] In sexual assault prosecutions, that time period is going to be informed largely by the face of the charging document. While a witness may testify about their recollection of the time of day or night that the alleged offence occurred, that testimony will not automatically narrow the time period alleged by the Crown. While a witness being nailed down on their memory of a particular time period may inform assessments of their credibility and reliability, especially where they are proven to be wrong in relation to that memory, the fact of their testimony alone will rarely, if ever, restrict the time period alleged by the Crown. This is going to be especially true in sexual assault prosecutions where time holds so little import to the Crown’s case.

[73] This is not to say that in some rare circumstances, the date or date range on an indictment cannot be significantly narrowed. I acknowledge that from time to time, the Crown may allege a tighter time period than the one reflected on the indictment, even a time period that is rooted in a specific time of day or night. Although time is not essential to proof of the Crown’s case, sometimes that time will form an inevitable part of the case to be met. For instance, the actual hour of day or night may become inextricably intertwined with proof of the offence where the offence happened at a definitive moment in time.

[74] Take, for instance, a robbery at a convenience store, followed by a 9-1-1 call. The robbery is caught on video and the time reflected on that video corresponds to when the 9-1-1 call was received. In these circumstances, the Crown is obviously prosecuting that robbery – the one that was caught on video and that took place on y date at x time.

[75] Of course, in this type of situation, even if the indictment says that the robbery took place “on or about April 7, 2021”, if the defence leads an alibi showing that the accused was at his workplace at the very time of day that the robbery indisputably took place, the Crown cannot then say time does not matter. Obviously, in these circumstances where the time of day is definitively known, and time has become crucial to the defence through the elicitation of an alibi, fairness demands that the Crown be stuck with disproving the alibi or resigning to an acquittal.

[76] But that is not this case. As I will now explain, the timing of the alleged sexual assault was not part of the case presented by the Crown and did not form part of the case to meet.

(c) Time was not “critical to the Crown’s case” or “crucial to the defence”

[77] Here, the indictment alleged that the sexual assault took place on or about April 7, 2021. The Crown did not seek to prove a more precise time in examining the complainant – time was not an element of the offence and identity was not an issue. The evidence elicited by the Crown was that the event in issue was the final act of sexual intercourse between the complainant and the respondent before he left the marital home to stay with his girlfriend.

[78] After the trial judge raised the issue of time, the Crown took the position that, regardless of when it occurred on April 7, 2021 – whether at roughly 10:00 to 11:00 p.m., or at 1:00 a.m., as the respondent testified to – the complainant and the respondent were referring to the same act of sexual intercourse, followed by the respondent’s final act of sleeping at the family home. The trial judge accepted that was the case.

[79] The trial Crown quite properly acknowledged that if the trial judge found that the complainant was wrong about the hour of the offence, this would be a factor to take into account when assessing the strength of her evidence. But the Crown was not required to prove the hour of the offence.

[80] By requiring the Crown to prove that the sexual assault occurred at roughly 10:00 to 11:00 p.m., the trial judge effectively reversed the principle that an alibi must respond to the case as presented by the Crown and not the other way around: P.(M.B.), at p. 567. Although it is true that the complainant testified in cross-examination to the hour of the offence, this did not narrow the time period alleged by the Crown. On the contrary, it came to resemble a straw man – set up through the cross-examination – to serve as a foundation for advancing an alibi that would freeze the Crown’s case to that hour. This is in line with what Lamer C.J. cautioned against inP.(M.B.), where he said that an accused does not have a “vested right” to an alibi and cannot take steps to freeze the Crown’s case: P.(M.B.), at p. 567. Were it otherwise, the potential for mischief would be significant in prosecutions, including sexual assault prosecutions.

[81] As I have explained, the golden thread running through this area of the law is a concern about preventing the unfairness that arises when an accused is led to believe that a specific time period is alleged, and structured their defence accordingly, only to have the Crown shift the time. In such circumstances, permitting the Crown to depart from the date or time period alleged – as in Tarnovsky and P.(M.B.) – would be unfair and would compromise the accused’s right to make full answer and defence. But that is not what happened here. Put simply, the accused was not misled.

[82] The respondent’s position from the outset, even as early as the s. 276 application, was that the “determinative issue” would be one of consent, not alibi. And even when the “alibi” was raised on the first day of trial, it was only characterized as something that “teeter[ed] on alibi”. Even at that time, the defence recognized that this was not a true alibi, but rather a limited opportunity defence.

[83] The failure to provide advance notice to the Crown of the teetering alibi further demonstrates the fact that this was not a true alibi. Rather, it was defence evidence responding to the 10:00 to 11:00 p.m. time frame that the complainant had told the police she thought she was sexually assaulted, which was only a part of the time period alleged by the Crown.

[84] The complainant’s answer to the question posed by the defence regarding the specific timing of the alleged sexual assault could not freeze the Crown’s case to proof of that time. That is especially so where the charge alleged a sexual assault on the very date the trial judge found the respondent sexually assaulted the complainant.

[85] In the circumstances of this case, it was the framing of the charge, the evidence elicited by the Crown and the Crown’s position at trial that should have helped define the time period alleged by the Crown, not just the complainant’s evidence in cross-examination. The time period alleged by the Crown was the time at which that last act of sexual intercourse occurred on or about April 7, 2021, followed by the complainant and respondent sleeping together in their bedroom for the last time. It does not matter that the complainant had them waking up for the last time on the morning of April 8 and the respondent had them waking up for the last time on the morning of April 7. What mattered was that the trial judge believed the complainant that she was sexually assaulted. The defence was not misled, and no prejudice arose.

[86] Respectfully, the trial judge erred in seeing this as one of the rare cases where the Crown was required to prove the time of a sexual assault because the defence led an alibi for the time period alleged. In the circumstances, time was not “crucial to the defence” because it was not critical to the Crown’s case. It was unnecessary for the Crown to prove what it never tried to prove – namely, that the sexual assault took place at between 10:00 and 11:00 p.m.

(d) The Appropriate Remedy

[87] The respondent argues that even if we find an error here, it was an error of fact and, therefore, impermeable to review on a Crown appeal.

[88] I disagree. I see this as a clear error of law – an error that undoubtedly had a material impact on the verdict in this case. I say this because, on the face of his own reasoning, the trial judge found the respondent guilty beyond a reasonable doubt of sexual assault.

[89] In rare circumstances, this court can substitute a conviction under s. 686(4) (b)(ii) of the Criminal Code, when all necessary findings to support a verdict of guilt have been made, either explicitly or implicitly.

[90] But for the trial judge’s error, there would have been a conviction. I say this with confidence by resorting to the trial judge’s own finding, that he was satisfied that the “defendant sexually assaulted the complainant as she described.” This matter should have resulted in a conviction. I would substitute one now.

(2) Appeal from Assault Conviction

[91] The respondent appeals from his assault conviction.

[92] At trial, the respondent denied that there was any assault on the complainant on April 8, 2021 – the day he moved his belongings out of their family home. On his account, things were cordial. In contrast, the complainant testified that when she asked him what was going on, he pushed her in the upper chest and shoulder, which propelled her backwards. She told him that she deserved to know why he was moving out and he responded that it was not “working out.” He then pushed her again and slapped her in the face with an open hand, one slap to each side of her face. He then left the residence.

[93] The trial judge accepted the complainant’s evidence regarding the assault: “There is no question of any mistake on this count. I have no reasonable doubt. The defendant is found guilty on count #2.” He expressly rejected the evidence of the respondent’s sister and his girlfriend that they saw the complainant helping the respondent move out. The trial judge found: “The apparently ever-present girlfriend and her sister claimed to have witnessed [the complainant] helping. I do not believe these witnesses observed this.”

[94] The appeal from conviction rests on a suggestion that the verdict is unreasonable because it is said to be fundamentally flawed and reflective of “inconsistent treatment” of the defence evidence. Specifically, the respondent says that the trial judge’s acquittal on the sexual assault demonstrated that he accepted the defence evidence, or at least was prepared to accept that it gave rise to a reasonable doubt in his mind, as to when the sexual assault occurred. The respondent maintains that this finding cannot coexist with the rejection of that very same evidence for purposes of the assault conviction. The respondent argues that the evidence of the defence witnesses was so important to both counts that it makes no sense that the trial judge would acquit based on the alibi evidence of the defence witnesses and then convict by rejecting that same evidence.

[95] The respondent is right that the trial judge treated the evidence somewhat differently as it related to the two counts. Although he described the defence “alibi” evidence as “highly suspect” and “deeply flawed”, he found it difficult to “totally reject.” As for the defence evidence pertaining to the assault conviction, there is no question that the trial judge totally rejected it.

[96] I see no inconsistency in refusing to “totally reject” the defence witnesses’ evidence as it pertained to when, and if, the respondent moved out, and rejecting their evidence that they saw the complainant help him do so. It was open to the trial judge to accept all, some or none of their evidence. He rejected most of their evidence and was suspicious of the rest.

[97] This is not an inconsistency. The verdicts can rest together.

E. Conclusion

[98] I would allow the Crown appeal, set aside the acquittal, and enter a conviction for sexual assault. I would remit the matter to the trial court for sentencing on the sexual assault conviction. I would dismiss the conviction appeal.

Released: August 1, 2025 “J.M.F.”

“Fairburn A.C.J.O.”

“I agree. J.C. MacPherson J.A.”

“I agree. E.E. Gillese J.A.”

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

[^2]: By virtue of it being in Part XX “Procedure in Jury Trials and General Provisions” of the Criminal Code, s. 601(4.1) applies to summary conviction offences and, therefore, applies equally to informations: see Criminal Code, s. 795.

[^3]: For simplicity, I will use the term indictment.