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| John L. Hill |
The trial judge’s reasons were unambiguous: “I totally accept the complainant’s evidence as to what happened, and I find that the defendant did, in fact, sexually assault her.” Nonetheless, G.G. was acquitted of sexually assaulting his wife. However, G.G. was convicted of assaulting her. The case involves two combined appeals arising from events on April 7-8, 2021, involving a husband and wife. The key legal issues concern 1) a Crown appeal from an acquittal for sexual assault, and 2) G.G.’s appeal of his assault conviction.
Despite the trial judge’s finding that a sexual assault occurred, an acquittal was granted because the trial judge had a reasonable doubt that the sexual assault occurred between 10 and 11 p.m. on April 7, 2021, as the complainant testified during her cross-examination. G.G. had an alibi. He says he left home before 10 p.m. He had witnesses who could substantiate that G.G. was not at home during the time the complainant stated the assault took place.
The central legal question on appeal was whether the Crown needed to prove that the assault happened specifically between 10 and
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It was during cross-examination that she estimated the assault happened around 10-11 p.m. G.G. admitted to having had sex that day but claimed it occurred at 1 a.m. and was consensual.
In Canada, criminal defence counsel has an obligation to notify the Crown in advance of the trial that alibi evidence will be called. The rationale for this procedure is that the Crown should have the opportunity to investigate and possibly challenge the alibi.
However, the appeal court’s decision seems to be shocked that the usual procedure was not followed. It wrote, “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.”
The trial judge found the complainant to be completely credible and believed that she had refused her husband’s advance. The problem was that she probably confused the date of the attack on her. The trial judge relied on the decisions in R. v. B.(G.), [1990] 2 S.C.R. 30, and R. v. Tarnovsky, [1995] O.J. No. 968, leave to appeal refused, R. v. Tarnovsky (S.C.C.), [1995] S.C.C.A. No. 269. These decisions led the trial judge to conclude that “… [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.”
However, the Court of Appeal noted that even when a date is set out in an indictment and found to be inaccurate, a motion to amend will likely be granted provided the defence is not prejudiced. What the appeal court called 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, [1978] 1 S.C.R. 8, at p. 13. This allows the accused to make a full answer and defence.
Indeed, the appeal court noted that in offences against children, the law allows for flexibility regarding timing. Generally, the law recognizes that it is often “unrealistic” to determine the exact timing of the alleged offence: R. v. P. (M.B.), [1994] 1 S.C.R. 555. That is why charges are often drafted with terms like “on or about” at specific times and places. The exception occurs when the timing is material to proof of the offence: (i) when the date or date range is an essential element of the offence; and (ii) when the date or date range is “crucial to the defence.” This is established by the cases of B.(G.) and Tarnovsky.
The appeal court, citing R. v. P. (M.B.), noted that the complainant’s response to the defence’s question about the specific timing of the alleged sexual assault could not limit the Crown’s case to proof of that timing. This is particularly true where the charge alleged a sexual assault on the same date that the trial judge found the respondent had sexually assaulted the complainant.
As a result, the appeal court convicted G.G. and also dismissed G.G.’s appeal of his assault conviction, where he argued that the assault charge could not stand after he had been acquitted of the sexual assault charge.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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