The SCC issued reasons on Friday in G.G. v. His Majesty the King, after dismissing the appeal in March
The Supreme Court of Canada upheld an Ontario man’s sexual assault conviction on Friday even though he presented an alibi, ruling in a unanimous decision that the Crown was not required to prove the exact time the assault occurred.
The high court first dismissed the man’s appeal of his conviction in March, issuing an oral judgment from the bench after the parties presented their arguments at a hearing. Friday’s 11-page update in G.G. v. His Majesty the King offers reasons for the ruling and is not attributed to any particular justice.
Myles Anevich, a partner at Brauti Thorning LLP who represented the accused, says he was concerned that the SCC “would undermine the ability to raise alibi defences at all” following the oral judgment, which did not explain why the high court ruled the way it did.
However, the written reasons seem “fairly limited to an application of the existing [19]90s Supreme Court precedents and [R. v.] Tarnovsky to the facts of this case,” Anevich says. “I think the Supreme Court has left the issue open for the actual ability to apply an alibi in an ‘on or about’ case when there is a straight denial of the act ever occurring.”
Criminal charges typically indicate that an offence occurred “on or about” a specific date or range of dates.
The accused, whom the court refers to as G.G., was charged with sexually assaulting his spouse around April 7, 2021. According to the complainant, from whom G.G. is now separated, the assault occurred around 10 or 11 pm that evening. She claimed that after the assault, they slept together in their marital bed for the last time before G.G. moved out the next morning.
G.G. acknowledged sexual intercourse with the complainant, but said the encounter was consensual. He claimed the encounter occurred 21 hours earlier, at 1 am on April 7. He also said he left their home at 9 pm that evening to stay at his girlfriend’s home, about an hour before the complainant estimated he assaulted her.
The trial judge presiding over the case believed G.G. assaulted the complainant. However, because G.G. had an alibi that contradicted the complainant’s claim that he assaulted her around 10 or 11 pm on April 7, the judge acquitted G.G.
The Ontario Court of Appeal disagreed, ruling that the trial court had erred by requiring the Crown to prove the timing of the offence to such a high degree of specificity. The appellate court set aside the acquittal and convicted G.G. of sexual assault.
G.G. appealed, but the SCC sided with the appellate court. While criminal charges typically estimate the approximate time of an alleged offence, the Crown is generally not required to establish the offence’s exact timing, the high court said.
However, the date or time of an offence is critical to the defence in cases where the accused presents an alibi for the same time period that the Crown alleged the offence took place. In such cases, the SCC said, “it would be unfair for the Crown to undermine the alibi by shifting to a different time frame and claiming that the offence was committed at a different time.”
The high court said it must take a holistic and contextual approach to deciding whether the Crown unfairly shifted the time frame, rather than focusing narrowly on when a complainant thinks an offence occurred.
This is particularly critical in sexual assault cases, the high court said, because “it is not uncommon for complainants to be uncertain or honestly mistaken about the specific date or time the alleged offence took place.”
The SCC noted that in this case, the complainant’s estimate that the sexual assault occurred between 10 and 11 pm on April 7 was elicited during cross-examination by G.G.’s counsel. The Crown, therefore, did not shift the alleged time frame of the offence; “put simply,” the high court said, “the Crown never claimed that it did occur at that time.”
Herman Gill, a managing partner at Gill & Dhillon Law LLP who represented G.G. alongside Anevich, agreed that the impact of Friday’s decision is limited in scope. He noted that at trial, they had argued that the parties provided sometimes differing descriptions of the sexual acts involved in the assault. However, the high court did not accept those arguments.
The Ontario Attorney General’s office did not immediately respond to a request for comment.
