On March 20, 2026, the Supreme Court of Canada dismissed the following appeal with reasons to follow. Below are those reasons:
Criminal Law: Sexual Assault; Alibi
R. v. G.G., 2026 SCC 12 (41963)
“The accused was charged with sexually assaulting the complainant, who was his spouse, on or about April 7, 2021. The accused and the complainant agreed that sexual intercourse occurred on April 7, after which they slept in the marital home for the last time together; however, their evidence diverged on consent and timing. The accused claimed that sexual intercourse occurred early in the morning at approximately 1:00 a.m., whereas, on cross-examination, the complainant stated the assault occurred later that night at approximately 10:00 or 11:00 p.m. The accused advanced an alibi, asserting that he had left the marital home around 9:00 p.m. on April 7, before the time the complainant alleged the sexual assault occurred.
The trial judge found that the accused did sexually assault the complainant, but acquitted him. He reasoned that because the accused presented alibi evidence to rebut the complainant’s assertion as to the time of the assault, the Crown needed to prove that the assault occurred at that time, which it failed to do. The Court of Appeal allowed the Crown’s appeal, set aside the acquittal and substituted a conviction, concluding that the Crown did not have to prove the timing of the offence to that level of specificity.”
The SCC (9:0) dismissed the appeal.
The Court wrote as follows (at paras. 7-13):
Before this Court, the appellant argues that because the complainant said the sexual assault occurred around 10:00 or 11:00 p.m. on April 7, and he presented an alibi covering that entire period, the Crown was required to prove that the offence occurred at that time. He further argues that the Court of Appeal erred in substituting a conviction because, contrary to this Court’s direction in R. v. W. (D.), [1991] 1 S.C.R. 742, the trial judge did not independently assess his credibility or consider whether his evidence raised a reasonable doubt. On this basis, the appellant contends that the trial judge’s reasons were inadequate to support a finding of guilt.
We would not give effect to the appellant’s arguments.
The Court of Appeal correctly held that the Crown did not have to prove that the sexual assault occurred around 10:00 or 11:00 p.m. on April 7. Typically, an information or indictment will allege that an offence was committed “on or about” a particular date or range of dates. Within that time period, the Crown is generally not required to establish the exact timing of the offence. The accused need only receive enough information to be “reasonably informed of the transaction alleged against him” (R. v. Côté, [1978] 1 S.C.R. 8, at p. 13). However, the general rule that proof of timing is not required has two exceptions: (1) where the date or time is “an essential element of the offence”; and (2) where the date or time is “crucial to the defence” (R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 49-53).
The date or time of the offence becomes “crucial” to the defence if the accused raises an alibi for the time period alleged by the Crown (B. (G.), at pp. 51-52). In such cases, 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 (see R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Tarnovsky (1995), 98 C.C.C. (3d) 168 (Ont. C.A.)). Whether the Crown has shifted the alleged time frame in a manner that undermines trial fairness must be assessed holistically and contextually, rather than by focussing narrowly on when a witness said they think the offence may have taken place. This is especially important in sexual assault cases, where it is not uncommon for complainants to be uncertain or honestly mistaken about the specific date or time the alleged offence took place.
We agree with the Court of Appeal that, in this case, the time period alleged by the Crown concerned the last sexual encounter between the appellant and the complainant on or about April 7, which they agreed happened on the last night they slept in the marital home together. This period was defined by the language of the charging document, the substance of the complainant’s evidence, the evidence elicited by the Crown, and the Crown’s position at trial, taken together. In these circumstances, the complainant’s estimate of when the sexual assault occurred, elicited by the defence in cross-examination, did not narrow the Crown’s case to that specific period. As a result, the Crown did not shift the alleged time frame or deny the appellant the right to make full answer and defence by maintaining that it was not required to prove that the sexual assault occurred around 10:00 or 11:00 p.m. on April 7. Put simply, the Crown never claimed that it did occur at that time.
Finally, we agree that substituting a conviction was the appropriate remedy. Under s. 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, an appellate court can set aside an acquittal and enter a conviction where “the trial judge’s findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt” (R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 50). That standard was met in this case.
But for his legal error on timing, the trial judge would have convicted the appellant on the sexual assault charge. As stated, he made an explicit finding that the appellant sexually assaulted the complainant as she described. Read as a whole, his reasons were sufficient to support that finding. They adverted to the burden of proof and the principles from W. (D.), and showed that the trial judge rejected the appellant’s evidence because he accepted the complainant’s contrary account beyond a reasonable doubt. He explained why he believed the complainant, emphasizing the temperance, detail, and consistency of her testimony. He also rejected defence arguments aimed at undermining the complainant’s credibility, concluding that he was “completely satisfied that she is not lying about the sexual assault or when it occurred” (A.R., vol. I, at p. 28). In the circumstances, no further explanation was required for rejecting the appellant’s evidence (see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 13-19 and 26-28).”