Sexual Assault: The Supreme Court of Canada Rules — A Victim Mistaken About the Hour Does Not Lose Her Credibility

The accused was charged with sexually assaulting his spouse “on or about April 7, 2021.” Both parties agreed on one fact: on April 7, there had been a last sexual encounter between them, before the accused moved out the next day.

They disagreed on the nature and the time of that encounter:

At trial, the judge faced a difficult decision. He explicitly believed the complainant and concluded that “the defendant had sexually assaulted the complainant in the manner described by her.” But he then acquitted the accused on a purely technical basis: because the accused had presented an alibi covering the hour indicated by the complainant (10 or 11 p.m.), the Crown, in his view, had to prove beyond a reasonable doubt that the assault had taken place precisely at that time. It had failed to do so.

The Ontario Court of Appeal allowed the Crown’s appeal and substituted a conviction for the acquittal. The accused appealed to the Supreme Court.

To understand this decision, one must first understand a fundamental rule of Canadian criminal law: as a general rule, the Crown is not required to prove the exact time at which an offence was committed.

Indictments are drafted with the phrase “on or about,” followed by a date or a range of dates. This means that the prosecution is not locked into a precise hour in order to establish its case.

This rule is logical. Requiring the Crown to prove the exact hour of an offence would make prosecutions nearly impossible, especially in cases where the victim’s testimony is the principal evidence. Nobody checks their watch at the moment of an assault.

But the general rule has two exceptions, established in R. v. B. (G.) in 1990:

It was on this second exception that the trial judge relied to acquit the accused. Since the accused had an alibi for 10 or 11 p.m., the time of the offence became critical, and therefore the Crown had to prove it with precision.

The Supreme Court has just ruled: that was an error.

The Supreme Court unanimously dismisses the appeal and confirms the conviction. Its reasoning is clear: the Crown never claimed that the assault had taken place precisely at 10 or 11 p.m.

The time period alleged by the Crown — the one it had the obligation to prove — related to an identifiable event: the last sexual encounter between the accused and the complainant, which took place on the last night they slept together in the marital home. Both parties acknowledged this event. They only disagreed on its nature and on its precise time.

The fact that the complainant, during cross-examination, estimated the hour at “ten, eleven p.m.” did not have the effect of narrowing the Crown’s theory to that precise window. It was a witness’s estimate, not a modification of the indictment.

The Court emphasizes: whether the Crown has modified the alleged time period in a way that compromises the fairness of the trial must be assessed holistically and contextually, rather than by focusing narrowly on the moment at which a witness believes the offence may have occurred.

In other words: one looks at the evidence as a whole, not at an isolated hourly estimate given in cross-examination.

The alibi remains a legitimate and powerful defence. When an accused credibly demonstrates that he was elsewhere during the period in which the offence was allegedly committed, this may raise a reasonable doubt and lead to an acquittal.

But the alibi must relate to the time period alleged by the Crown, not simply to an hourly estimate given by the complainant during cross-examination. In this case, the Crown alleged a specific and identified event: the last sexual encounter between the accused and the complainant on or about April 7, 2021, which took place on the last night they slept together in the marital home. Both parties agreed that this encounter took place. They disagreed only on its consensual nature and on its precise time.

The complainant’s hourly estimate (10 or 11 p.m.) given in cross-examination did not have the effect of narrowing the Crown’s theory to that precise window. The Crown never claimed that the assault had taken place precisely at that moment. The Court concludes that the Crown neither modified the alleged time period, nor deprived the accused of his right to make full answer and defence.

On a practical level, this decision is of considerable importance for victims of sexual assault. The Court recognizes a fundamental human reality: a person who experiences trauma is not required to remember with precision the hour at which it occurred.

Too often, victims hesitate to come forward or doubt their own credibility because they cannot recall every temporal detail with precision. Was it 10 p.m. or midnight? Tuesday or Wednesday? April 6 or April 7? These uncertainties, perfectly natural in the context of trauma, have long been used to discredit complainants.

The Supreme Court now confirms that the justice system must be able to account for this reality. A person describing an assault may be mistaken in good faith about the hour, without that mistake discrediting her testimony or causing the prosecution to collapse.

This is not a weakening of the rights of the accused. The accused retains all defences: he may contest consent, challenge the general credibility of the complainant, and present an alibi that covers the alleged time period. But he cannot escape through the narrow door of an approximate hourly estimate.

The second question decided by the Supreme Court is technical but important: did the Ontario Court of Appeal have the power to set aside the acquittal and directly convict the accused, rather than ordering a new trial?

The answer lies in subparagraph 686(4)(b)(ii) of the Criminal Code. A court of appeal may enter a conviction in place of an acquittal when the trial judge’s findings of fact support, at law, a finding of guilt beyond a reasonable doubt. This is known as the R. v. Katigbak (2011) test.

In this case, the trial judge had explicitly concluded that the accused had sexually assaulted the complainant. He had believed her. He had rejected the defence arguments that sought to undermine her credibility. The only reason he had acquitted was his error of law regarding the required precision of the time of the offence.

In these circumstances, the Supreme Court confirms that the Court of Appeal had every power to substitute a conviction — rather than send the parties back to a new trial, with all the delays and revictimization that this implies.