The Law is not a simple subject, but nor is it complex in every instance. Clarity has been a priority for as long as Canada has been a country, but much of the time, that clarity is thwarted by the real world. To me, that statement brings two topics to the front and centre of my mind: Indigenous land rights and sexual assault cases. I’ll save the former for a rainy day, but the latter has been the subject of a number of recent Supreme Court of Canada decisions, R. v. G.G.1, most recently.
It’s a remarkably short decision all told, only fourteen paragraphs, which is about as short as they get unless they write nothing but an affirmation of the Court of Appeal’s logic and judgment. Really, they did little more than as much here, too. You can read it for yourself pretty easily, if you’d like.
The initial sentencing judge had entered an acquittal for the accused, despite being convinced that the sexual assault in question had indeed occurred, because he found that the Crown couldn’t prove the timing that they’d put forward. The victim in this case had put forward a time of 10–11 PM on April 7th for the assault, but the accused was able to produce a satisfactory alibi for the entire time period. Crucially, in this case, both parties had agreed that the sexual encounter in question had occurred, only differing on the exact time and whether it was consensual.
The Ontario Court of Appeal then overturned the sentencing judge’s acquittal on the grounds that the specific timing put forward by the witness, which was proven incorrect, was not the same as the timing put forward by the Crown, which was substantially broader. The Crown had instead alleged on all official documentation that the assault had taken place “on or about” (para. 2) April 7th, which lined up entirely with the timing put forward by the Defence. Given that the sentencing judge had already been convinced of the guilt of the accused, that one minor shift was more than enough to change the verdict.
The Supreme Court’s decision was substantively the same as the Court of Appeal’s, only differing by adding some context.
I’m coming away from reading all of this with three questions. Why was the charge listed as on or about a certain date? Should the date have to be more exact than that? Why did the Supreme Court bother writing anything more than just “we agree with the findings of the Ontario Court of Appeal?”
I’ll start backwards for this one. Why elaborate? This one really gets to the core purpose of the Supreme Court as an institution. We can open the question up a little. Why provide reasons for decisions at all? The answer is that it makes clear the logic of the precedent that they are solidifying for other courts to follow. Clarity is a goal of the law, but if every law or precedent could be cleanly applied across any potential cases, then there’d be no point to a common law system. In fact, there’d be no point in having a judiciary at all; we’d be able to skip the middleman and go straight from legislation to enforcement. The logic behind a precedent is much more important than any specific outcome. That logic, that process, can be transplanted in a way that a flat decision simply can not be. In the instant case, the Supreme Court reinforced the idea that confirming an exacting timeframe is not inherently essential if it is not necessary for accurately assessing whether or not the crime occurred. In such cases, a looser timeframe can be necessary. Really, it served to de-emphasize timing if other elements are in place.
That brings us nicely to the two other questions here. Why can the Crown put forward such broad timing? Is this not unfair to the accused? I think it bears repeating that, in the case at hand, both parties agreed that the sex in question did occur. In truth, they weren’t even that far off in their timelines. The victim claimed 10 PM, and the accused claimed 1 AM, both on April 7th, 2021. That’s a 21-hour distance. And, here’s the other thing: most people aren’t checking the clock while they’re having sex, and I would be willing to bet that even fewer people have the wherewithal to be paying attention to the time while they’re being sexually assaulted.
Make no mistake, sexual assault is an extremely traumatic occurrence; that means something. Trauma has a very real impact on the physiology of the body and on the psychology of memory formation. It warps the details of events and causes immense suffering to victims. It is not at all unusual for a victim to be unable to accurately account for the exact time of day that they were victimized. To insist that they must, in all cases, do so in court would only serve to victimize them further.
A lot of people in Canada get their understanding of the law as a subject from American media; it’s so pervasive that such a trend is unavoidable, but this can lead to some misconceptions about Canadian law. For one thing, in Canada, the core principles upon which our judicial system is based often matter more than the exact wording of a law. Now, I can’t speak to the actual American legal system, but American media certainly seems to imply a level of strict adherence to the letter of the law that is not the case here.
Sexual Assault cases already favour the accused pretty heavily just by virtue of how the circumstances of these crimes interact with the high burden of proof required of the Crown. The accused is already at an advantage; if the case boils down to a simple “he said, she said,” as it does fairly frequently, the accused is almost certain to win. To shift these proceedings even further in that direction would fundamentally undermine the effectiveness and responsiveness of our justice system, and that can not stand.
Oftentimes, the exact timing will matter. If the victim claims to have been assaulted at an event that the accused claims he could not have attended, then an alibi covering that time frame would be remarkably effective. This case was not like that; both parties agreed that the incident occurred, and the timing frankly did not matter that much in determining guilt.
The Rule of Law exists by adapting clarity and simplicity to the complexity of the real world. It brings order to chaos and mixes the two into something beautifully human. Today, we’ve scratched the surface of the complexities of sexual assault. Click here to see another angle on the subject.
Endnote
- R v GG, 2026 SCC 12.
