Time is not an essential element

"Eschewing technicalities and promoting fair trials": Fairburn ACJO affirms that the date on the indictment is not an essential element the Crown must prove to secure a guilty verdict in R v GG, 2025 ONCA 574.

In other words, where a trier of fact is sure *that* the offence happened, but not sure *when* the offence happened, they must still convict the accused. Being off by a day is no defence. This principle ensures that criminal cases "are determined on their merits and not on mere technicalities": para 41.

There are two exceptions to this rule. First, in some cases the date is material to an essential element of the offence, as where a crime requires the Crown to prove that the complainant was under a specific age. Second, where the date is crucial to the defence in the sense that the defence has led a full alibi in answer to the charge. If the Crown says the offence happened on date X, and the accused as part of their cases shows that they were somewhere else on that date, it would be unfair to permit the Crown to alternatively argue that the offence happened on date Y.

Crucially, the alibi must be a full alibi that responds to the whole of the time period during which the alleged offence is said to have been committed. Where, as here, the complainant merely agrees in cross-examination that she thought the assault happened during a particular time, that does not elevate that particular time to an essential element of the offence the Crown must prove. The trial judge in this case was wrong to acquit the accused for an offence he believed had been committed because he thought the Crown had failed to prove that it happened within a particular hour of the day.