R. v. EGC, 2023 MBCA 74, SEPTEMBER 1, 2023.

FACTS:  The accused was convicted of the offence of sexual interference.  The information alleged that the offence took place on May 6, 2019.  The trial judge found that the sexual touching occurred in July or August of 2019.  The accused appealed from conviction, arguing that the discrepancy as to when the offence took place rendered the guilty verdict unreasonable.

HELD:  The appeal was dismissed.  The Manitoba Court of Appeal concluded as follows (at paragraphs 11 to 13):

Apart from whether C.C. was under age 16 in relation to the sexual interference count (which was not in dispute), the timing of the sexual touching was neither an essential element nor crucial to the defence, such that any variation between the Information and the evidence could be addressed by an amendment of the Information pursuant to section 601(4.1) of the Code to conform to the evidence (see R v Storheim (SKW), 2015 MBCA 14 at para 32).

Additionally, as was noted in R v P (MB), [1994] 1 SCR 555, in a case involving a sexual offence against a child, “absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary” (at p 567).

Here, the trial judge displayed appropriate sensitivity to assessing childhood perceptions of C.C. to peripheral matters such as time or location.  Given that the time parameters of the sexual touching were established by other evidence at the trial—from the accused’s evidence as to when he lived at the residence in question and when C.C. visited, which the trial judge accepted—the verdicts were reasonable (see R v SD, 2011 SCC 14; and Storheim at paras 30-31).