Date of allegation of offence irrelevant unless actual prejudice caused

In Her Majesty the Queen v. S.D., 2011 SCC 14 the accused was charged that he had touched the complainant for a sexual purpose “between April 1, 2002 and May 31, 2002”. At trial, the complainant testified that the respondent had touched her for a sexual purpose not during the period mentioned in the indictment but in the summer of 2001.

However, the trial judge convicted the respondent of touching the complainant for a sexual purpose neither during the period alleged in the indictment nor during the period mentioned by the complainant, but on another date in late 2002.

The Supreme Court said the judge acted properly:

The majority of the Court agree with the conclusion of Duval Hesler J.A., who dissented in the Court of Appeal, that [TRANSLATION] “trial fairness was not compromised . . . . The evidence accepted by the trial judge satisfied her beyond a reasonable doubt that the incident in question did in fact occur regardless of the exact time it took place” (para. 69). In our view, the defence was based entirely on a question relating to credibility. The respondent was in no way prejudiced.