Reasons for Judgment — Binnie J. (LeBel, Deschamps, Charron, Rothstein and Cromwell JJ. concurring)
Binnie J. — The majority of the Court would allow the appeal, Fish J. dissenting. The main issue in this appeal is whether the trial judge erred in law in convicting the respondent, who was charged with sexual interference with his daughter, on the basis of a date other than the one referred to in the indictment.
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.
We consider the other arguments raised by the respondent in this case to be unfounded.
The appeal is accordingly allowed and the Court of Appeal’s decision is reversed. The trial judge’s verdict is restored.
English version of the reasons delivered by
Dissenting Reasons — Fish J.
Fish J. (dissenting) — According to the indictment in this case, which has to this date not been amended, the case the respondent had to meet was that he had touched the complainant for a sexual purpose [translation] “[b]etween 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 after September 22, 2002, the date the respondent purchased the futon on which the incident mentioned by the complainant allegedly took place. In these circumstances, and for the reasons given by Pelletier J.A. (with which Morissette J.A. concurred), I believe the respondent did not have the fair trial to which he was entitled. Accordingly, I would have dismissed the Crown’s appeal to this Court.