Time and Place
| This page was last substantively updated or reviewed January 2020. (Rev. # 96135) |
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Introduction
The elements of place and time are traditionally considered essential elements of proof for all offences and must be proven by the Crown beyond a reasonable doubt. These elements establish that the Court has both geographic and temporal authority over the matter and that the evidence is specific enough to meet the described offence found in the charging document--the information or indictment.
Place
The charging document, be it an information or indictment, will state a geographic region in which the alleged offence is to said to have been committed. For the court to be convinced beyond a reasonable doubt that it has authority over the matter, there must be evidence establishing that the offence alleged "occurred" in a specific county/region and province.
In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to their presence in the county, region, and province at the time of their investigations or observations.
- Burden of Proof
The Crown will normally have the burden of proving the place in which the offence occurred.[1]
- Places Defined
s. 2
...
"environment" means the components of the Earth and includes
- (a) air, land and water,
- (b) all layers of the atmosphere,
- (c) all organic and inorganic matter and living organisms, and
- (d) the interacting natural systems that include components referred to in paragraphs (a) to (c); (environnement)
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.
Amendment history
- ↑ R v Re The Queen and Smith (1974), 12 CCC (2d) 11 (NB CA)(*no CanLII links) , at p. 7 , per Hughes CJ ("At common law the place of an alleged offence was regarded as a matter of substance and hence an essential ingredient of all indictments. The burden of proving the place of the offence always lay upon the prosecutor and it was not upon an accused to disprove the place")
Time
The charging document will state a specific date or range of dates in which the offence is said to have occurred. For the court to be convinced beyond a reasonable doubt that the offence occurred within the specific date(s), there must be evidence establishing the date. Since the charging documents never get so specific as mentioning the actual time, in terms of hours and minutes, of the alleged offence, it is not required to be that specific. In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to the date and time of their investigations or observations.
The precision of time must only be to a point to ensure that the accused has the ability to make full answer and defence.[1]
- Failure to Prove Time
A failure to establish the exact time when an offence occurred is not critical to proving a case unless it is an essential part of the offence charged and prejudice may arise from variation in the time.[2]
The date on which an offence occurred, such as assault, mischief or uttering threats, is not normally an essential element as it does not mislead the defence on what the case is to meet.[3]
The time is not essential in the proof of the offence of sexual interference.[4]
- Variation of Time Between the Charging Document and the Evidence
Section 601(4.1) states:
601
[omitted (1), (2), (3) and (4)]
- Variance not material
(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to
- (a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or
- [omitted (b)]
[omitted (5), (6), (7), (8), (9), (10) and (11)]
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.
- ↑ R v Dritsas, 2012 MBQB 339 (CanLII), 286 Man R (2d) 191, per McKelvey J citing Douglas
- ↑
R v Douglas, 1991 CanLII 81 (SCC), [1991] 1 SCR 301, per Cory J
R v Jacques, 2013 SKCA 99 (CanLII), 12 WWR 415, per Richards CJ, at para 62 Justice Richards CJS cites Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. (Aurora: Canada Law Book, 1987) ("From time immemorial, a date specified in an indictment has never been held to be a material matter. Thus the Crown need not prove the alleged date unless time is an essential element of the offence or unless there is a specified prescription period...")
See also Amendments to Charges#Amendment of Time, Date, or Location of Offence - ↑ R v McGee, 2014 ONCA 358 (CanLII), OJ No 2122, per curiam
- ↑ R v KWG, 2014 ABCA 124 (CanLII), 307 CCC (3d) 537, per curiam
Computation of Time
Section 2 of the Code defines "day" and "night" as:
2
...
"day" means the period between six o’clock in the forenoon and nine o’clock in the afternoon of the same day;
...
"night" means the period between nine o’clock in the afternoon and six o’clock in the forenoon of the following day;
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.
Section 29 of the Interpretation Act sets any reference to "time of day" as meaning "standard time".
Sections 26 to 28 address the computation of time:
- Time limits and holidays
26 Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.
R.S., 1985, c. I-21, s. 26; 1999, c. 31, s. 147(F).
- Clear days
27 (1) Where there is a reference to a number of clear days or “at least” a number of days between two events, in calculating that number of days the days on which the events happen are excluded.
- Not clear days
(2) Where there is a reference to a number of days, not expressed to be clear days, between two events, in calculating that number of days the day on which the first event happens is excluded and the day on which the second event happens is included.
- Beginning and ending of prescribed periods
(3) Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day.
- After specified day
(4) Where a time is expressed to begin after or to be from a specified day, the time does not include that day.
- Within a time
(5) Where anything is to be done within a time after, from, of or before a specified day, the time does not include that day.
R.S., c. I-23, s. 25.
- Calculation of a period of months after or before a specified day
28 Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by
- (a) counting forward or backward from the specified day the number of months, without including the month in which that day falls;
- (b) excluding the specified day; and
- (c) including in the last month counted under paragraph (a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month.
Calculating Notice Periods
- Expert Evidence (30 days): Time and Date Calculator - to calculate the due date for notice, input the first day of trial and subtract 31 days to ensure 30 clear days notice.
- Business Records (7 days): Time and Date Calculator - to calculate the due date, input the date "of its production" and subtract 8 days to ensure 7 clear days notice.
- Defence Re-Election to Provincial Court (< 15 days): Time and Date Calculator - to calculate the due date, input the date of the order for committal and add 14 days to ensure less than 15 clear days notice.
- Defence Re-Election to Supreme Court (14 days): Time and Date Calculator - to calculate the due date, input first day of trial and subtract 15 days to ensure 14 clear days notice.
NB: this time limit is subject to the "Holiday Rule" that moves the date to the next non-holiday day (see s. 26 of Interpretation Act)