WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
S.K.J.
Before Justice C. K. Assié
Heard on February 4 and 5, 2026
Reasons for Judgment released on March 26, 2026
Ivan Boiarski counsel for the Crown
Subrahmanian Sreejith counsel for the accused S.K.J.
ASSIÉ J.:
1The defendant is charged with sexually assaulting his wife on three occasions and uttering a threat to cause her death or bodily harm. This judgment determines whether the Crown has proven those charges beyond a reasonable doubt.
2I begin by summarizing the evidence, followed by the governing legal principles, my analysis, and concluding observations about aspects of counsel conduct that arose during the trial.
3Beginning with the evidence, the complainant was 29 years old at the time of trial and was born in India. She came to Canada when she was five years old. She works as a civil servant and lives with her parents. She met the defendant on a matrimonial site while he was still living in India. Their arranged marriage took place in India in July 2022. The defendant arrived in Canada in June 2023 and moved in with the complainant at her parents’ home in the Region of Peel. Both shared her bedroom. Shortly after arriving, he found employment in Markham.
4The complainant testified that the relationship was initially positive. However, friction developed when the defendant expressed a desire to move closer to work due to the long commute. The complainant preferred to remain living with her parents to save money toward purchasing a home.
5The first alleged sexual assault occurred on either September 7 or 8, 2023. The complainant stated she was resting on their bed because she felt sick and was menstruating. She testified the defendant wanted to have sex, she told him she did not, and he nonetheless got on top of her, removed her pants, and vaginally raped her. She repeatedly said “No,” but he continued. Afterward, he flushed the condom down the toilet, went downstairs for a snack, and returned to bed. She recalled the date because she tracked her menstrual cycle on her phone.
6She described experiencing physical pain and emotional shock, stating she did not expect the defendant to force himself on her.
7The second alleged incident occurred in October 2023. She could not recall the exact date but explained she had provided it to police based on her menstrual-tracking records. Again, she said she was menstruating and told the defendant she did not want sex. As before, she testified that she was lying on the bed when he got on top of her, removed her pants, and vaginally raped her. Afterward, he flushed the condom and went downstairs for a snack, and returned to their bed.
8On December 8, 2023, the defendant moved out of the complainant’s parents’ home to live closer to work. The complainant continued living with her parents. The defendant would still visit on weekends, though not every weekend.
9The third allegation relates to the threat charge and occurred on December 24, 2023. The complainant testified that while they were watching a movie in her bedroom during one of his visits, the defendant turned to her and stated that if he had a gun, he would kill her and go back to India. She described no preceding argument. She said this caused her to flee to the washroom and cry. She testified she took the threat seriously.
10The complainant further testified that on April 7, 2024, she looked through the defendant’s cellphone and discovered communications with another woman. She suspected an affair, though the defendant maintained the woman was only a friend. She said this led her to believe the defendant married her for immigration purposes.
11The complainant stated that on April 20, 2024, during one of the defendant’s visits, she told him she would not have sex with him until they lived together again. While she was lying on the bed, she said the defendant got on top of her, removed her pants, and vaginally raped her despite her expressing that she did not want sex. As with the earlier incidents, she said he flushed the condom, went downstairs for a snack, and returned to bed before leaving the following morning for Markham.
12On April 21, 2024, the defendant left the complainant’s parents’ home and did not return. He told the complainant he wanted a divorce. The complainant initially resisted the divorce and attempted to reconcile, even offering to rent an apartment closer to his workplace, but the defendant remained firm. Eventually, she agreed to a divorce.
13On September 7, 2024, the complainant reported the incidents to police.
14The complainant was cross-examined on her actions–and inactions–during and after the sexual assault, which quite frankly, elicited tropes about sexual assault victims and what would be expected if the rape was “real.” The complainant confirmed that though her parents were home during the rapes, she did not scream for help; the complainant confirmed that though she could have kicked him out of the house and prevented him from returning, she maintained a relationship with him; the complainant confirmed that she did not suffer physical injuries other than pain during the rapes; the complainant confirmed that she did not seek medical attention; the complainant confirmed that she did not immediately call the police or report her husband’s rapes to anyone until a year after the first incident; and the complainant continued to want to have a relationship with her husband.
15The complainant explained that her delayed disclosure was due to embarrassment and shame. She also said she is a private person who requires time to open up to others. She stated that once she finally told her parents, they encouraged her to report the allegations to police.
16The defendant testified and denied all allegations of sexual assault and threatening death. He maintained that the complainant fabricated the allegations after he told her he wanted a divorce and refused to reconcile.
17Neither the complainant nor the defendant was meaningfully impeached in cross‑examination, and each provided evidence that was internally consistent.
The Burden of Proof and General Criminal Law Framework
18I now turn to the governing legal principles, which frame the assessment of the evidence in this case.
The Presumption of Innocence
19At the outset of a criminal trial, the accused is cloaked with the presumption of innocence. This presumption remains constant throughout the trial and is displaced only if the Crown proves guilt beyond a reasonable doubt.1
Reasonable Doubt
20The standard of proof beyond a reasonable doubt applies to the ultimate issue of guilt and must not be applied piecemeal to individual items of evidence.2
21A reasonable doubt is grounded in reason and common sense. It is not imaginary or frivolous, does not require proof to absolute certainty, and must be logically connected to the evidence—or the absence of evidence—before the court.3
22It is essential to recognize that the defence bears no burden to establish foundational facts to support an inference of innocence.4 Nor is the accused required to present evidence to provide a basis for reasonable doubt.5 The accused may rely on any aspect of the case—whether the presence or absence of evidence—to raise a reasonable doubt.
Credibility and Reliability Assessments
23In many criminal trials, including this one, credibility and reliability must be assessed.
24Credibility concerns a witness’ honesty; reliability concerns the accuracy of the witness’ recollection. A witness may appear credible yet provide unreliable evidence if their ability to observe, recall, or recount events is compromised.6
25One effective method to evaluate credibility is by examining inconsistencies between a witness’ in‑court testimony and their prior statements. These may arise within the witness’ own evidence or between prior and current accounts. Some inconsistencies are minor; others relate to material issues. A significant inconsistency—one an honest witness is unlikely to be mistaken about—may indicate carelessness with the truth and warrant closer scrutiny.
26When assessing testimony, I may accept all, part, or none of a witness’ evidence and may assign different weight to different parts of it.
27It is important to underscore that a finding of guilt cannot rest on a mere preference for the complainant’s evidence over that of the accused. Criminal trials are not credibility contests. A conviction may only follow if, after applying the proper legal framework, the Crown has proven the offence beyond a reasonable doubt.
28The term “motive to fabricate” is a neutral way of expressing that a witness may have a reason to lie.7 The defence bears no burden to establish such a motive.8 They need not demonstrate animus, bias, or any particular motive.9
29The presence or absence of a motive to fabricate remains a relevant factor when assessing credibility.10 However, where no motive is apparent—and the Crown has not proven the absence of one—it is improper to infer the truthfulness of the complainant solely from the absence of motive.11 There is a meaningful distinction between “no proven motive” and a “proven absence” of motive.12
The Guidance of W.(D.)
30When credibility is in issue, the “W.(D.)” framework guides how trial judges assess conflicting evidence against the standard of proof.
31The steps are:
(1) If you believe the evidence of the accused, you must acquit.
(2) If you do not believe the accused but are left in reasonable doubt by his evidence, you must acquit.
(3) Even if his evidence does not raise a reasonable doubt, you must consider whether the Crown’s evidence, which you accept, proves guilt beyond a reasonable doubt.
32In assessing the criminal standard of proof beyond a reasonable doubt, trial judges have a responsibility to consider the entire record at trial and to resolve material issues relevant to the credibility analysis. This framework ensures that the ultimate focus remains on whether the Crown has discharged its burden in light of the whole of the evidence.
Analysis
33I begin with the issue of “recent fabrication,” as it arose during the complainant’s testimony and directly affected the admissibility of certain evidence.
34During examination‑in‑chief, the Crown began eliciting whether the complainant had disclosed her allegations to anyone. I intervened to ask Crown counsel whether it anticipated that the defence would allege recent fabrication. The Crown indicated it did not. I then asked defence counsel whether he intended to advance such a theory. Defence counsel unequivocally stated that he was not alleging recent fabrication.
35Given that answer, I asked the Crown to explain the relevance of the complainant’s prior disclosure. Crown counsel appropriately conceded it lacked relevance absent a recent fabrication allegation and moved on.
36During cross‑examination, however, it became apparent that defence counsel was alleging recent fabrication. I again intervened and asked defence counsel to explain the contradiction between his earlier statement and the theory emerging through his questioning. Defence counsel responded that he did not understand the meaning of “recent fabrication” or the rules that apply when such an allegation is made.
37This was concerning. Counsel appearing in sexual‑assault trials must understand core evidentiary concepts. They must also avoid giving answers to the court unless they understand the question posed.
38Because defence counsel did, in fact, raise recent fabrication, I permitted the Crown to re‑examine the complainant to respond. This re‑examination revealed that when the defendant allegedly threatened to kill her on December 24, 2023, the complainant wrote a memo in her phone recording: “On December 24th, 2023, [the defendant] said between 8:00pm and 8:14pm that he would kill me with a gun and go back to Panikkar,” and signed her name. She explained she made the note in case something happened to her so authorities would know to suspect her husband. She still had the note and was able to provide a copy, which included the meta-data establishing that she made the note on December 24, 2023.
39She further stated she had shown the note to the police during her video interview. However, the police did not request a copy, and therefore it was never disclosed to the defence.
40This gave rise to a significant disclosure problem. The defendant had already elected to be tried in the Ontario Court of Justice, and he made that election without the benefit of this information. Once police learn of potentially relevant evidence–such as a contemporaneous note–they are required to take reasonable steps to obtain it.13
41I canvassed with defence counsel how they wished to proceed. A mistrial was one possibility. Another was excluding the physical note while permitting the complainant’s oral testimony about having written it, solely for the limited purpose of rebutting the allegation of recent fabrication. Defence counsel requested exclusion of the physical note—and Crown counsel agreed. I granted the request. I have not relied on the physical note as evidence neutralizing the allegation of recent fabrication originating from the defendant’s request for a divorce.
42This issue could have been avoided had: (1) the interviewing officer requested the note; (2) the Crown recognized the obligation to attempt to obtain it; or (3) defence counsel understood that disclosure issues must be addressed before making an election. Each actor bears responsibility for the failure.
43I turn next to the Crown’s submission that the defendant’s evidence should be rejected at the first step of the W.(D.) analysis. I acknowledge that where an accused gives a blanket denial, the opposing party faces an uphill challenge in impeachment. I asked the Crown to identify which aspects of the defendant’s testimony were so inherently implausible that I should disbelieve him. The Crown relied on two points: (1) his inability to recall events on specific dates; and (2) his at times rambling manner of testifying.
44In cross‑examination, the Crown focused heavily on the alleged threat from December 24, 2023. The Crown asked the defendant what he did that day and whether he watched a particular movie. He was unable to recall whether he saw the movie, or, if he had, whether it was on December 24. He also could not recall whether he had dinner with the complainant’s family or what his activities were that day.
45Many of the Crown’s questions—and the tone accompanying them—were unfair and reflected a lack of cultural awareness. The Crown repeatedly suggested that Christmas is the “biggest holiday of the year” and therefore memorable to all. However, December 24, 2023, was more than two years before the defendant testified, and more importantly, it is incorrect to assume that everyone celebrates Christmas. The defendant is not Christian. Expecting him to recall Christmas Eve with special clarity is no more reasonable than expecting the Crown to recount what they did on Eid al‑Fitr, Vesak, or Rosh Hashanah. For those who do not observe such holidays, these dates are indistinguishable from any other day of the year.
46The Crown also asked the defendant what he did on the specific dates the complainant alleges he raped or threatened her. He testified that he could not recall what happened on those dates or what was said. He consistently maintained, however, that he did not threaten or rape his wife. The Crown suggested that if he could not recall his actions, he could not possibly deny the allegations. Respectfully, that submission is untenable. A person may be unable to recount routine events from a specific date yet remain certain they did not commit a serious offence on that date. If asked what occurred on Thursday, July 6, 2023, the Crown would likely be unable to recall the details of their day—but would, no doubt, be certain they did not commit murder or call in a bomb threat. A failure to recall ordinary events does not undermine a firm denial of criminal conduct.
47As for the Crown’s reliance on the defendant’s sometimes rambling answers, demeanour evidence must be approached with caution. What may appear evasive can equally reflect nervousness, particularly when a witness is asked about minute details of movies he may or may not have watched years earlier. Furthermore, although the defendant testified in English, it was apparent from his syntax and accent that English is not his first language. In my assessment, he generally answered questions honestly and directly. When a question was precise, he responded clearly; when the question was ambiguous, he attempted to answer it as best he could.
48Accordingly, I cannot reject the defendant’s evidence outright.
49I must still assess the complainant’s testimony. As the Court of Appeal explained in R v J.J.R.D., an accused’s evidence may be rejected—and a conviction entered—even where it contains no obvious flaws, so long as there are clear reasons to accept the Crown’s evidence beyond a reasonable doubt.14
50I reviewed the trial transcripts. The complainant’s testimony‑in‑chief spans only eleven pages. In that brief space, she addressed her background, the defendant’s background, the progression of their relationship, three alleged instances of marital rape, and one alleged threat to cause death. This is, by any measure, a remarkably brief examination.
51Civilian witnesses often struggle to discern which details are significant in a criminal trial. Some may recount events sparingly. It falls to counsel to elicit the details necessary for a meaningful credibility and reliability assessment. Even the most skilled examiner cannot always overcome a witness’ limitations. But counsel must at least attempt to draw out sufficient detail, because it is difficult for the court to place meaningful weight on bare assertions.
52The complainant’s evidence had a ring of truth. She did not embellish or malign the defendant beyond the allegations themselves. I found her sincere and believe she was likely telling the truth. However, the brevity of the examination left significant gaps. As presented, the evidence did not provide the degree of detail necessary for me to accept her account of the sexual assaults beyond a reasonable doubt.
53Turning to the threat allegation, I have not relied on the physical note in determining whether the Crown met its burden. I have considered only the complainant’s oral evidence that she made a contemporaneous note, and solely for the limited purpose of rebutting the defence allegation of recent fabrication. “Recent fabrication” refers to a claim that a witness has invented or altered their account at a particular time for an improper motive—such as revenge, avoidance of consequences, or gaining advantage in family or immigration matters. Evidence of prior consistent statements may be admitted for the limited purpose of showing that the witness’ story did not originate after the alleged motive arose. Such statements are not admissible for their truth, but only to rebut the suggestion that the complaint was recently contrived.
54I am unable to conclude that the Crown has proven the threat allegation beyond a reasonable doubt. The complainant testified that, without any prior dispute, the defendant suddenly uttered the threat while they were watching a movie. Without some explanation for such a spontaneous and extreme statement, I cannot dismiss the defendant’s denial.
55Before concluding, I must comment on aspects of both counsel’s cross-examinations and submissions. Some of the submissions were so regressive that they appeared untethered from contemporary sexual‑assault law.
56The Crown submitted that the complainant’s behaviour was “consistent with sexual assault victims generally” because she did not scream and did not disclose immediately, and therefore she should be believed.
57The defence submitted the opposite: that the complainant’s behaviour was inconsistent with a “real” sexual‑assault victim because she had no injuries, did not scream, delayed reporting, maintained contact with the defendant, wished to reconcile, and lacked corroboration. When I pointed out that none of those factors are inconsistent with genuine sexual‑assault responses, defence counsel suggested that such reasoning may apply to “disadvantaged women,” but not to the complainant, who he argued was part of an “empowered class” because she had lived longer in Canada than in India.
58I include the following exchange with defence counsel verbatim because any summary would risk understating its inappropriateness:
THE COURT: So, presumably if that's the catalyst, if that's the spark that leads her to make up these allegations, presumably, that spark would be close in time to going to the police and making up those allegations. Right?
S. SREEJITH: I don't know why, you know, after September it took...
THE COURT: Okay.
S. SREEJITH: ...but still it affects her credibility. That's my understand [sic] and this is not a, an allegation by a stranger, it's a husband-wife relationship. So, you know, anyone can say, you know, ‘Last year I didn't consent.’ How it works? [sic]
THE COURT: How it works is a person comes and testifies under oath, provides evidence. That becomes evidence. That's how it works. Their testimony is challenged by cross examination. I don't know how else to explain it. That's how it works.
S. SREEJITH: But her evidence is not an independent evidence. She's the complainant in this. And also, like, you know, just because of, you know, solely relying on her evidence, how can he be convicted because this has to be proved in a certain standard beyond reasonable doubt standard? So just a statement by the victim, you know, that....
THE COURT: Right. So, there should be corroboration is what you're saying? Is that correct?
S. SREEJITH: Yes.
THE COURT: Okay.
S. SREEJITH: So, what I say is that....
THE COURT: Let me stop you there. Corroboration is not required in a sexual assault. You understand that? It is not required. I do not understand how you can make that submission when it is the exact opposite.
S. SREEJITH: But will, will be - will it meet the beyond reasonable doubt standard?
THE COURT: It can, absolutely. An uncorroborated statement by a complainant about a sexual assault in which there are no injuries, can, in fact, raise to the level of proof beyond a reasonable doubt. A cursory case law research would demonstrate thousands of cases in which uncorroborated accounts of women who have been - who claim to have been sexually assaulted, were accepted as proven beyond a reasonable doubt.
S. SREEJITH: But the, but the circumstances would have been different. That's probably with a stranger. In this case...
THE COURT: Oh, my God.
S. SREEJITH: ...it's between husband and wife.
59I include the passage above because the submissions made were so shocking and wholly inappropriate for a courtroom in 2026.
60In assessing the evidence in a sexual‑assault prosecution, the court must take care to avoid reliance on myths, stereotypes, or ungrounded assumptions about how victims are expected to behave. Canadian jurisprudence has long recognized that sexual assault is a form of gender‑based violence and that stereotypical expectations of victim behaviour undermine both substantive equality and the search for truth.15 The Supreme Court has expressly rejected “rape mythologies,” including assumptions that a complainant who delays reporting, maintains contact with the accused, or fails to physically resist is less credible or more likely to have consented.16 These prohibited stereotypes impose unfair and irrelevant expectations on complainants and have historically obstructed the proper administration of justice; courts have emphasized that such logic “hinders the search for truth” and improperly burdens complainants.17 This prohibition against reliance on myths and stereotypes carries a distinct legal status, aimed specifically at remedying entrenched inequality experienced by sexual‑assault victims and protecting their dignity during the trial process.18
61However, while stereotypes are impermissible, trial judges may still employ “common‑sense reasoning grounded in evidence and human experience,” provided such reasoning does not slip into prohibited assumptions about sexual‑assault complainants.19 What remains essential is that credibility assessments be based on the actual evidence, analysed in accordance with the governing legal principles such as W.(D.), rather than on preconceived views of how a “real” victim would or should behave. This approach maintains both the fairness of the trial and the integrity of the fact‑finding process.
62Defence counsel’s submissions reflected flagrant reliance on stereotypes about what a “real victim” should look like and demonstrated a fundamental misunderstanding of how to defend an accused in a sexual‑assault case.
63The complainant’s evidence had a ring of truth, and I believe it is likely the defendant committed the offences. However, despite the manner in which counsel presented their case, the evidence does not permit me to conclude—beyond a reasonable doubt—that the defendant is guilty.
64Accordingly, I must acquit the defendant of all charges.
Released: March 26, 2026
Signed: Justice Christopher K. Assié
Footnotes
- R v Lifchus, 1997 319 (SCC), [1997] S.C.J. No. 77, [1997] 3 S.C.R. 320 at para 27; R v Starr, 2000 SCC 40 at para 242.
- R v Menard, 1998 790 (SCC), [1998] S.C.J. No. 56, [1998] 2 S.C.R. 109; R v Morin, 1988 8 (SCC), [1988] S.C.J. No. 80, [1988] 2 S.C.R. 345.
- R v Villaroman, 2016 SCC 33 at paras 28, 36.
- Ibid at para 35; R v Khela, 2009 SCC 4.
- Ibid Villaroman at para 28.
- R v H.C., 2009 ONCA 56.
- R v K.C., 2021 ONCA 401 at para 129.
- R v L.L., 2009 ONCA 413 at para 53.
- R v T.M., 2014 ONCA 854 at paras 38–43; R v Lebrocq, 2011 ONCA 405 at paras 18–21; R v M.J., 2011 ONCA 278 at para 8.
- R v Batte, 2000 5751 (Ont. C.A.) at para 120. See also: R v S.S.S., 2021 ONCA 552 at paras 25–31
- R v Bartholomew, 2019 ONCA 377 at paras 19–25.
- R v L.L. supra note 8 at para 53.
- R v McNeil, 2009 SCC 3.
- R v J.J.R.D., 2006 40088 (Ont. C.A.).
- R v Osolin, 1993 54 (SCC) at para 165.
- R v Seaboyer, 1991 76 (SCC).
- R v Mills, 1999 637 (SCC).
- R v Kruk, 2024 SCC 7 at para 50.
- Ibid at paras 72, 96.