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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 —
DANISH GUPTA
Before Justice P.T. O’Marra
Heard on June 2 and 3, 2026
Reasons for Judgment released on June 3, 2026
Rohit Chhibber.................................................................................... counsel for the Crown
Charn Gill ……………………………………………...…. for the defendant Danish Gupta
P.T. O’MARRA J.:
Introduction
1This is my decision in R. v. Gupta. Mr. Gupta is charged with sexual assault contrary to s. 271 of the Criminal Code and sexual interference contrary to s. 151 of the Criminal Code.
2The alleged events occurred on February 4, 2024. The complainant gave two video-recorded statements on February 21, 2024. Those statements were admitted pursuant to s. 715.1 of the Criminal Code. The accused was arrested on March 16, 2024. The complainant was 14 years old at the time of the events and 16 years old when she testified.
3Section 715.1 permits the admission of a prior video-recorded statement of a young complainant as substantive evidence, recognizing that such a statement may assist the court because it was made closer in time to the events. However, admission under s. 715.1 does not determine weight. Weight remains a matter for the trier of fact, assessed in light of the whole of the evidence, including the witness’s viva voce evidence, cross-examination, and any inconsistencies within or between the prior statements themselves: R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183.
4The burden rests entirely on the Crown. The accused is presumed innocent. A reasonable doubt is not an imaginary or frivolous doubt, but one based on reason and common sense and arising logically from the evidence or absence of evidence: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at paras. 36 to 39.
5Where credibility is central, the approach in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 applies. If I believe the accused, I must acquit. If I do not believe the accused but his evidence leaves me in a reasonable doubt, I must acquit. Even if I reject his evidence, I must still decide whether, on the whole of the evidence, the Crown has proven guilt beyond a reasonable doubt.
6The issue is whether the Crown has proven beyond a reasonable doubt that the accused intentionally applied force of a sexual nature to the complainant and, for the purpose of s. 151, that any touching was for a sexual purpose.
Positions of the Parties
7The defence submits that the complainant’s evidence is unreliable and materially inconsistent. Counsel emphasizes that within a short period of time on the same day she gave different versions of the central allegation. In one version, there was no sexual conduct. In another, there was touching and a sexual proposition. In yet another, there was touching but no sexual discussion. The defence says those inconsistencies go to the heart of the case, that her memory was materially affected by alcohol, and that her explanation for the changing versions does not withstand scrutiny. The defence also relies on the absence of any initial complaint of sexual touching to her mother or to Lyft. Counsel submits that the accused exercised poor judgment, but that poor judgment is not proof of sexual intent or criminal guilt.
8The Crown submits that the complainant’s core allegation should be accepted and that her evidence must be assessed as that of a child witness. The Crown says the accused’s conduct was calculated, that his decision to provide alcohol, socialize with the complainant and her friend, and drive to a more secluded location supports an inference of sexual intent, and that any touching, however brief, was for a sexual purpose. The Crown also submits that the complainant’s inconsistencies are explained by her age, intoxication, and fatigue.
Elements of the Offences
9For sexual assault, the Crown must prove beyond a reasonable doubt an intentional application of force, that the force was of a sexual nature, and absence of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at paras. 25 to 28. Whether a touching is of a sexual nature is determined objectively in light of all the circumstances: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 at pp. 302 to 303.
10For sexual interference, the Crown must prove that the complainant was under 16 years of age and that the accused touched, directly or indirectly, any part of her body for a sexual purpose. Whether the touching was for a sexual purpose is also assessed objectively, in light of all the surrounding circumstances: R. v. L.(R.), [1998] 2 S.C.R. 163; R. v. A.L., 2013 ONCA 742 at para. 65.
Timeline and Central Facts
11The broad chronology is not materially in dispute.
12On February 4, 2024, the complainant and her friend, S., arranged a Lyft ride after spending time with family. The accused attended as the Lyft driver. The complainant and S. sat in the back seat. After the fare ended near the complainant’s residence, the complainant and S. remained in the vehicle.
13They went to two LCBO locations. The first was closed. At the Bramalea City Centre LCBO, the complainant selected a bottle of Pink Whitney, and the accused paid for it. They then drove to a parking lot near Best Buy, where they remained for approximately 20 to 35 minutes drinking, smoking, and listening to music. A Snapchat video was recorded during that period.
14Later that evening, the complainant became ill and passed out in the shower. The initial complaint to her mother and to Lyft concerned drinking and smoking. There was no initial complaint of sexual touching.
15The complainant gave two video-recorded statements on February 21, 2024. The accused was arrested on March 16, 2024. There is no evidence that between February 4 and March 16 the accused attempted to contact either the complainant or S.
The Complainant’s Evidence
16The complainant testified at age 16 about events that occurred when she was 14. She described the ride, the attendance at the LCBO, the drinking, the smoking, and the time in the parking lot. She accepted that she consumed a significant quantity of alcohol, that she became ill, and that her memory was affected. She also accepted in cross-examination that she later passed out in the shower.
17Her evidence concerning the alleged sexual misconduct changed over time.
18In her first recorded statement on February 21, when asked whether sex was involved, the complainant said no. In the second recorded statement, she described the accused reaching back and rubbing or touching her thigh, said that she told him not to touch her, pushed his hand away, and said that he stopped. In that same statement, she denied that the accused said anything about sex or made any sexual proposition.
19At trial, however, she testified that before the touching the accused suggested going to Toronto to get Molly and “have sex.” She accepted that this was not contained in the second video statement and that the second statement records her denying any sexual discussion. She attempted to explain the difference by saying she was tired, on medication, and vague in the earlier statement, and that she was scared of getting into trouble for drinking and smoking.
20The complainant’s evidence also shifted on duration. In chief, she suggested the touching lasted approximately 15 to 20 seconds. In cross-examination, when confronted more precisely, she accepted that it could have been only a few seconds. She was also unable to say whether the alleged touching occurred before or after the Snapchat video, despite that video being an objective marker in time. She accepted that she did not initially report any touching to her mother and that the complaint to Lyft was about drinking and smoking.
21I have considered the complainant’s two prior statements admitted under s. 715.1 together with her viva voce evidence. Those prior statements are substantive evidence, but their weight is materially affected by the fact that they are not consistent with one another on important points and are not consistent in material respects with the complainant’s trial testimony. The differences concern whether there was any sexual discussion at all, the timing and circumstances of the alleged touching, and the context in which the touching is said to have occurred. These are not minor differences. They go directly to the existence, nature, and context of the alleged touching.
The Snapchat Video
22The Snapchat video is an important piece of objective evidence.
23According to the complainant, it was recorded while all three were in the car at Bramalea City Centre. It shows the complainant and S. in the back seat, the accused in the front, music playing, the Pink Whitney bottle visible, and the parties drinking and smoking. The interaction appears social and animated. The accused is seen smoking. There is no observable distress, resistance, or sexual touching on the video itself.
24The significance of the video lies less in what it depicts than in the fact that it provides a fixed point in time. Despite that, the complainant was unable to say whether the alleged touching occurred before or after the video. That inability is significant. If the central allegation cannot be placed in sequence relative to an objective marker, that undermines the reliability of the account. The video also confirms that, at least at that point, the interaction was mutual, social, and heavily influenced by alcohol. It does not preclude the possibility that something objectionable occurred at another point, but it does not corroborate the allegation.
Child Witness Evidence
25The complainant was 14 years old at the time of the events. There is no presumption that the evidence of a child is less reliable than the evidence of an adult: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at p. 134. A contextual and common sense approach is required. Children may be less precise about time, sequence, and detail, and such imprecision does not necessarily mean they are mistaken about what happened: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at pp. 54 to 55.
26At the same time, reliability remains central. The court must distinguish between inconsistencies on peripheral matters, which may be explained by age and developmental limitations, and inconsistencies on material matters, which may give rise to a reasonable doubt: R. v. D.D., 2000 SCC 43 at para. 49; R. v. J.H.S., 2008 SCC 30 at para. 32.
27I have considered the complainant’s age and the need to assess her evidence contextually. I also note, however, that on the evidence she presented as having a degree of independence and experience beyond what might otherwise be assumed. That contextual fact does not diminish the caution owed to child witness evidence, but it does mean that the material inconsistencies here cannot be explained solely by youth.
Effect of Intoxication on Reliability
28The complainant’s admitted intoxication is a central feature of this case. She described consuming a significant quantity of alcohol, becoming sick, and later passing out. Reliability depends upon a witness’s capacity to observe, recall, and recount events accurately: R. v. Dinardo, 2008 SCC 24 at para. 23.
29As a matter of ordinary reasoning, her admitted level of intoxication bears directly on her ability to perceive, remember, and later recount events accurately. In this case, that concern is borne out by her difficulty with sequence, timing, and duration.
30I do not say that intoxication renders her evidence incapable of belief as a matter of law. I do say that it materially weakens its reliability and increases the risk of mistake on the central issue.
Credibility and Reliability of the Complainant
31I have serious concerns about both the credibility and, more particularly, the reliability of the complainant’s evidence.
32First, her accounts of whether there was any sexual discussion are inconsistent in a material way. In the second statement, she explicitly denied that the accused said anything about sex. At trial, she asserted that he invited her and S. to go to Toronto, get Molly, and “have sex.” That is not a peripheral inconsistency. It goes directly to the alleged sexual context the Crown says supports the inference of sexual purpose.
33Second, the allegation of touching itself evolved. The initial answer to police was that sex was not involved. The touching then emerged after further questioning. I recognize that delayed or gradual disclosure is not, by itself, a basis to reject evidence, particularly from a young complainant. However, here it is not merely delayed disclosure. It is changing disclosure, with different accounts on central matters.
34Third, her evidence regarding duration changed from 15 to 20 seconds to an acceptance that it may have lasted only a few seconds. Duration alone is not determinative, but the shifting evidence reflects uncertainty about what occurred.
35Fourth, and importantly, she could not situate the touching within a coherent timeline. Her inability to say whether the touching occurred before or after the Snapchat video is not a minor flaw. It goes to the basic reliability of the narrative.
36Fifth, the initial complaint to her mother and to Lyft concerned alcohol and smoking, not sexual touching. That omission is not determinative, but it is relevant, especially where the complainant was willing to disclose her own drinking and smoking.
37There were also inconsistencies in the complainant’s evidence on other observable details. She testified that she was wearing a crop top and leggings. The Snapchat video shows her instead in a red long sleeve zip up track top and loose, pajama type pants. Clothing is not a central issue in itself, but this inconsistency adds to the broader concern about the reliability of her recollection.
38Similarly, she could not recall whether the accused had facial hair. The Snapchat video shows that he did have significant facial hair. That point is not decisive on its own, but it is another example of her inability to reliably recall features of the evening that were visible and objectively verifiable.
39I do not make a firm finding that the complainant fabricated the allegation. I am also mindful of the caution in motive analysis. The absence of a proven motive to lie does not enhance credibility: R. v. L.L., 2009 ONCA 413 at paras. 44, 48 and 53; R. v. Bartholomew, 2019 ONCA 377 at para. 22. At the same time, the complainant’s admitted concern about getting into trouble for drinking and smoking provides some context for why she may initially have minimized or framed events differently.
40My main concern, however, is not motive. It is reliability. She may well have been attempting to tell the truth and yet be mistaken in important respects.
41Taken together, these concerns leave me unable to place the degree of reliance on the complainant’s evidence that would be required to convict.
The Accused’s Evidence and Why His Conduct Was Ill-Advised
42The accused testified and denied any intentional touching or sexual purpose. He said he picked up the complainant and S., ended the ride so they would not incur further fare, and then voluntarily continued to spend time with them. He admitted that he offered or agreed to obtain alcohol, paid for the alcohol, allowed smoking in the vehicle, and consumed alcohol himself. He said the interaction was social, involving music and conversation, and that there was some argument in the back seat between the two girls. He denied ever discussing sex and denied intentionally touching the complainant’s thigh. He accepted that, if there was any contact while passing items, it would have been incidental.
43His conduct was plainly ill-advised. He was operating as a rideshare driver, a role that carries professional obligations and clear boundaries. He ended the ride and then chose to continue socializing with two young female passengers. He purchased alcohol without making any meaningful inquiry about age. He consumed alcohol while still in control of a motor vehicle. He permitted smoking in the vehicle. He drove the complainant and her friend to a relatively secluded parking area and remained there for a substantial period drinking and socializing. These actions demonstrate poor judgment, disregard for safety, and a troubling willingness to blur professional boundaries. They warrant criticism.
44However, suspicious, improper, or morally blameworthy conduct does not substitute for proof beyond a reasonable doubt of the essential elements of a criminal offence: R. v. W.(H.), 2013 ONCA 265 at para. 27. I, therefore, do not conflate the accused’s poor judgment with proof of sexual intent or proof that a sexual offence occurred.
Absence of Post-Incident Contact and the Crown’s Theory
45The Crown submits that the accused’s conduct supports an inference of romantic or sexual intent. I am not satisfied that the evidence supports that inference beyond a reasonable doubt.
46The incident occurred on February 4, 2024. The complainant gave her statements on February 21, 2024. The accused was arrested on March 16, 2024. There is no evidence that the accused attempted to contact the complainant or S. between February 4 and February 21, despite the exchange of social media and despite the Crown theory that he was grooming or pursuing a sexual encounter. I do not treat that absence of contact as determinative. I regard it only as one additional circumstance that weakens the inference of a planned or ongoing sexual pursuit.
47I rely on R. v. Villaroman, 2016 SCC 33 at para. 30 only in relation to the Crown’s invited inference from the surrounding conduct to sexual purpose or intent. Where the Crown asks the court to draw an inference of guilt from surrounding circumstances, guilt must be the only reasonable inference available on the whole of the evidence. In this case, the evidence supports at least two reasonable inferences. One is that the accused acted with sexual intent. Another is that he engaged in reckless, immature, irresponsible, and unlawful social behaviour without sexual intent. Given the frailties in the complainant’s evidence, the second inference has not been excluded.
Application of W.(D.)
48Applying R. v. W.(D.), I accept the accused’s evidence on the central issue. I believe his denial that he intentionally touched the complainant in a sexual manner. On that basis alone, the accused is entitled to an acquittal.
49If I am wrong in believing the accused, his evidence at minimum leaves me in a reasonable doubt.
50Even if I were to reject the accused’s evidence entirely, I would not be satisfied beyond a reasonable doubt on the whole of the evidence. The Crown’s case depends critically on the reliability of the complainant’s account. For the reasons I have given, I cannot place sufficient reliance on that account to find that the Crown has proven beyond a reasonable doubt that the accused intentionally touched the complainant in the manner alleged. If I am wrong about that, I am not satisfied beyond a reasonable doubt that the Crown has proven the touching, if any, was of a sexual nature or for a sexual purpose.
51In that sense, this is a case in which the accused is entitled to an acquittal on the first branch of W.(D.). I would add that, even if not, the Crown has not met its burden on the whole of the evidence.
Disposition
52The Crown has not proven either count beyond a reasonable doubt. Mr. Gupta is found not guilty on both counts.
Released: June 3, 2026
Signed: Justice P.T. O’Marra