Ontario Superior Court of Justice

Court File No.: CR-25-4/108
Date: 2025-06-06

BETWEEN:
His Majesty the King
– and –
J.A.S.G.

Appearances:
Thomas Surmanski, for the Crown
J.A.S.G., in person
Paula Rochman, Amicus Curiae

Heard: March 31 and April 1, 2025

Reasons for Judgment by:
J.T. Akbarali

Released: June 6, 2025

Overview

[1] The defendant, J.A.S.G., was charged with one count of assault with a weapon, three counts of assault, three counts of sexual assault, one count of assault by choking, suffocating, or strangling, and one count of uttering a threat to cause death. The complainant is his estranged spouse.

[2] At the close of the Crown’s case, amicus curiae sought a directed verdict on five counts. The Crown agreed that a directed verdict should be granted with respect to four of the counts. For reasons delivered orally on April 1, 2025, I granted a directed verdict in respect of all five counts identified by amicus and declared the defendant not guilty of those charges.

[3] Following the directed verdict, the defendant elected not to give evidence, and closing arguments were made.

[4] The counts that remain for determination are:

a. one count of assault alleged to have been committed between January 1, 2014 and December 31, 2016.

b. one count of sexual assault alleged to have been committed on or between June 21, 2017 and January 6, 2022.

c. one count of sexual assault alleged to have been committed on or between March 1, 2024 and March 31, 2024.

d. one count of assault alleged to have been committed on or between March 1, 2024 and April 14, 2024.

Applicable Legal Principles

The Presumption of Innocence and Standard of Proof

[5] The defendant is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. The onus lies with the Crown throughout.

[6] Proof beyond a reasonable doubt requires more than a conclusion that the defendant is likely guilty, or probably guilty, but it does not require proof beyond all doubt. However, proof beyond a reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[7] A reasonable doubt is not a doubt based on sympathy or prejudice, nor is it a frivolous doubt. A reasonable doubt is based on reason or common sense that is logically connected to the evidence or the absence of evidence.

Assessing Credibility

[8] The Supreme Court of Canada set out guidance with respect to assessing the testimonial credibility of witnesses in R. v. Kruk, 2024 SCC 7, paras. 72-73:

a. Triers of fact may rely on reason, common sense, life experience, and logic in assessing credibility.

b. Life experience of trial judges, while not a substitute for evidence, and subject to appropriately circumscribed limits, is an important ingredient in the ability to understand human behaviour, weigh the evidence, and determine credibility.

c. Common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of the way things can and do happen.

d. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information.

e. Witnesses who are inconsistent are less likely to be telling the truth.

[9] In R. v. Filion, para. 27, the court set out factors that may assist in assessing the reliability and credibility of a witness’s testimony, including:

• Does the witness seem honest? Is there any particular reason why the witness should not be telling the truth or that his/her evidence would not be reliable?
• Does the witness have an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other?
• Does the witness seem to have a good memory? Does any inability or difficulty that the witness has in remembering events seem genuine, or does it seem made up as an excuse to avoid answering questions?
• Does the witnesses’ testimony seem reasonable and consistent as she/he gives it? Is it similar to or different from what other witnesses say about the same events? Did the witness say or do something different on an earlier occasion?
• Do any inconsistencies in the witness’ evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because she/he failed to mention something? Is there any explanation for it? Does it make sense?
• The manner in which a witness testifies may be a factor, and it may not, depending on other variables with respect to a particular witness.

Sexual Assault and Trauma

[10] There is no hard and fast rule as to how people who are victims of trauma like sexual assault will behave: R. v. D.D., 2000 SCC 43, para. 65. It is an error of law to make assumptions about how a victim of sexual assault should or will react to the assault: R. v. A.R.D., 2017 ABCA 237, para. 50, R. v. A.B.A., 2019 ONCA 124, para. 5. I must also keep in mind factors such as power imbalance or fear, and if they exist, how they affect the behaviour of the parties.

[11] It is a myth to conclude that genuine victims of sexual assault report the assaults at the earliest opportunity, or that they do not associate with the alleged perpetrator after the offense. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. The timing of the complaint is simply one circumstance to consider in the context of a particular case.

Elements of the Offences Charged

Elements of Offence of Assault Contrary to s. 266 of the Criminal Code

[12] The defendant is charged with two counts of assault contrary to s. 266 of the Criminal Code. To prove those charges, the Crown must prove beyond a reasonable doubt that the defendant intentionally applied force to the complainant, that the complainant did not consent to the force that the defendant applied, and that the defendant knew that the complainant did not consent to the force that he intentionally applied.

[13] The intentional application of force requires that the force not be applied by accident.

[14] Whether the complainant consented to the force applied involves her state of mind. To consent, she has to know what the defendant is going to do and voluntarily decide to let the defendant do it.

[15] To prove that the defendant knew the complainant did not consent to the force that he intentionally applied, the Crown must prove beyond a reasonable doubt that the defendant was aware that the complainant did not consent at the time he intentionally applied the force. The Crown may do so by proving that the defendant was actually aware that the complainant did not consent to the force that he intentionally applied, or that he knew there was a risk that the complainant was not consenting but did it anyway, not caring whether she consented or not, or that he knew he should inquire whether the complainant consented to the force that he intentionally applied but did not make the inquiry because he did not want to know the truth about the complainant’s consent.

Elements of Sexual Assault Contrary to s. 271 of the Criminal Code

[16] The defendant faces two charges of sexual assault contrary to s. 271 of the Criminal Code. To obtain a conviction on these counts, the Crown must prove beyond a reasonable doubt that the defendant intentionally touched the complainant in circumstances of a sexual nature, that the complainant did not consent to the sexual touching by the defendant, and that the defendant knew that the complainant did not consent to the sexual touching by the defendant.

[17] Touching is any physical contact with another person. To have intentionally touched the complainant, the defendant must not have touched her by accident, but must have meant to touch her.

[18] Touching in circumstances of a sexual nature requires that the complainant’s sexual integrity was violated. To find that touching was in circumstances of a sexual nature requires that I be satisfied beyond a reasonable doubt that the sexual nature of the intentional touching would be apparent to a reasonable observer.

[19] Whether the complainant consented to the intentional touching is a question about the complainant’s state of mind. Consent refers to the voluntary agreement of the complainant to engage in the sexual activity in question: s. 273.1(1) of the Criminal Code. An agreement to one specific physical sexual act is not an agreement to any or all other specific physical sexual acts. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1) of the Criminal Code. The absence of consent is reflected by whether the complainant, in her own mind, wanted the sexual activity in question to occur.

[20] There must be evidence of consent through either clear words or conduct from the person being touched. Consent must be freely given. The state of mind of the person being touched may be reflected in their words or gestures and behaviour at the time. There is neither presumed nor implied consent. Consent may be revoked or withdrawn at any time: R. v. Ewanchuk; R. v. J.A., 2011 SCC 28; R. v. Barton, 2019 SCC 33.

[21] To prove that the defendant knew that the complainant did not consent to the sexual touching by the defendant, the Crown must prove that the defendant was aware she did not consent at the time he touched her. The Crown must prove either that the defendant actually knew that she did not consent to the sexual touching, or that he knew there was a risk that she did not consent but went ahead anyway, or that he knew of indications that she did not consent but deliberately chose to ignore those indications because he did not want to know the truth.

Analysis

The Evidence at Trial

[22] The Crown’s case consisted of the testimony of a single witness – the complainant – who gave direct evidence about the alleged events that form the basis for the charges against the defendant. Her cross-examination was conducted by amicus curiae, who was also acting as counsel under s. 486.3(2) of the Criminal Code. No documentary evidence, and no circumstantial evidence, was led at trial.

[23] The defendant did not testify. It is essential to keep in mind that a defendant need not testify in their defence. No adverse inference can be drawn against the defendant because he elected to remain silent; his testimonial silence cannot be used as a building block in the Crown’s case: R. v. Prokofiew, 2012 SCC 49, para. 4. If, after considering the whole of the evidence, I am not satisfied that the Crown has proven its case against the defendant beyond a reasonable doubt, I cannot look to the defendant’s election to not testify to remove that doubt: Prokofiew, at paras. 4, 10-12, 15, 20-21, 26, 64-65; R. v. Noble, para. 72; R. v. Tomlinson, 2014 ONCA 158, paras. 97-98.

[24] During the trial, the evidence I heard was replete with presumptively inadmissible testimony of the defendant’s disreputable conduct. No application was made to adduce it, and no objection was made to the evidence at trial. Notwithstanding, I have directed my mind to the admissibility of the evidence of extrinsic misconduct and conclude that it is admissible on this trial as part of the narrative to provide context for other events: R. v. J.A.T., 2012 ONCA 177, para. 54. I may use this evidence for the limited purpose of understanding the history and context of the relationship between the complainant and the defendant. I am cognizant, however, that I cannot use evidence of extrinsic misconduct to conclude that the defendant is a person of bad character likely to have committed any of the offences charged: J.A.T., at para. 55.

Credibility Assessment of the Complainant

[25] The complainant gave evidence about the background to her relationship with the defendant, and about the alleged physical assaults in a forthright and clear manner. She asked that, in the interests of their children, the charges against the defendant be dismissed. She described the incidents in a reasonable and restrained manner. She readily made concessions on cross-examination when appropriate. For example, on cross-examination she agreed that the defendant might have accidentally touched her when he was animated during their arguments, rather than striking her on purpose. She readily admitted that she did not remember certain things and refrained from guessing when answering questions on matters such as how many times certain incidents occurred.

[26] English is the complainant’s second language, and at times, she used an inexact phrase or word to describe something in her evidence. For example, she gave evidence that the defendant was jumping on her stomach, but readily agreed that she did not mean jumping on her with his feet and accepted that another word would better describe what occurred. Through gestures and further oral evidence clarifying what she meant, she described that he was laying on her, or leaning on her, putting pressure on her with his body and his hands on her stomach, in a rhythmic manner. In my view, the complainant’s English, while not perfect, was more than sufficient to enable her to describe what she intended to describe, and where it faltered, she was quick to correct it by trying to explain herself with different words and using gestures.

[27] Amicus curiae suggested that the complainant had given untrue evidence on one occasion. The complainant testified that after the parties had separated, the defendant would come to her home and put bleach in her bed and would throw away or break her things. She testified that she told him to stop, but he said he would not. When amicus suggested to the complainant on cross-examination that she had not told police this information about the bleach, and the throwing away or breaking of her things, the complainant disagreed. Amicus pointed out that there was no re-examination taking the complainant to any statement she made to police where she had made these allegations. Amicus argued that I should find that this discrepancy raises a concern about the reliability of the complainant’s evidence.

[28] I agree that an omission from an earlier statement can amount to an inconsistency with a witness’s evidence at trial. The complainant’s failure to tell the police that the defendant threw bleach in her bed, or would throw away or break her things, at the time she gave her statement is arguably an inconsistency with her evidence at trial. However, it is not an omission or inconsistency that causes me significant concerns about the complainant’s credibility or reliability. The complainant gave evidence at trial that covered the span of many years of her relationship with the defendant. The core of her allegations focused on the alleged physical and sexual assaults and was consistent during the evidence she gave at trial. The complainant was not impeached based on anything she said during her statement to police relating to the core of the allegations.

[29] The inconsistencies or gaps in memory in the complainant’s evidence related to her memory of the year in which certain events occurred. For example, she described an incident when she was struck in the eye, which she first said took place in 2014, and later said took place in 2013. I find these inconsistencies to be minor in the circumstances. As I have noted, the core of the complainant’s evidence remained consistent throughout her examination in chief and cross-examination.

[30] The complainant did not independently offer evidence of the alleged sexual assaults. The Crown’s attempts to elicit this evidence were not successful until after the complainant refreshed her memory from a portion of the statement she gave to the police. Amicus curiae argued that the need for the statement to refresh her memory raises reliability concerns with respect to the complainant’s evidence of the alleged sexual assaults.

[31] I disagree. During the evidence she offered with respect to one of the alleged physical assaults, the complainant tried to avoid disclosing that the nature of the argument she had been having with the defendant prior to the alleged assault was about whether to have sex. She expressed reluctance to talk about matters of a sexual nature, indicating that the defendant did not like it when she did so. After reviewing an excerpt from her statement to police to refresh her memory about the alleged sexual assaults, she gave evidence about those alleged assaults in the same clear and forthright manner with which she spontaneously gave her evidence about the alleged physical assaults, although she continued to use words like “privates” to refer to her body. I conclude that she was reluctant to testify about matters of a sexual nature because of her relationship with the defendant and her knowledge that he did not like her to talk about sexual matters. I also conclude, from her repeated use of phrases like “privates” and “private parts,” that she was embarrassed to testify to matters of a sexual nature. I find that the complainant failed to offer the evidence about the alleged sexual assaults before her memory was refreshed because she was embarrassed and reluctant to testify about sexual matters.

[32] Overall, I find the complainant’s evidence to be both credible and reliable. I have no hesitation in accepting it.

[33] I turn to review the evidence to consider whether the Crown has proven the remaining charges against the defendant beyond a reasonable doubt.

Background to the Relationship between the Defendant and the Complainant

[34] The defendant and the complainant met around Christmas 2005 in the Dominican Republic. The complainant was living in the Dominican Republic. The defendant was living in Canada but visiting the Dominican Republic. They began a relationship.

[35] The defendant periodically visited the complainant in the Dominican Republic. In 2007, they married. The complainant moved to Canada in June 2009. Once in Canada, she began to study English.

[36] The couple had three children together, born in 2010, 2012 and 2014. In 2016, the complainant enrolled in a college program to study to become a personal support worker.

[37] It was around that time that the couple began to experience difficulties in their relationship. The complainant testified that the defendant did not want her to go to school, and he was angry that she did. She said he became more controlling. If he saw her studying, he would throw her schoolbooks. She explained that the defendant wanted to be the provider in their relationship.

[38] On cross-examination, the complainant agreed that the defendant had become more religious over time, and he held views about the appropriate role of a wife and a husband in a marriage that he drew from his religious beliefs. The complainant did not feel that he respected her.

[39] In 2022, the couple separated. The complainant moved to a new apartment with the children. The defendant continued to see the children regularly. The complainant testified that the defendant was not happy about the separation. He wanted to get back together, and he would get angry when the complainant refused.

[40] As of the time of trial, the couple remain separated. They have not divorced. On July 30, 2024, the complainant gave birth to her fourth child, who is not the child of the defendant.

The Assault Charges

Alleged Assaults between January 1, 2014 and December 31, 2016

[41] The complainant gave evidence about four incidents that form the basis for the charge of assault in the timeframe between January 1, 2014 and December 31, 2016.

[42] First, the complainant testified that in 2014, while the couple were living at an apartment at 392 Sherbourne Avenue, they were sitting in the living room on a couch in front of the television. The children were home, but asleep. The couple were arguing about something. The complainant thought it was about 8 or 9 p.m., but she did not remember the time of year. She testified that the defendant struck her in the right eye. She described the force as “a little bit hard,” and said she was not able to see for about two seconds after she was struck. Later in her evidence she indicated that this incident occurred in 2013. The complainant testified that she did not have any injury from this incident.

[43] Second, the complainant testified about another incident that occurred in 2014, about a year after the first incident when the defendant struck her in the eye. The couple were living in the same apartment on Sherbourne Avenue. She said that it was evening, and they were arguing. The defendant was getting upset with her, although she did not recall what it was about. The complainant testified that the defendant threw her onto the couch. She explained he pushed her by applying force to her right shoulder with both of his hands, and that the push was “a little bit hard.” She said this incident happened after the birth of the parties’ child in 2014. The children were at home at the time of this incident.

[44] Third, the complainant was asked about an incident involving a dresser in 2015 or 2016. She said it was nighttime and the couple were arguing again. She explained that the defendant wanted to have sex with her but “probably” she was not in the mood, and he became angry. She testified that the defendant grabbed her with both hands, and kind of carried her. She explained this evidence by gesturing that he carried her over his shoulder. She said he then threw her on a dresser. She said the force he applied was “a little bit hard.” She did not remember the time of year.

[45] Fourth, the complainant testified about an incident involving a bathtub. She explained that she was working, and normally would have a shower before bed. She was in the bathroom to take a bath when the defendant came in. He wanted to touch her, but she wanted her space and to be able to have a shower. She testified that he pushed her right shoulder with both hands, and she felt herself slipping in the bathtub. She said the force he applied was “hard.” She did not recall if she was sitting or standing in the bathtub at the time. The children were at home, asleep, during this incident.

[46] The complainant agreed that she did not suffer any injuries from any of these incidents.

[47] As I noted earlier, during cross-examination, the complainant agreed that at times when she and the defendant had arguments, he would become very animated and very upset, and could have touched her by accident at those times.

[48] Given the complainant’s evidence that the defendant could have touched her by accident when he was upset and animated, I find that the Crown has not established that the defendant intentionally applied force to the complainant when he struck her in the eye. He may have hit her by accident. In addition, there is some confusion about the timing of this incident, which may have occurred in 2013, and thus fall outside the period of time covered by the first assault charge [1].

[49] However, the complainant’s evidence establishes that on three occasions, in the course of an argument, the defendant intentionally applied force to the complainant, twice by pushing her with two hands, and once by picking her up and throwing her into a dresser.

[50] During the incident in the bathroom, the complainant’s evidence was clear that she had indicated she did not want to be touched, and that she wanted her space, to be left alone to have a shower. I find that she did not consent to being pushed in the bathroom, and the defendant was aware that she did not consent because she communicated to him that she wanted him to leave her alone and not touch her.

[51] I also find that the complainant did not consent to being thrown into the dresser, or by being pushed into the sofa. Logic and common sense suggest that the complainant did not consent to physical force being applied against her, on any of the three occasions, by the defendant with whom she was arguing. Moreover, logic and common sense lead me to conclude that the defendant knew she did not want to be pushed or thrown into the dresser (and potentially injured) during an argument by someone who she testified was much stronger than she was. Moreover, the complainant did not know the defendant was going to apply force to her on any of these three occasions, so she could not have consented to it.

[52] I thus find the defendant guilty of the first count of assault, referable to the period between January 1, 2014 and December 31, 2016.

Alleged Assault between March 1, 2024 and April 14, 2024

[53] The complainant gave evidence about an occasion in March, or springtime, of 2024. She said the defendant wanted her to move back to live with him, and he was angry with her. She testified that he would come to her home without telling her he was going to come and would start insulting her. He would make loud noises, scream, jump on the floor, hit the walls, and throw the doors.

[54] On the evening in question, the defendant called her and told her he was going to come to her house, but she told him not to, because she was tired and needed to sleep. He arrived anyway, but she did not open the door. One of their children did.

[55] The complainant testified that the defendant was angry because she had not opened the door. He was insulting her. She said that he pushed her onto the bed with two hands, and then got on top of her with his hands on her stomach, leaning or laying on top of her. She said he was using his hands to punch her stomach hard, although what she described using words and gestures was less of a punch and more of rocking, pumping, or rhythmic motion that he was making while lying or leaning on top of her with his hands on her stomach, putting pressure on her stomach. She said the amount of force he applied was “a little hard.” The complainant was pregnant at the time. She said she felt like she was suffocating, and she called for her son to help.

[56] The complainant recalled that the defendant continued this rocking or pumping motion for about ten seconds before he got off the bed. First, he went to the kids’ room, and then he started to fight with her again. He wanted her to get back together with him. She testified that he continued to display his anger, by jumping on the floor, screaming, hitting the wall with his hand, and insulting her parents and family.

[57] The complainant’s evidence about this incident was detailed and specific. Her memory of the incident was good. At times, there was some confusion in her evidence, which I attribute to the fact that English is her second language. She indicated that she may have used the wrong word when she described the defendant as jumping on her, but explained what she meant clearly using different words and gestures.

[58] The evidence establishes that the defendant applied force to the complainant. She did not consent to the application of force. She had not wanted him to come over, had not let him in, and called for help when he was on top of her applying pressure to her body and particularly her stomach. From this conduct, the defendant knew that she did not consent to the application of the force he applied. Moreover, logic and common sense lead me to conclude that she did not consent to physical force being applied against her by the defendant in this manner, in circumstances when he was angry, and she was particularly vulnerable physically due to her pregnancy. Furthermore, the complainant was unaware that the defendant intended to apply force to her before he did so, thus she could not have consented to it.

[59] I find the defendant guilty of the count of assault referable to the period between March 1, 2024 and April 14, 2024.

The Sexual Assault Charges

Alleged Sexual Assaults between June 21, 2017 and January 6, 2022

[60] The complainant gave evidence that sometimes the defendant would force her to have sex in their bedroom at 392 Sherbourne Street. She remembered that this forced sex took place in the summer, but she did not remember the year. She explained that she was tired from work, stressed, and not in the mood. In addition, because the couple were arguing, she was not happy to have sex with him. She explained that she would tell him she did not want to have sex, that she was stressed and tired, and just wanted to sleep. The defendant would grab her, throw her on the bed, and grab her legs and scratch them with his nails. The complainant testified that the defendant told her that she was his wife, and they had to “do that.” The defendant would then have intercourse with her. He did not use a condom and ejaculated inside of her. The complainant recalled that the forced sex occurred two or three times, and while the children were home.

[61] The complainant’s evidence of the forced sexual intercourse establishes that the defendant touched her intentionally in circumstances of a sexual nature. It establishes that she did not consent to the sexual touching, and that he knew that she did not consent. Although not required to explicitly say no to the sexual intercourse, the complainant’s evidence is that she did tell him she did not want to have sex, and he forced her to do it.

[62] The complainant was unable to remember the year(s) when the incidents of forced sex occurred. The time frame identified with respect to this charge begins in June 2017, not long after the complainant’s and defendant’s relationship began to deteriorate in 2016, and ends at the time of their separation. The complainant’s evidence was clear that the incidents of forced sex occurred during the time when she and the defendant were having difficulties in their relationship. She gave evidence that she began her PSW education in 2016. She also gave evidence that the incidents of forced sex took place in the summer on days after she returned from work, which had to be after she completed her PSW education. For these reasons I conclude that the incidents of forced sex occurred during the timeframe set out in the charge, that is, between the summer of 2017 and the date of separation.

[63] I thus conclude that the defendant is guilty of the count of sexual assault referable to the period June 21, 2017 to January 6, 2022.

Alleged Sexual Assaults between March 1, 2024 and March 31, 2024

[64] The complainant gave evidence about three incidents that took place in March 2024, each about a week apart, in her home.

[65] On the first occasion, she testified that the defendant came into the kitchen of the complainant’s home in the afternoon and started talking to her. He approached her from the side and touched her “private parts.” She moved quickly away from him and told him to stop. The complainant said that the length of time he touched her was about a second long. He told her that she was his wife, and he was allowed to touch her. The children were home at this time.

[66] Second, a similar incident occurred about a week later. The complainant gave evidence that she was in the bathroom when the defendant walked in. She tried to walk out but she had to pass him to do so. The complainant said that the defendant again touched her private parts. She tried to move away and told him to stop. The touching lasted seconds. The children were home at this time.

[67] The third incident occurred about a week after the second. On this occasion, the complainant testified that she was in her bedroom. The defendant entered and began talking to her, and again approached her and touched her private parts quickly. The complainant testified that she put her hand out and moved herself away. She told him no, and told him to stop. The touching lasted about a second.

[68] The complainant clarified that by “private parts” she meant her breasts and her “privates.” I infer that she meant her genitals.

[69] During cross-examination, the complainant agreed that the defendant stopped touching her as soon as she indicated she wanted him to stop.

[70] Amicus curiae argued that the fact that the defendant immediately stopped touching the complainant when she told him to suggested that the defendant had not formed the mens rea to sexually assault the complainant. She suggested that because the couple were estranged spouses, he might have thought he had consent to touch her in that manner, and then stopped as soon as she rejected him. Amicus noted that he could have continued touching her if his intention had been to sexually assault her.

[71] The complainant’s evidence establishes that the defendant touched her breasts and genital area, on three occasions each about a week apart. The touching was obviously sexual in nature.

[72] The evidence indicated the defendant approached the complainant for the purpose of touching her on two occasions, in the kitchen and in the complainant’s bedroom. On the third occasion, he blocked the door to the bathroom the complainant was in, and then took advantage of her having to pass by him closely to exit the bathroom to touch her.

[73] The complainant’s evidence is that after he touched her in the kitchen, he told her that she was his wife, and he is allowed to touch her. That statement is consistent with an intentional touching, not an accidental one. Moreover, the fact that he touched her in the same manner on three occasions one week apart suggests that he intended to do so. I conclude that the defendant touched the complainant intentionally in circumstances of a sexual nature.

[74] The complainant’s evidence was clear that she did not consent to the sexual touching.

[75] The defendant knew she did not consent to the sexual touching, by reason of the circumstances, and her behaviour. The couple were separated and living apart. Nothing about the complainant’s behaviour in the kitchen suggested that the complainant was open to being touched in a sexual manner by the defendant. The defendant was aware from the circumstances of their relationship at the time that the complainant did not want him to touch her sexually.

[76] With respect to the second incident, when the defendant touched her in the bathroom, he had gained access to her home after one of the children let him in; she had not invited him. If there were any confusion about whether she consented to being touched, her quick movement away from him and her telling him to stop touching her in the kitchen the week before made it clear that she did not consent to be touched, and he knew that when he touched her in the bathroom.

[77] Similarly, having been told twice in the previous two weeks not to touch her in a sexual manner, the defendant knew the complainant did not consent to him touching her breasts and her genitals in her bedroom.

[78] I thus conclude that the defendant is guilty of the count of sexual assault referable to the period March 1, 2024 to March 31, 2024.

Conclusion

[79] In conclusion, I make the following determinations:

a. I find J.A.S.G. guilty of the charge that he, on or between January 1, 2014 and December 31, 2016, at the City of Toronto, did commit an assault on the complainant, contrary to s. 266 of the Code.

b. I find J.A.S.G. guilty of the charge that he, on or between March 1, 2024 and April 14, 2024, at the City of Toronto, did commit an assault on the complainant, contrary to s. 266 of the Code.

c. I find J.A.S.G. guilty of the charge that he, on or between June 21, 2017 and January 6, 2022, at the City of Toronto, did commit a sexual assault on the complainant, contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”).

d. I find J.A.S.G. guilty of the charge that he, on or between March 1, 2024 and March 31, 2024, at the City of Toronto, did commit a sexual assault on the complainant, contrary to s. 271 of the Code.

J.T. Akbarali

Released: June 6, 2025

[1] There was no motion to amend the indictment to conform with the evidence led at trial.