An Ottawa man has been found not guilty of sexually assaulting his wife because of his honest belief that he had the right to have intercourse with her whenever he wanted.

In a written ruling, Ontario Superior Court Justice Robert Smith said the Crown failed to prove that the accused had formed the required criminal intent — mens rea — to sexually assault his wife in 2002.

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“I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so,” Smith said.

However, the judge ruled the man was not guilty of sexual assault because the Crown had failed to establish that he knew his behaviour was, in fact, criminal.

The decision, issued earlier this week, followed a five-day trial in June.

The man was part of an arranged marriage in Gaza. His wife, a Palestinian who grew up in Kuwait, lived in Ottawa and the family settled in this city.

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She testified that during their marriage, she considered it her obligation to have sex with her husband. Often, she told court, she did not consent, but they both believed it was his right.

The couple separated in January 2013, but they had difficultly making child arrangements work.

Court heard that it was during a dispute over child access — after speaking to a police officer — that the woman came to understand she had the right to refuse sexual relations with her husband. She subsequently complained to Ottawa police about a 2002 incident.

The husband denied ever having sexual relations with his wife without her consent, and specifically denied the incident that led to the charges.

His wife alleged that, in 2002, he grabbed her by the wrist, pulled her onto the couch, pulled down her pants and had sex with her even though she asked him three times to stop.

The judge said she was a credible witness who gave straightforward answers.

Court heard that at the time, in 2002, the husband had undergone a hair transplant. His doctor, he testified, had told him to abstain from sex for two weeks after the surgical procedure. He told court the alleged incident could not have happened because he had followed that advice.

“The accused did not call any medical evidence to show this was standard medical practice,” the judge said, “and I find his evidence in this regard does not accord with common sense to a reasonably informed person.”

Smith said the man was argumentative and evasive as a witness, and he rejected his account as not believable.

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Nevertheless, the judge said he could not find him guilty of a crime.

“Marriage is not a shield for sexual assault,” Smith wrote in his decision. “However, the issue in this trial is whether, considering the whole of the evidence, the Crown has proven the allegations beyond a reasonable doubt.”

The man’s defence lawyer, Sean May, said the timing of the charges — they came to light during a combative phase in the relationship — also raised doubt in the case.

Carrolyn Johnston, acting executive director of the Ottawa Coalition to End Violence Against Women, called the ruling “disappointing.” She said it highlights persistent myths about sexual assault.

“Any sexual contact without explicit and ongoing consent is sexual assault — regardless of the relationship,” Johnston said. “He may have believed that he had a right to have sex with her as her husband, but Canadian sexual assault law is clear and was amended to include sexual assault against a spouse in 1983.”

The Ottawa coalition, the Sexual Assault Network and the city’s rape crisis centres are now engaged in public education campaigns, she said, to ensure that consent laws are better understood.