Court of Appeal for Ontario
Huscroft, Roberts and Pomerance JJ.A.
BETWEEN
His Majesty the King
Appellant
and
Sanjaykumar Gandhi
Respondent
Counsel:
Martin Heslop, for the appellant
Colleen McKeown, for the respondent
Heard: May 8, 2026
On appeal from the decision of the summary conviction appeal court by Justice Kofi N. Barnes of the Superior Court of Justice, on October 15, 2024, allowing the appeal from the conviction entered by Justice Donald McLeod of the Ontario Court of Justice, on September 27, 2022.
REASONS FOR DECISION
1The appellant was convicted of sexual assault. At trial, the complainant was adamant that the respondent was the man who sexually assaulted her. She was able to offer a detailed account of the assault, which took place while she was in her assailant’s home. However, there was a paucity of evidence linking the respondent to the crime.
2Police did not conduct any pre-trial identification procedures. The complainant gave a statement to police 20 months after the incident, in which she offered a general description that her attacker was South Asian or Sri Lankan. At trial, she identified the name of her assailant, but was not sure of the name, testifying that it might be Sanjay Gandhi, or that the name might be Patel. She identified the address of her assailant, but there was no evidence that the respondent lived at that address. At the respondent’s virtual trial, four years after the incident, she offered an “in-dock” identification of the respondent as her attacker after saying: “he is … supposed to be on the call”. She acknowledged that the respondent was the only person on the Zoom screen who did not look like a judge or a lawyer.
3The respondent was convicted at trial, but the conviction was quashed by the Summary Conviction Appeal Court. The SCAC Judge found that the verdict was unreasonable and that the reasons of the trial judge were insufficient. On this basis, he entered an acquittal.
4The Crown now appeals to this Court, asking that we reinstate the conviction. We see no basis on which to do so.
5The trial judge convicted Mr. Gandhi based on his assessment of the complainant’s credibility. As he put it, the complainant’s testimony was “forthright, reliable, and internally and externally consistent”. The complainant was “adamant” that Mr. Gandhi was her assailant. The trial judge was clearly moved by the complainant’s sincerity in describing the incident. However, he failed to meaningfully consider the reliability of the complainant’s in-dock identification, and her assertion that Mr. Gandhi was the man who assaulted her.
6As was held by the SCAC judge, it was incumbent on the trial judge to consider whether, despite her apparent certainty, the complainant might have identified the wrong person. Had that been done, it would have been clear that the evidence of identity, frail as it was, could not reasonably prove that Mr. Gandhi was the man who committed the assault.
7Before the SCAC Judge, and before this Court, the Crown argued that the address identified by the complainant was similar to the address listed on the information charging the offence and that this buttressed the evidence of identity. We note that the address offered by the complainant was not identical to the address on the information. In any event, this is of no moment. The address listed on the information was not evidence. It could neither support nor rebut the case for the Crown.
8In short, while the SCAC judge’s reasons are not error free, we agree with his conclusion that no reasonable jury, properly instructed, could convict on the basis of the identification evidence at trial. We also agree with the SCAC judge that the trial judge erred by restricting his consideration of the complainant’s evidence to her credibility, without engaging in any meaningful analysis of the reliability of her evidence.
9The appeal by the Crown is therefore dismissed.
“Grant Huscroft J.A.”
“L.B. Roberts J.A.”
“R. Pomerance J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.