WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gandhi, 2015 ONCA 660

DATE: 20150930

DOCKET: C59416

Doherty, Benotto, Miller JJ.A

BETWEEN

Her Majesty the Queen

Respondent

and

Amar Mayur Gandhi

Appellant

Paul Bursteuin, for the appellant

Mabel Lai, for the respondent

Heard: September 25, 2015

On appeal from the conviction entered on June 25, 2014 and the sentence imposed on October 8, 2014 by Justice John McMahon of the Superior Court of Justice, without a jury.

ENDORSEMENT

[1] The appellant appeals his conviction and sentence with respect to sexual assault, assault, choking and forcible confinement.

[2] The allegations at trial related to events in the appellant’s car. On the appellant’s evidence, an evening of casual consensual sexual activity in his car suddenly erupted into chaos after he mentioned that he still had feelings for his ex-girlfriend, the complainant’s estranged cousin. She abruptly bolted from the car, screaming that he had raped her, and he panicked. On the complainant’s evidence, the appellant trapped her in his car, choked her, removed her clothes and forced her to perform oral sex. She managed to engineer a desperate escape to her apartment building. The security video at the entrance to her apartment building shows the complainant, half-naked trying to get in to the building. The appellant is seen chasing her, carrying her clothes and then slamming her against a glass wall. Two by-standers intervene and ultimately testify at trial.

[3] The appellant submits that, in finding him guilty, the trial judge erred in these ways:

(1) By improperly relying on judicial notice and stereotypical notions of “common sense and life experience;” and

(2) By conducting an unbalanced credibility analysis which favoured the complainant over the appellant.

[4] The stereotyping alleged by the appellant relates to the appellant’s testimony that he stopped the complainant from fellating him in his car out of a concern for privacy and then permitted the activity to continue when they arrived at the parking lot of her apartment building. The trial judge said this made no sense. The appellant says that this amounts to a categorical finding of how people behave during a sexual encounter. We see no “stereotyping” or improper reasoning in the judge’s comment. He simply found, as a matter of common sense, that the appellant’s stated concern for privacy was inconsistent with sexual activity in a different public place mere minutes later.

[5] The trial judge did not inappropriately apply a common sense analysis to the appellant’s evidence about the complainant’s flight from the car. The appellant had testified that he told the complainant he still had feelings for his former girlfriend. On his evidence, the complainant was upset and angry. She was not fearful. The trial judge found that his evidence about her flight from the car was “incredulous” and “makes no sense.” Specifically, the trial judge said:

To suggest a woman scorned in such a fashion would not put on her underwear, pants, and shoes before leaving the vehicle is simply not credible.

[6] The trial judge was entitled to consider whether someone in the complainant’s position would—out of anger—run from a car to a public place half-naked leaving behind her clothes and phone and start banging on a lobby door.

[7] The trial judge also concluded, based on all of the evidence, including the video, that the complainant’s fear and hysteria were genuine and this constituted circumstantial support for her allegation of sexual assault and was inconsistent with the appellant’s denial.

[8] The credibility analysis was not unbalanced. The trial judge specifically instructed himself as follows:

…I must scrutinize [the complainant’s] evidence with the same detail and fashion that I have examined [the appellant’s] evidence.

[9] A fair reading of his reasons indicates that he did just that. The trial judge assessed the credibility of the appellant and found significant inconsistencies. He also carefully addressed the inconsistencies in the complainant’s testimony. He meticulously reviewed the evidence and made findings of fact on the basis of objective facts, including the evidence of independent witnesses and the security video.

[10] We see no basis to interfere with the judge’s imposition of a sentence of 18 months minus a day. It was within the appropriate range, credit was given for bail conditions and there was no error in principle.

[11] The appeal from conviction is dismissed. Leave to appeal sentence is granted. The sentence appeal is dismissed.

D. H. Doherty J.A.

M.L. Benotto J.A.

B.W. Miller J.A.