Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 07 14 COURT FILE No.: 3111-998-18-14775

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SANJAYKUMAR GHANDI

Before: Justice Allison Dellandrea

Heard on: May 31 – June 1, 2021 Reasons for Judgment released on: July 14, 2021

Counsel: Mr. Theo Sarantis............................................................................... counsel for the Crown Mr. A. Azfal.......................................... counsel for the defendant Sanjaykumar Ghandi

Reasons for Judgment

DELLANDREA J.:

[1] Mr. Ghandi stands charged with a single count of sexual assault alleged to have occurred on November 27, 2018 at the home of a female high school pupil whom he was tutoring.

[2] The defendant had been retained by the 14-year-old complainant’s mother to deliver private tutoring to her daughter in Grade 9 Science, on a weekly basis at the family home. The arrangement explicitly included the expectation that the complainant’s mother would be present in the home during the tutoring sessions, which would occur at the dining room table.

[3] Such was the arrangement which proceeded for several weeks without incident, until the allegation of November 27th arose. On that date, the defendant was delivering a lesson to N.A. on electrical circuitry to prepare her for an upcoming science exam. N.A. was struggling to understand some of the concepts and it is agreed that the defendant asked N.A.’s mother if he could show her the household circuit-breaker in an effort to elaborate on the lesson. Permission was granted for the defendant and N.A. to examine the panel, which was in the basement.

[4] It is not disputed that the complainant led Mr. Ghandi to the basement where the defendant explained the mechanics of household circuitry by reference to the breaker panel, during a conversation of only a few minutes.

[5] What is disputed is whether at the conclusion of that lesson, the defendant touched the complainant’s buttocks, and whether any such touching was intentional and of a sexual nature.

[6] This was a short, two witness trial. The Crown called the complainant, N.A., her mother G.A., and the defendant’s video-taped statement was introduced on consent – its voluntariness having been conceded by counsel for Mr. Ghandi.

[7] N.A. alleged that as she stood up from a leaning position at a desk in front of the panel, she believes Mr. Ghandi touched her buttock for 1-2 seconds. Nothing was said and she led the way up the stairs back to the kitchen. The lesson resumed at the kitchen table and concluded as it normally did. A few days later N.A. told her mother that she felt uncomfortable with Mr. Ghandi and related the interaction in the basement, which she said made her feel “weird.” N.A.’s mother reported the incident to the police, which led to Mr. Ghandi being charged.

[8] The Crown relies on N.A.’s account of the incident on November 27th, as well as her description of earlier behaviours and comments by the defendant in previous tutoring sessions in support of its argument that the elements of the offence have been proven beyond a reasonable doubt. Mr. Sarantis also argues that the defendant’s statement to the police effectively amounts to an admission that the touching happened, followed by an explanation of potential accident, which the Crown characterizes as implausible. The Crown submits that I should reject the defendant’s explanation outright and find that the elements of an intentional sexual touching have been proven beyond any reasonable doubt.

[9] Mr. Azfal argues that the Crown’s evidence falls short of proving not only the sexual and intentional nature of the touching – but also the central question of whether it even happened. Counsel points to certain inconsistencies and logical flaws in the complainant’s description of the incident which he submits make it impossible if not implausible for the touching to have occurred as described. Mr. Azfal argues that his client’s comportment and assertions during his police interview offer nothing in the way of evidence of his guilt, but rather reflect the nervousness of an innocent man who had never been in police custody before in his life, and who was merely struggling to make sense of such a serious allegation. Counsel submits that the Crown has failed to prove each of the elements of the offence BRD and his client is entitled to an acquittal.

[10] Mr. Ghandi is presumed to be innocent. In other words, the court always starts from the presumption that the allegations did not happen. This fundamental presumption applies from the outset of the trial and throughout the entire proceedings. It may only be displaced if the Crown discharges its onerous burden of establishing the defendant’s guilt beyond a reasonable doubt.

[11] In this case, the defendant did not testify. However, our Court of Appeal in D.B. 2011 ONCA 51 has confirmed that the principles in W.D. are applicable to conflicting evidence favourable to the defence in the Crown’s case – such as exculpatory assertions within statements put in by the Crown (see para 106).

[12] Accordingly:

1. If I accept any evidence inconsistent with guilt, I must acquit. Here, that means if I believe the exculpatory assertions by Mr. Ghandi in his statement, I must acquit him.
2. If I do not accept his assertions, but they leave me with a reasonable doubt when considered in context of the evidence as a whole, I must also acquit.
3. Finally, even if I reject the defendant’s denial and it does not raise a doubt, I must go on to consider whether the evidence I do accept proves all essential elements beyond a reasonable doubt.

[13] The steps in W.D. need not be applied in any particular order. The test is designed to highlight and ensure that the burden of proof lies exclusively on the Crown, and never shifts even slightly onto the accused. In this case, there is no obligation whatsoever on Mr. Ghandi to prove that N.A. is mistaken or that she is lying Our law mandates that a criminal trial is not a credibility contest, and can never be resolved by a judge simply selecting whose version of events they prefer.

[14] In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. I have considered whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, or evasive. A judge is entitled to accept some, none, or all of a witness’ evidence.

[15] A verdict of guilt may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offences charged. [1] As Justice Hill held in N.S., [2001] O.J. No. 3944 (S.C.J.) [2] this principle applies with equal force in cases of sexual assault, for which the corroboration rules were abolished by both Parliament, and our Supreme Court, now several decades ago.

[16] I now turn to a review of the evidence relevant to my assessment of the live issues in this case – which are whether the Crown has proven beyond a reasonable doubt:

(1) That Mr. Ghandi touched N.A.; (2) If so, that the touch was intentional; (3) If there was an intentional touch, that it was committed in circumstances of a sexual nature such that the sexual integrity of the complainant was violated (Chase, [1987] 2 S.C.R. 293).

Analysis

[17] N.A. was 16 when she testified. Her videotaped statement to police, given when she was 14, was introduced into evidence pursuant to s. 715.1.

[18] N.A. was struggling to pass grade 9 science and asked her mother to find her a tutor. She testified that she had no real interest in science, and her goal simply was to avoid failing the course.

[19] N.A.’s. mother, G.A. went online looking for advertisements for experienced tutors. Mr. Ghandi’s was one of the two she identified. The defendant had experience in tutoring secondary as well as university students in all subjects, predominantly upper level sciences. Although G.A. testified that she would have preferred to have had a female tutor, there were no female candidates, so she hired Mr. Ghandi.

[20] When G.A. retained the defendant, she explained that the tutoring sessions would be occurring in a common area of the home, when she or her husband were present, and that he was not to be alone with N.A. Mr. Ghandi accepted and agreed with these parameters, and the tutoring sessions proceeded accordingly beginning in late September.

[21] Mr. Ghandi attended the family home 5-7 times over the fall of 2018 for tutoring sessions. Each of these sessions occurred at the kitchen table, in the presence of the complainant’s mother who came and went from the kitchen regularly. The complainant’s younger brother was most often present as well, playing nearby in the living room area.

[22] While the original proposal had been for weekly tutoring sessions, certain weeks would be skipped and the schedule re-adjusted if N.A. did not feel that she needed a session or if the family schedule required adjusting.

[23] N.A. was an articulate and polite witness. She was responsive and direct in her answers to questions from both counsel. N.A. was adamant that she remembers feeling her bottom being touched very briefly when she was in the basement with Mr. Ghandi, and that she felt confused and uncomfortable after it happened. I accept N.A.’s evidence on this first issue and conclude that the Crown has proven that there was contact of some kind between the defendant and N.A. while in the basement on the date in question.

[24] However, there were difficulties with the Crown’s evidence as it relates to the remaining aspects of the interaction which formed the basis for the allegation.

[25] N.A. was notably uncertain with respect to the position of the parties in the basement in the moments preceding the alleged touching. Initially she had said that the defendant was beside her, later she described them as having been facing each other across the table, and ultimately she placed Mr. Ghandi behind her. In relating her evidence on this issue, N.A. used several “qualifiers,” such as “I’m pretty sure,” “I think,” “kind of” and “I guess.” I have considered the possibility that some of the complainant’s use of expressions such as these could have been simply her teenaged manner of speaking. And while the age and stage of a witness’ style of expression must be carefully considered by the court as part of the context of their evidence, I was unable to conclude that these were simply issues related to the form as opposed to the substance of N.A.’s evidence.

[26] Viewed as a whole, there was a substantial lack of clarity as well as an element of uncertainty left by the complainant’s evidence with respect to this critical issue of where the defendant was, and how he touched her in the basement. In both her statement to the police and her testimony, N.A. said that the defendant was both “close,” but “still distanced,” “kind of behind me” and “beside me.” N.A. said she didn’t see the alleged touch, but assumed it was with his hand. The contact lasted no more than 2 seconds and she confirmed that it was simply a touch not a “slap” or a “grab.” While the complainant was firm in her evidence that there had been physical contact between she and Mr. Ghandi in the basement, the contradictions within her description of that conduct do not allow me to be certain of its particular form.

[27] The sexual nature of an assault is not determined solely by reference to specific areas of the human anatomy: Chase, at para. 9. Words or gestures which precede or accompany the touching may inform the court’s assessment of the nature of any assault.

[28] In this case, the complainant described feeling a fleeting touch in the area of her buttocks. The area of the body which was touched therefore engages consideration of whether the touch was of a sexual nature. Here, no words accompanied the alleged touching. However on this issue, the Crown relies on N.A.’s evidence that Mr. Ghandi had previously touched her face and told her she was “cute” during an earlier tutoring exchange, and had touched her on the top of her leg with his hand a few times, fleetingly. N.A. also said that on one occasion she had inadvertently kicked him under the table and the defendant said words to the effect of “it’s ok for you to touch me anytime” in response.

[29] The Crown asks me to find that these earlier interactions occurred as described by the complainant, and further, to use these previous instances of alleged touching which do not form part of the allegation of sexual assault as a basis to conclude that Mr. Ghandi’s conduct on November 27, 2018 was of a sexual nature.

[30] The test to be applied in determining whether the impugned conduct has the requisite sexual nature to be considered a sexual assault is an objective one. Chase directs the court to consider the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force (at para. 11).

[31] Even if I were to accept N.A.’s evidence with respect to the two comments and other forms of contact imputed to Mr. Ghandi during their previous tutoring sessions in the kitchen, I cannot conclude that these interactions were unmistakably sexual in nature, and would logically support the inference sought to be drawn by the Crown. Moreover, these interactions, which were described as occurring over two weeks before the date of the allegation are temporally too remote to be considered part of the “circumstances surrounding the conduct” in question.

[32] Finally, I am not persuaded that the defendant’s words or conduct during his police interview offer support for the Crown’s proof of its case.

[33] Mr. Ghandi was interviewed by Cst. Kennedy of the Peel Regional Police on December 11, 2018. It was the first time that the defendant had been inside a police station, or questioned by a person in authority. While the voluntariness of the defendant’s statement was conceded, I would characterize the style of this interview as at times bordering on aggressive. Cst. Kennedy obviously has significant experience in interrogating subjects, and he used a variety of techniques to add pressure to his questioning of the defendant. It was clear that these techniques succeeded in making an already startled and somewhat naïve Mr. Ghandi appear to be even more nervous.

[34] To the extent that Mr. Ghandi appeared not to remember which student N.A. was at the outset of the interview, I cannot attribute this to any form of evasion on his part, much less consciousness of guilt. Mr. Ghandi appeared to be more bewildered than anything, as he reasserted his surprise at being questioned about any student. He spoke with great pride about the success of many of the students he had worked with and mused aloud about how he was an affectionate person from what he described as a “touchy” culture. But none of these representations amounted, to my assessment, to be admissions to the form of improper conduct alleged here.

[35] To the contrary, Mr. Ghandi candidly walked the officer through the mechanics of how he remembered descending to the basement and pointing to the components of the circuit panel to N.A. while she leaned on the desk nearby. He denied grabbing or touching her backside intentionally but posited the possibility that it could have happened accidentally as he reached to the desk or chair to steady himself. There is no basis for me to conclude that Mr. Ghandi’s expression of a potentially benign explanation for passing physical contact between he and N.A. was obviously contrived or that it belied his guilt for an intentional sexual touching.

[36] Mr. Sarantis also invites me to impute Mr. Ghandi’s recollection that N.A. had been wearing black leggings on the date of the last tutoring session as being notable and indicative that it was a sexually-charged memory. This argument relies on a form of propensity reasoning which also engages improper myths about the type of clothing that the young complainant happened to be wearing, namely: fitted leggings. Simply put, I am invited to conclude that since Mr. Ghandi remembered that N.A. was wearing leggings, it is more likely that he considered and acted towards N.A. in a sexual manner: otherwise, why would he have remembered this detail? I reject this argument entirely, as it relies on what I would characterize as a concerning myth that certain garments worn by women invite closer sexual scrutiny by men than others. They do not. Mr. Ghandi’s comment amounts to an expression of his memory of what the complainant was wearing, and no more. His remark was indistinguishable from the complainant’s, who likewise remembered that he had been wearing pants and a vest on that day.

Conclusion

[37] After considering all of the evidence in this case, I am left with a reasonable doubt with respect to whether the touching of N.A. by the defendant was intentional and whether it constitutes touching of a sexual nature.

[38] Mr. Ghandi is found not guilty of the offence of sexual assault, and the charge is hereby dismissed.

Released: July 14, 2021 Signed: Justice A. Dellandrea

Cited Cases and Legislation

[1] G.(A), 2000 SCC 17, [2000] 1 S.C.R. 439, at 453-4; Vetrovec (1982), 67 C.C.C. (2d) 1 (S.C.C.).

[2] N.S., [2001] O.J. No. 3944 (S.C.J.) at para. 57.