



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    that could identify the complainant or a witness shall not be published in any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 appellants car. On
    the appellants 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 complainants estranged cousin. She
    abruptly bolted from the car, screaming that he had raped her, and he panicked.
    On the complainants 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 appellants
    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 judges comment.  He simply found,
    as a matter of common sense, that the appellants 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 appellants evidence about the complainants 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
    complainants position wouldout of angerrun 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 complainants fear and hysteria were genuine and this
    constituted circumstantial support for her allegation of sexual assault and was
    inconsistent with the appellants denial.

[8]

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

I must scrutinize [the complainants] evidence with the same
    detail and fashion that I have examined [the appellants] 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
    complainants 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 judges 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.


