Court of Appeal for Ontario

Date: 2021-04-14 Docket: C67760

Before: Watt, Hoy and Nordheimer JJ.A.

Between: Her Majesty the Queen, Respondent and Anand Dindyal, Appellant

Counsel: Sweta Tejpal and Hans John Kalina, for the appellant Eric W. Taylor, for the respondent

Heard: March 23, 2021 by videoconference

On appeal from the conviction entered on July 19, 2019 by Justice Michael R. Gibson of the Superior Court of Justice with reasons reported at 2019 ONSC 4364.

Nordheimer J.A.:

[1] Anand Dindyal appeals from his convictions on a number of counts including aggravated assault and assault with a weapon. The appellant was originally charged with 11 counts. At the conclusion of his judge alone trial, he was convicted of 10 of the 11 counts. He was acquitted on count 11. The appellant now appeals from his convictions on five of those counts: count 1 – assault; count 3 – aggravated assault; count 6 – assault with a weapon; count 9 – assault with a weapon; and count 10 – assault.

A. Background

[2] All of the counts arise out of a troubled relationship that the appellant had with the complainant. [1] The two were in a relationship for a period of time.

[3] The appellant, aged 21, met the complainant, aged 34, while working for a retail store in Brampton. The appellant was a sales associate, and the complainant was his boss. They began dating on February 14, 2015 and the appellant eventually moved in with the complainant.

[4] The relationship was marked by numerous arguments between the two. Drinking was also part of the troubled relationship. A further complicating factor in the relationship was that the complainant became pregnant and had an abortion in January 2016. The appellant said that this was often the source of dispute between the two as the complainant blamed him for having the abortion. They conceived again but the pregnancies ended in miscarriages.

[5] The appellant moved into the complainant’s home in June 2016 and resided with her, and her son from a previous relationship, until September 2017. The appellant then left the home. Sometime later, the complainant went to the police and gave a statement which led to the charges I mentioned at the outset.

[6] It is not necessary to review all of the allegations underlying the 11 counts that were the subject matter of the trial. Rather, I will simply summarize the parties’ version of the events as they relate to the five counts that are the subject of the appeal:

Count 1

[7] There was an argument between the appellant and the complainant. The complainant said that the appellant pushed her from behind and knocked her to the ground. She called the appellant a coward. The appellant immediately apologized.

[8] The appellant acknowledged that he bumped into the complainant from behind and that she fell to the ground but said that it was an accident. The two had been drinking. He said that the complainant had taken his laptop and his cellphone and thrown them outside, damaging the laptop. When he went to retrieve them, he bumped into her from behind as she was standing in front of him. She fell to the ground because of the size difference between the two of them.

Count 3

[9] The complainant had come home from work that day and had a few drinks. The appellant was also drinking, and they started to argue. The complainant said she had a massive headache. The complainant went to take several Tylenol, maybe as many as four to five, which she intended to wash down with alcohol. As she was washing them down, she suddenly felt one of the appellant’s fingers in her mouth. As she didn’t want his finger in her mouth, she bit down on it “probably significantly hard”. Almost immediately, the appellant elbowed her in the left side of her face with his right elbow. In the days that followed, the complainant found out that she had suffered a fractured orbital bone which required emergency reconstructive surgery.

[10] The appellant agreed that they had both been drinking and arguing. The appellant said that, without warning, the complainant had taken a handful of Advil. He was shocked, and asked her to spit them out, but she refused. The appellant said that he knew he had to get the Advil out of her mouth, and to make her throw up, so he took his right index finger and put it into her mouth. She reacted by biting it and, as he went to pull it out, his elbow connected with the side of her face because of the height difference between the two of them. The whole event happened within seconds, and in one motion.

Count 6

[11] The complainant became pregnant but a few months before this incident she miscarried. This added tension to the relationship. The two were supposed to visit her parents and family but, on the morning of the visit, the appellant refused to go. An argument ensued. During the course of the argument, the appellant threw a plate with the remains of his breakfast and a full cup of coffee at the complainant. He missed but the plate and coffee dented and stained the wall. The appellant then stood up, came towards the complainant, picked her up by the throat, with her feet dangling in the air for just a moment, and slammed her down to the ground. He then got on top of her and started to choke her with his right hand. The complainant gasped for breath, attempted to scream and told the appellant to stop, which he did.

[12] The appellant denied throwing the plate and cup of coffee. He said that the two had an argument about money and that, at one point, he either “passed” or “tossed” his wallet at the complainant. He said that the complainant then tried to push him. He grabbed the complainant and put her to the ground.

Count 9

[13] The appellant and the complainant went to a barbeque. They were drinking. As they were leaving the barbeque, an argument ensued. The argument continued as the two got into their car and the appellant started the car. The complainant did not think that things would end well so she attempted to get out of the car as the appellant began driving. The appellant leaned over and grabbed the complainant’s face to keep her in the car, “digging into” her face. The complainant was able to get out of the car and run. The appellant caught up to her, tackled her, and forced her back to the car. The front passenger side door was still open. The appellant threw the complainant through the open door. She landed on her face on the driver’s seat with her legs still dangling out of the open door. The appellant’s acts up to this point formed the basis for his conviction on count 8, which he has conceded. The complainant says that the appellant then slammed the car door on her legs “[a]t least four or five” times. This was the basis of the appellant’s conviction on count 9.

[14] The appellant said that they went to the barbeque where the complainant got “drunk” and “passed out”. After they left, he had to hold her up to get her to the car. He tried to put her in the passenger seat, but she fell into the seat because she was still drunk. He buckled her in but didn’t notice that one of her legs was still outside the car. He accidentally closed the car door on it, once. The appellant got in and started to drive but the complainant started “freaking out” and tried to get out of the car. As he was concerned for her safety, he reached out and tried to hold her, “accidentally” causing injuries on her face.

Count 10

[15] The complainant’s son was due for a haircut. He didn’t like haircuts and would fuss so they had decided to try and cut his hair at home. On the specific day, the complainant’s son was sitting on a stool and the appellant had started to cut his hair. Her son started to fuss, and whine, and the appellant became more and more upset. He eventually told her son not to move or he would have to shave off all his hair. The complainant yelled at the appellant. The appellant picked her son up off the stool by grabbing a fist full of his hair, took the clippers, and shaved right down the middle of her son’s head.

[16] The appellant agreed that the complainant’s son didn’t like to get his hair cut and would fuss so that they had decided to cut his hair at home. That day, the son kept moving as the appellant started cutting his hair. The appellant told the son that if he kept moving, the appellant would end up cutting all his hair. The appellant suggested to the complainant that they should just shave off all his hair, so he didn’t have to get his hair cut as often. The appellant said that as he started shaving the son’s head, the complainant was “freaking out” but, by that point, it was too late to avoid completing the shaving of the son’s hair.

B. The trial judge’s decision

[17] The trial judge began his decision by reviewing the evidence. He then recited certain principles of law including the presumption of innocence, the burden of proof, assessing the credibility of witnesses, and the application of the test from R. v. W. (D.), [1991] 1 S.C.R. 742. The trial judge then reviewed the elements of each of the offences charged.

[18] Thereafter, the trial judge reviewed the evidence of the appellant. He rejected his evidence in total. He said that he found the appellant’s evidence “a contrived and calculated performance”. The trial judge went on to say that the appellant’s evidence “was not internally consistent, and not externally consistent with the other evidence that [he did] accept.”

[19] The trial judge proceeded to deal with the complainant’s evidence. He said that he found the complainant to be credible and that “[s]he gave her evidence in a straightforward manner without undue embellishment”. The trial judge added: “Moreover, as submitted by the Crown, she has no reason to lie, to fabricate or to embellish the accusations against [the appellant].”

[20] The trial judge then went through each of the 11 counts. With the sole exception of counts 5 and 11, the trial judge said, separately for each of the counts and in virtually the same language, that he did not believe the appellant and he was not left in a reasonable doubt by his evidence.

C. Analysis

[21] It is not necessary to address each of the complaints made by the appellant with respect to the trial judge’s reasons and analysis. Rather, I begin with the error that infected the trial judge’s approach to all of the counts and that is his credibility finding with respect to the complainant, i.e., the no motive to fabricate conclusion.

[22] This court has explained, on a number of occasions, the permissible and impermissible use of evidence, or the absence of evidence, relating to motive. Most recently in R. v. Ignacio, 2021 ONCA 69, at paras. 37-60, leave to appeal to S.C.C. requested, 39552, Pepall J.A. reviewed the authorities on this subject. Included in those authorities is the central point made by Doherty J.A. in R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 121:

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [Emphasis added].

[23] The trial judge found that the complainant had “no reason to lie, to fabricate or to embellish the accusations against [the appellant].” But the evidence does not support that finding. The trial judge appears to have conflated the absence of evidence of a motive to fabricate with a proven lack of motive, contrary to Batte. This is a significant error. A proven lack of motive can be a compelling factor in a credibility assessment. However, the mere absence of any evidence of a motive to fabricate is only one of many factors to be considered in a credibility assessment. It alone cannot serve as the foundation of the credibility assessment.

[24] In my view, the trial judge impermissibly used the absence of any evidence of a motive to fabricate as if it had been proven that the complainant had no motive to fabricate, in coming to his credibility conclusion regarding the complainant. Rather than consider it as a factor, the trial judge clearly used it to conclude that the complainant must be telling the truth, contrary to the admonition I have just set out above.

[25] The concern that the use of the absence of motive evidence became the driving force in the trial judge’s conclusions is heightened by the generally conclusory nature of his reasons. There is no independent analysis of the evidence on each of the counts, as is required absent a count-to-count similar act application by the Crown, of which there was none in this case. There are also no individual credibility assessments. Rather, the trial judge made a blanket credibility finding and then, in considering each count, simply set out the facts for that count, and then recited the same conclusion – that he does not believe the appellant but does believe the complainant.

[26] In addition to these problems, one of the reasons that the trial judge relied on to reject the appellant’s evidence, and to say that it did not raise a reasonable doubt, was the fact that it was internally and externally inconsistent. However, the trial judge did not, at any point in his reasons, identify any of those stated internal or external inconsistencies that led him to this conclusion. Among other problems that this failure creates, is the problem that it leaves this court without any way of reviewing the reasonableness of this conclusion.

[27] This was a credibility case. It was incumbent on the trial judge to carefully analyze the evidence on each count and reach individual conclusions on them. The all or nothing approach that the trial judge took to the credibility assessments was improper. This is especially so because, on some of the counts, there was evidence, beyond that of the complainant and of the appellant, including photographs and other witnesses’ evidence, that required consideration in making any conclusions on credibility. Unfortunately, in many instances, the trial judge failed to reference this other evidence in his reasons. The one notable exception is with respect to count 11, where the trial judge did make reference to the evidence of the appellant’s brother, which he found raised a reasonable doubt.

[28] In response to these concerns, the respondent says that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 could be applied. I would note that the respondent did not argue the proviso in its factum, which tends to raise the concern expressed in R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at paras. 13-16. However, putting that aside, the proviso cannot cure the credibility problems in this case, with the exception of count 6.

[29] The proviso is properly utilized to remedy errors made at a trial when those errors are of the type set out in R. v. Sekhon, [2014] 1 S.C.R. 272, at para. 53:

Flowing from this principle, this Court affirmed in Khan that there are two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict.

[30] The errors in the credibility assessments in this case are not harmless nor are they trivial. They were central to the trial judge’s conclusions. They were also key to the proper resolution of the counts charged. With the exception of count 6, given the nature of the evidence, and the required credibility resolution, the evidence cannot be said to be so overwhelming that convictions were inevitable. Indeed, with respect to counts 1, 3 and 9, there was a serious dispute, on the evidence, regarding the events and how they transpired.

[31] The one exception to this point is respecting count 6. There was still a dispute on the evidence as to what had occurred but, on that count, there was external objective evidence to support the events as described by the complainant, namely, photographs of the damage done by the thrown plate and cup of coffee. While there was an argument over what the photographs actually depicted, that was a factual matter to be resolved by the trial judge. His conclusion on that factual issue is entitled to deference from this court. That conclusion alleviates, to a large extent, the concerns regarding the credibility assessment, and their impact, on that count.

[32] On the other counts, there was conflicting evidence, some of which, as I have said, the trial judge did not address in his reasons. For example, on count 1, the appellant’s brother gave evidence regarding the damage to the appellant’s laptop that might have been seen as corroborating what the appellant said happened in that incident. The trial judge does not mention the brother’s evidence. On count 3, the trial judge found that the force necessary to fracture the complainant’s orbital bone “would far exceed the amount of force that would be transmitted by accident”. The trial judge did not have any medical evidence to support that conclusion. The trial judge also failed to address whether the contact could have been accidental, arising from the reaction of the appellant to the fact that the complainant bit down hard on the appellant’s finger, as she admitted to having done. On count 9, the trial judge failed to address whether the complainant’s injuries (there were photographs of a bruise on the complainant’s shin) were consistent with her evidence that the appellant slammed the car door on her leg “four or five” times.

[33] I mention these issues to demonstrate that the evidence on these three counts was not overwhelming. The proviso cannot be relied upon to correct the trial judge’s errors.

[34] Finally, there is count 10, the cutting of the son’s hair. The respondent fairly conceded during oral argument that the trial judge failed to set out what the assault was that founded the conviction on this count. The appellant had the complainant’s consent to cut her son’s hair and to touch him for this purpose. Further, on the evidence, it was not the cutting of the hair that enraged the complainant but, rather, it was the hair style that the appellant chose, i.e., shaving the child’s head.

[35] The trial judge’s failure to articulate the precise nature of the assault fundamentally undermines the conviction. Further, the evidence led on this count, viewed from any perspective, does not allow for any reasonable conclusion that an assault occurred. The conviction on count 10 must be set aside and, in the circumstances, an acquittal entered.

D. Conclusion

[36] I would allow the appeal on counts 1, 3, 9 and 10. I would order a new trial on counts 1, 3 and 9. I would enter an acquittal on count 10. The sentences on each of those counts are set aside but the sentences on the other counts remain.

Released: April 14, 2021 “DW” “I.V.B. Nordheimer J.A.” “I agree. David Watt J.A.” “I agree. Alexandra Hoy J.A.”

[1] The appellant’s then girlfriend was the complainant in all of the counts, save for count 10 which involved the girlfriend’s young son from a previous relationship. For convenience, the appellant’s then girlfriend is referred to as the complainant throughout these reasons.