Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 2022-04-19 DOCKET: C67217
Before: Tulloch, van Rensburg, and Nordheimer JJ.A.
BETWEEN: Her Majesty the Queen, Respondent AND: Siddharth Panchal, Appellant
Counsel: Myles Anevich, for the appellant Andrew Cappell, for the respondent
Heard: September 7, 2021 by video conference
On appeal from the conviction entered on April 8, 2019 and the sentence imposed on April 8, 2019 by Justice Frederic M. Campling of the Ontario Court of Justice.
Tulloch J.A.:
[1] The appellant was convicted of fraud over $5,000. At trial, the only witnesses were the victim and a purported unwitting accomplice; the appellant elected not to testify. The appellant appeals against his conviction, arguing that the trial judge’s reasons do not permit meaningful appellate review and that the verdict is unreasonable. In his notice of appeal, the appellant sought leave to appeal against his sentence; however, neither the appellant’s factum nor his oral submissions pursued this relief. Accordingly, I have treated the application for leave to appeal the sentence as abandoned.
[2] At the conclusion of the hearing, we dismissed this appeal and indicated that reasons would follow. These are those reasons.
I. Background Facts
[3] On May 26, 2015, a man identifying himself as “Thomas” called the victim, Geeta Purohit, claiming to be a government official investigating her immigration paperwork. Ms. Purohit had immigrated to Canada from India in 2005 and became a Canadian citizen around 2010.
[4] “Thomas” informed Ms. Purohit that unless she paid a fee, he would “come to [her] door” and that if her paperwork was not in order, she would be deported. “Thomas” instructed Ms. Purohit to make two bank transfers totalling $15,000; he would retain a $2,000 processing fee to remedy the issue with the paperwork, and the remainder would be returned to her via a government cheque in the mail.
[5] “Thomas” stayed on the phone with Ms. Purohit while she attended at her local RBC branch and withdrew $15,000. “Thomas” then directed her to attend a Scotiabank and deposit $3,000 into an account belonging to Tarun Deep Singh Bal. “Thomas” then instructed her to attend a CIBC branch and deposit $12,000 into an account belonging to Kalpesh Solanki. Later that day, “Thomas” called Ms. Purohit again and instructed her to go to a UPS store and email the deposit receipts to a specified email address, and then to destroy the receipts.
[6] Throughout that day and in the following days, “Thomas” warned Ms. Purohit against telling anyone what she had done and against going to the police. After several days had passed and Ms. Purohit still had not received the government cheque promised to her by “Thomas,” she confided in a friend, who encouraged her to report the incident to the police. Ms. Purohit did so and was able to recover the $3,000 Scotiabank transfer.
II. Decision Below
[7] At the trial, the only witnesses were Ms. Purohit and Mr. Kalpesh Solanki, the owner of the account in which Ms. Purohit had deposited $12,000. It was not contested that Ms. Purohit was defrauded. The central issue to be determined was whether the appellant had participated in the fraud scheme.
[8] The only evidence linking the appellant to the alleged fraud was Mr. Solanki’s testimony. Mr. Solanki’s evidence was that he and the appellant were friends. The appellant contacted him and asked to use his bank account to make a transfer. The appellant had stated that his account was seized by the police due to an outstanding criminal charge, and that he needed Mr. Solanki’s assistance to receive money from someone in India for his legal fees. Mr. Solanki provided the appellant with his CIBC account information. Mr. Solanki testified that he agreed to do so because he and the appellant are both from India.
[9] Mr. Solanki further testified that on May 26, 2015, the appellant called him to confirm that the money had been deposited. The appellant asked Mr. Solanki to withdraw the $12,000, which Mr. Solanki did and gave to the appellant later that afternoon. Mr. Solanki did not receive anything in return.
[10] No evidence was tendered as to how or from whom the $3,000 was recovered. There was also no evidence as to the ownership of the email address to which “Thomas” asked Ms. Purohit to send the deposit receipts, and no evidence as to the ownership of the phone number from which “Thomas” called. The trial judge did not hear submissions from the Crown on these issues.
[11] The trial judge found Mr. Solanki to be a credible and reliable witness. He found that Mr. Solanki testified “calmly” and “in a straightforward way”, and that he was “a very believable witness”. The trial judge treated Mr. Solanki’s evidence with “special care”, recognizing that this evidence presumably had led to the withdrawal of charges against Mr. Solanki. Having regard to all the evidence, the trial judge convicted the appellant.
[12] The appellant was sentenced to two years’ incarceration less pre-trial custody credit at a 1.5 to 1 ratio. The trial judge also made a restitution order in the amount of $12,000 in favour of Ms. Purohit.
III. Issues
[13] The appellant raises two issues on his conviction appeal:
- Did the trial judge err by failing to provide reasons that were sufficient to allow for meaningful appellate review?
- Did the trial judge err by failing to turn his mind to other reasonable inferences aside from guilt and thereby rendering an unreasonable verdict?
IV. Analysis
(a) Sufficiency of trial judge’s reasons
[14] The appellant’s primary ground of appeal is the insufficiency of the trial judge’s reasons, which the appellant argues do not permit for meaningful appellate review. He contends that the trial judge’s reasons failed to sufficiently articulate how credibility concerns of the Crown’s main witness, Mr. Solanki, were resolved, and why alternative explanations inconsistent with guilt were rejected, which amounts to a reversible error.
[15] I disagree. A trial judge’s reasons must be read as a whole. Do the reasons achieve their intended function, which is to explain the result of the case? The reasons must justify and explain the results so that the losing party—in this case, the appellant—and just as importantly, interested members of the public, can satisfy themselves that justice has been done, or not, as the case may be: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 24.
[16] Viewed from a contextual perspective, reasons must achieve the function of preserving and enhancing meaningful appellate review of the correctness of the decision which factors in both errors of law as well as palpable and overriding errors of fact. As the Supreme Court in R. v. Sheppard noted, at para. 25:
…If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That provision limits the power of the appellate court to intervene to situations where it is of the opinion that
(i) the verdict is unreasonable,
(ii) the judgment is vitiated by an error of law and it cannot be said that no substantial wrong or miscarriage of justice has occurred, or
(iii) on any ground where there has been a miscarriage of justice.
(b) Assessment of Mr. Solanki’s credibility
[17] The appellant submits that because of the brevity of the trial judge’s reasons, they failed to sufficiently articulate how credibility concerns were resolved and why alternative explanations inconsistent with guilt were rejected.
[18] I disagree. The trial judge’s reasons adequately addressed the live issues at trial. The trial judge recognized that Mr. Solanki’s evidence was central to the Crown’s case and that his credibility was the main issue on which the evidence depended. The trial judge explained why he found Mr. Solanki to be a credible witness. Moreover, he cautioned himself with respect to his assessment of Mr. Solanki’s evidence, noting that Mr. Solanki may very well have had a motive to minimize his own involvement in the fraudulent scheme and thus cast the blame on others, such as the appellant. After all, it was Mr. Solanki’s bank account in which the fraudulent deposit was made, and he was the first person who was suspected by the police to have participated in the commission of the offence.
[19] The appellant further submits that there was no analysis of how the trial judge reconciled discrepancies in Mr. Solanki’s evidence or how he overcame evidence that on its face incriminated Mr. Solanki. In addition, the appellant submits that the trial judge over-relied on demeanour evidence in his credibility assessment and as well, failed to engage in a meaningful R. v. W.(D.), [1991] 1 S.C.R. 742, analysis. I disagree.
[20] The trial judge had the firsthand opportunity to hear all the evidence and observe all the witnesses.
[21] The appellant chose not to testify, as was his right. While this was not a factor that could be considered by the trial judge, it is a factor that can be considered on appeal. The trial judge ultimately found Mr. Solanki’s evidence to be credible and articulated why he did. It is not for this court to second-guess his credibility findings, unless it can be shown that he committed an error of law or a palpable and overriding error of fact. I am not satisfied that any such error was committed here. I agree with the submissions of the respondent that, beyond the special care and scrutiny that the trial judge was required to give to Mr. Solanki’s evidence, the trial judge was not required to explicitly resolve or explain any other issue pertaining to his credibility finding.
[22] In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82, the Supreme Court recently reiterated the long-standing principle that appellate courts ought to defer to trial judges on their credibility findings:
[81] … a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence.…Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt.…
[82] Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.…[Citations omitted.]
(c) W.(D.) analysis
[23] I also would not give effect to the appellant’s complaint about the trial judge’s W.(D.) analysis. I do not accept that the trial judge arrived at his decision by choosing between two different versions of evidence. As indicated by the respondent in its submissions, the case before the trial judge was a very straightforward and uncomplicated case. Given defence counsel’s concession at trial that the complainant had been the victim of a fraud, the trial judge effectively had only one issue to determine, which was whether he believed the evidence of the sole other witness, Mr. Solanki, that he received the $12,000 that the complainant deposited in his bank account at the behest and for the benefit of the appellant. The trial judge found Mr. Solanki to be a credible witness and accepted his evidence – accordingly, he found the appellant guilty. As has been held by this court and the Supreme Court of Canada, “[t]he paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused. [Citation omitted.] The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration”: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21.
(d) Demeanour evidence
[24] I also do not accept that the trial judge over-relied on the demeanour of Mr. Solanki in assessing his credibility. As this court has recently stated, “[t]he starting point is that although its admission may be somewhat rare, there is no bar to the admission of demeanour evidence”: R. v. Staples, 2022 ONCA 266, at para. 38. It is settled law that demeanour evidence is a factor that a trial judge is entitled to consider, provided it is not the exclusive determinant of his or her credibility assessment. As stated by this court in R. v. A.A., 2015 ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32:
[131] It is beyond dispute that demeanour is a factor the trier of fact is entitled to consider in assessing the credibility of witnesses and the reliability of their testimony.
[132] On the other hand, it is equally well settled that a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence. [Citations omitted.]
[25] While Mr. Solanki’s demeanour was one factor that the trial judge considered in his credibility assessment, it was not the only factor, nor was it the overriding factor. Mr. Solanki’s evidence was not contradicted by any other evidence. As pointed out by the respondent, his evidence was unshaken during cross-examination. As well, there was no internal inconsistency in the way that he testified or in the substance of his evidence.
[26] Furthermore, the trial judge found that Mr. Solanki gave his evidence in a straightforward and consistent manner, which is a factor that the trial judge was entitled to consider in his credibility assessment.
(e) Reference to Mr. Solanki’s police statement
[27] The appellant also takes issue with the following paragraphs in the trial judge’s reasons, suggesting that the trial judge placed undue weight on the fact that parts of Mr. Solanki’s testimony were consistent with his police statement.
[28] In summarizing Mr. Solanki’s evidence for the appellant, the trial judge stated:
His evidence is that, you asked him to allow you to use his Bank of Commerce account as a conduit, to allow money to be deposited there that he would withdraw and turn over to you.
When he gave that version of what transpired to the Hamilton Police and provided them with a picture of you that was available online, it led to your arrest and, presumably, to the withdrawal of charges against Mr. Solanki.
[29] The appellant argues that these paragraphs in the trial judge’s reasons are evidence that the trial judge violated the rule against reliance on prior consistent statements to bolster the witness’s credibility.
[30] While it is true that the trial judge referred to Mr. Solanki’s statement to the police, these paragraphs must be read within the overall context of the reasons and the live issues at trial, which include the submissions of counsel. When read as a whole, I am satisfied that the judge did not reference Mr. Solanki’s statement to suggest that Mr. Solanki was more believable because he gave an earlier version of his story to the police which was now consistent with his evidence at trial. Instead, the trial judge referenced Mr. Solanki’s statement to explain how the narrative of the case unfolded and how the charges came to be laid against the appellant and to be withdrawn against Mr. Solanki. Again, I do not place any weight on this argument.
(f) Consideration of reasonable inferences other than guilt
[31] The appellant submits that the trial judge failed to turn his mind to inferences inconsistent with guilt and therefore contributed to an unreasonable verdict.
[32] The applicable legal principle is set out by the Supreme Court of Canada, in the case of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, where the court stated:
A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered. Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence. [Citations omitted.]
[33] The appellant argues that the trial judge did not consider reasonable inferences other than guilt that arose from the evidence or lack thereof. I disagree.
[34] While it is settled law that cases based substantially on circumstantial evidence can only be proven if there are no reasonable inferences other than guilt, this was not such a case. This case was based neither wholly nor substantially upon circumstantial evidence. This was a case in which the direct viva voce evidence of the appellant’s friend implicated him as the perpetrator of the fraud. The appellant did not testify. The case depended on the credibility and reliability of the evidence of Mr. Solanki. The overriding issue in the case was the credibility of Mr. Solanki. I agree with the Crown’s submission that, having accepted Mr. Solanki’s evidence, the only reasonable inference open to the trial judge was that the appellant was guilty of fraud. The trial judge was entitled to find Mr. Solanki’s evidence both credible and reliable, and having done so, the inescapable conclusion was that the appellant was guilty of the offence.
[35] Furthermore, as indicated above, an appellate court’s role in reviewing a trial decision involving circumstantial evidence is circumscribed and limited to the principles outlined in R. v. Villaroman. In the case of R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 39 and 71, this court reiterated this principle:
[39] When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56.
[71] I approach our task in connection with this ground of appeal mindful of basic principles. A verdict is reasonable if it is one that a properly instructed trier of fact acting judicially could reasonably have rendered. In our application of this standard, we are to re-examine and, to some extent, within the limits of appellate disadvantage, to reweigh and consider the cumulative effect of the evidence adduced at trial. In this case, where the evidence on the controverted issue of knowledge is entirely circumstantial, our task is to determine whether a trier of fact, acting judicially, could reasonably have been satisfied that the appellant's guilt was the only reasonable inference available on the evidence taken as a whole. And we must also have in mind that it remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt.
[36] In all the circumstances, I am not satisfied that the appellant has established errors of law or palpable and overriding errors of fact in the trial judge’s decision that warrant appellate intervention. I am also satisfied that the trial judge’s reasons are sufficient and adequately serve the important functions for which they are intended. They attend to the dignity interest of the appellant by conveying to him why the decision was made. They provide for public accountability as they are discernible when placed in the context of the evidence, the submissions of counsel, and the narrative of the evidence and how the case unfolded at trial. Read as a whole, the reasons permit effective appellate review. As well, I am satisfied that when the reasons are read as a whole, within the context of the evidence and live issues at trial, the verdict is a reasonable one.
V. Disposition
[37] The appeal is dismissed.
Released: April 19, 2022 “M.T.” “M. Tulloch J.A.” “I agree. K. van Rensburg J.A.” “I agree. I.V.B. Nordheimer J.A.”
