Reasons for Judgment

Court File and Parties

COURT FILE NO.: 9/18 DATE: 2019-07-19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANAND DINDYAL

COUNSEL: M. Godinho, for the Crown S. Tejpal, for Anand Dindyal

HEARD: May 27-30, 2019

REASONS FOR JUDGMENT

Gibson J.

[1] Anand Dindyal (“Dindyal”) is charged with 11 counts on an Indictment dated January 10, 2018:

1. That between the 1st day of June, in the year 2016, and the 31st day of July, in the year 2016, both dates inclusive, at the Town of Halton Hills, in the said Region, he did commit an assault upon Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.
2. And further that between the 1st day of October, in the year 2016, and the 31st day of October, in the year 2016, both dates inclusive, at the City of Brampton, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.
3. And further that on or about the 13th day of December, in the year 2016, at the Town of Halton Hills, in the said Region, he did wound, maim, or disfigure Jennifer Hamp, thereby committing an aggravated assault, contrary to Section 268(1) of the Criminal Code of Canada.
4. And further that on or about the 30th day of December, in the year 2016, at the Town of Halton Hills, in the said Region, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.
5. And further that on or about the 30th day of December, in the year 2016, at the Town of Halton Hills, in the said Region, he did commit mischief by wilfully damaging without legal justification or excuse and without colour of right to property, to wit: the cellular phone of Jennifer Hamp, the value of which did not exceed five thousand dollars, contrary to Section 430(4) of the Criminal Code of Canada.
6. And further that on or about the 30th day of July, in the year 2017, at the Town of Halton Hills, in the said Region, he did commit an assault upon Jennifer Hamp using a weapon, to wit: a coffee mug, breakfast plate, and/or a butter dish, contrary to Section 267 (a) of the Criminal Code of Canada.
7. And further that on or about the 30th day of July, in the year 2017, at the Town of Halton Hills, in the said Region, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.
8. And further that on or about the 10th day of August, in the year 2017, at the City of Brampton, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault upon Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.
9. And further that on or about the 10th day of August, in the year 2017, at the City of Brampton, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault upon Jennifer Hamp using a weapon, to wit: a motor vehicle door, contrary to Section 267 (a) of the Criminal Code of Canada.
10. And further that between the 10th day of August, in the year 2017, and the 26th day of August, in the year 2017, both dates inclusive, at the Town of Halton Hills, in the said Region, he did commit an assault on Larzs Kovacevic or otherwise known as Larz Kovacevic, contrary to Section 266 of the Criminal Code of Canada.
11. And further that on or about the 2nd day of September, in the year 2017, in the City of London, in the said Region, and/or elsewhere in the Province of Ontario, he did commit an assault on Jennifer Hamp, contrary to Section 266 of the Criminal Code of Canada.

[2] Mr. Dindyal pleaded not guilty to all 11 counts on the Indictment.

[3] The trial proceeded before me as a judge alone trial.

[4] In explaining the Court's decision, I shall first review the facts of the case as they have emerged in the evidence heard by the Court, then instruct myself as to the applicable law, indicate the findings that I have made with regard to the credibility of certain witnesses, then apply the law to the facts in explaining the analysis that I have made, before indicating the court's determination as to finding on these charges.

Evidence

[5] The Crown called two witnesses: the complainant Jennifer Hamp, and D/Cst Stephanie Spencer, the Halton Region Police Service officer in charge of the investigation that led to charges in this matter.

[6] The evidence of D/Cst Spencer related to her interactions with Jennifer Hamp that ultimately led to the laying of the charges before the Court.

[7] Jennifer Hamp, who currently works as a project manager, described how she met Anand Dindyal when they were both working at a Le Chateau retail store at the Bramalea City Centre Mall in Brampton. She was the manager of the store, and he was a sales associate. There is a 14 year age difference between the two. Ms. Hamp was 34 at that time, and Mr. Dindyal had just turned 21. She is now 39, and he 25. They developed a relationship over time, and started to date on February 14, 2015, when they went to a Pickle Barrel restaurant at the mall. They broke up briefly in the fall of 2015, but soon got back together a week later. Ms. Hamp became pregnant as a result of their relationship, and had an abortion in January 2016. This became the source of much recrimination and dispute between the two.

[8] Theirs was evidently a tumultuous relationship, with frequent arguments and often heavy drinking of alcohol. Notwithstanding this, they spoke often of marriage and the prospect of having children together.

[9] Anand Dindyal moved into her house at 12 Delrex Boulevard, Georgetown in June 2016 while he was doing a landscaping job, and resided there with her and her son Larz Kovacevic, who is now 7, until the end of their relationship in September 2017. She conceived twice more as a consequence of their relationship, but both these pregnancies ended in miscarriages. At one point they went to a fertility clinic to explore options, but concluded that these were not affordable with their resources.

[10] Ms. Hamp testified that there was no violence between them before Anand Dindyal moved in, but a pattern of domestic abuse developed over time once he had, and that she was assaulted by Mr. Dindyal repeatedly, until she ended their relationship in September 2017. She made a complaint to police on September 27, 2017, which ultimately resulted in charges being laid, which are now being tried by this court.

[11] The Defence called the accused person Anand Dindyal, and his brother Samuel Dindyal.

[12] Anand Dindyal testified as to the development and progression of his relationship with Jennifer Hamp between early 2015 and September 2017. He offered an explanation in respect of each of the incidents alleged by Jennifer Hamp. He denied ever assaulting her.

[13] Samuel Dindyal testified about the damage he discovered to his brother Anand’s laptop computer, and what he observed of the events in the basement of his parents’ house in London on September 2, 2017.

[14] A number of photographs and documents were made exhibits in evidence. These included photographs of cuts and bruises on Jennifer Hamp, and medical reports in respect of her fractured left orbital bone.

The Law

[15] The first legal issue upon which I must instruct myself relates to the presumption of innocence and the legal standard of proof beyond a reasonable doubt.

[16] It is fair to say that the presumption of innocence is perhaps the most fundamental principle in Canadian criminal law, and the standard of proof beyond a reasonable doubt in order to displace the presumption of innocence is an essential part of the law that governs criminal trials in this country. Under Canadian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each essential element of the offence beyond a reasonable doubt. An accused person is presumed innocent throughout his or her trial until the trier of fact, weighing all of the evidence, makes his or her determination at the end of the trial.

[17] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution’s case, but to the total body of evidence upon which the prosecution relies to prove guilt. In order to secure a conviction, it is incumbent on the prosecution to prove each essential element of the offence charged to the standard of proof beyond a reasonable doubt. The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.

[18] The Court must find an accused person not guilty if it has a reasonable doubt about his or her guilt on all the essential elements of the offence after having considered all of the evidence.

[19] The term “beyond a reasonable doubt” has been used for a very long time. It is part of our history and tradition of justice.

[20] In R v Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model jury charge on reasonable doubt. The principles laid out in Lifchus have been applied in a number of Supreme Court and appellate court decisions. In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice; rather, it is a doubt based on reason and common sense. It is a doubt that arrives at the end of the case, based not only on what the evidence tells the court, but also on what that evidence does not tell the court. The fact that the person has been charged is no way indicative of his or her guilt.

[21] In R v Starr, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court of Canada declared that:

... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities....

[22] On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person beyond a reasonable doubt. To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[23] The second legal issue is the assessment of the testimony of witnesses. Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed or what they did. It could be documents, photographs, videos, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the prosecution or the defence, and matters of which the court takes judicial notice.

[24] It is not unusual that some evidence presented before the court may be contradictory. Often, witnesses may have different recollections of events. The court has to determine what evidence it finds credible and reliable.

[25] Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’ opportunity to observe events, as well as a witness’ reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial?

[26] The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant or argumentative? However, demeanour must be assessed with caution, and should be assessed in conjunction with an assessment of whether the witness’ testimony was internally consistent, that is, consistent with itself, and externally consistent with the other uncontradicted or accepted facts in the evidence.

[27] The Court of Appeal for Ontario, and the Court Martial Appeal Court, have cautioned against over-reliance on demeanour as a factor in assessing the credibility of witnesses and the reliability of their evidence.

[28] Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious, and it may well taint a witness’ entire testimony.

[29] The Court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The court may accept the evidence of a particular witness in total, in part, or not at all. In Captain Clark v. The Queen, 2012 CMAC 3, the Court Martial Appeal Court has given very clear guidance as to the assessment of credibility of witnesses. Justice Watt for the court elaborated the governing principles:

First, witnesses are not “presumed to tell the truth.” A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption, except the presumption of innocence [of the accused person.]

Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to reject uncontradicated evidence. [A trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings.]

[30] Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification. Credibility is not co-extensive with proof.

[31] As Justice Watt indicated at para. 48 of Clark:

Testimony can raise veracity and accuracy concerns. Veracity concerns relate to a witness’ sincerity, his or her willingness to speak the truth as a witness believes it to be. In a word, credibility. Accuracy concerns have to do with the actual accuracy of the witness’ account. This is reliability. The testimony of a credible, in other words an honest witness, may nonetheless be unreliable.

[32] The concept of reasonable doubt applies to credibility. The accused person Anand Dindyal gave evidence at the trial, and that evidence was a denial of most of the essential elements of ten of the offences charged on the Indictment.

[33] Given this, the Court must focus its attention on the analytical process specified in the reasons for decision of Justice Cory in the Supreme Court of Canada case of R v W.(D.), [1991] 1 S.C.R. 742, for cases such as this where the accused has testified and that evidence essentially constitutes a denial of one or more of the essential elements of the offence.

[34] The test in W.(D.) applies in cases where the accused gives evidence. However, the principles of W.(D.) will also apply in any case where a crucial issue turns on credibility: R. v. F.E.E., 2011 ONCA 783, per Watt J.A. at para. 104. The W.(D.) test applies not only to an accused’s testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: R. v. B.D., 2011 ONCA 51, per Blair J.A. at paras. 113-114, and R. v. Cyr, 2012 ONCA 919, per Watt J.A. at para. 50.

[35] The guidance in W.(D.) provides as follows:

a. first, if I believe the evidence of the accused, then I must acquit; b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[36] In R v J.H.S., 2008 SCC 30, at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R v H.(C.W.) (1991), 68 C.C.C. (3d) 146 (BCAA) where Wood J.A. suggested the additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.”

[37] The third issue relates to the essential elements of the offence.

[38] The essential elements of the offence of Assault contrary to s.266 of the Criminal Code on Counts 1, 2, 4, 7, 8, 10 and 11 are:

1. that Anand Dindyal intentionally applied force to Jennifer Hamp (or to Larz Kovacevic in relation to Count 10);
2. that Jennifer Hamp (or Larz Kovacevic in relation to Count 10) did not consent to the force that Anand Dindyal intentionally applied; and
3. that Anand Dindyal knew that Jennifer Hamp ( or Larz Kovacevic in relation to Count 10) did not consent to the force that Anand Dindyal intentionally applied.

[39] The essential elements of the offence of aggravated assault contrary to s.268(1) of the Criminal Code on Count 3 are:

1. that Anand Dindyal intentionally applied force to Jennifer Hamp;
2. that Jennifer Hamp did not consent to the force that Anand Dindyal intentionally applied;
3. that Anand Dindyal knew that Jennifer Hamp did not consent to the force that Anand Dindyal intentionally applied; and
4. that the force Anand Dindyal intentionally applied wounded, maimed or disfigured Jennifer Hamp.

[40] The essential elements of the offence of assault with a weapon contrary to s.267 (a) of the Criminal Code on Counts 6 and 9 are:

1. that Anand Dindyal intentionally applied force to Jennifer Hamp;
2. that Jennifer Hamp did not consent to the force that Anand Dindyal intentionally applied;
3. that Anand Dindyal knew that Jennifer Hamp did not consent to the force that Anand Dindyal intentionally applied; and
4. that a weapon was involved in Anand Dindyal’s assault of Jennifer Hamp. A weapon is anything used, designed to be used or intended for use in killing or injuring anyone or for the purpose of threatening or intimidating anyone.

[41] The essential elements of the offence of mischief contrary to s.430(4) of the Criminal Code on Count 5 are:

a. That Anand Dindyal interfered with property; b. That Anand Dindyal’s conduct was unlawful; and, c. That Anand Dindyal’s conduct was wilful.

Position of the Crown

[42] The position of the Crown was that Jennifer Hamp was a credible witness. She agreed that she had not told police, family or friends about the various incidents before September 2017, and that her explanation about why she had lied about some of her injuries made sense: she felt embarrassed that she had once again gotten into an abusive relationship, with a student who was 14 years her junior. It contended that she had nothing to gain from making the allegations, and did not stand to receive any financial benefit. It contended that the evidence of Anand Dindyal was not credible, and that he should be convicted on all 11 counts.

Position of the Defence

[43] The Defence conceded that Count 5 (Mischief in relation the damaged cellphone) had been made out. Otherwise, in respect of the remaining counts, it contended that Anand Dindyal had offered a reasonable explanation of all of the incidents, and that there was not an air of reality to much of Jennifer Hamp’s account.

Analysis

[44] I will now turn to an assessment of the evidence in this case, and whether the prosecution has met its burden of proving the guilt of the accused on each essential element of the offence, to the standard of proof beyond a reasonable doubt.

[45] Applying the W.(D.) analytical framework, I start with the evidence of the accused Anand Dindyal. As amplified in respect of each count on the indictment in more detail below, I do not accept the evidence of the accused. While Mr. Dindyal had an explanation in respect of each of the incidents in which an assault was alleged, this struck me as a contrived and calculated performance. His evidence was not internally consistent, and not externally consistent with the other evidence that I do accept. Often, it was simply implausible.

[46] I then turn to assessing whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[47] I will start by an assessment of the credibility and reliability of the evidence of the two witnesses called by the prosecution, mindful of the guidance of appellate courts described earlier.

[48] I found D/Cst Spencer to be credible witnesses, and I accept her evidence about what transpired regarding her interactions with Jennifer Hamp.

[49] I found the complainant Jennifer Hamp to be a credible witness. She gave her evidence in a straightforward manner without undue embellishment, and provided a detailed account in respect of each count on the indictment. Her evidence was not substantially shaken on cross-examination. Moreover, as submitted by the Crown, she has no reason to lie, to fabricate or to embellish the accusations against Anand Dindyal.

[50] I shall now turn to an assessment of the evidence in respect of each count on the Indictment.

Count 1 Assault June-July 2016 Halton Hills

[51] Jennifer Hamp testified that violence began shortly after he moved in to her house in Georgetown. In June or July 2016, they were arguing in the living room of her home. She became frustrated, and turned her back on him. He pushed her from behind. The push was forceful enough to cause her to fall to her knees. It was painful on her knees. She popped up and spun around. She called him a coward, and he was immediately apologetic.

[52] Anand Dindyal testified that, on this occasion, they were drinking a lot at her home, and she took his laptop computer and cellphone and brought up photos of girls, and accused him of knowing them. She then threw his phone and laptop outside. He said that she stepped in front of him to block him when he tried to go retrieve these items. He turned sideways trying to squeeze past her. He contacted her with his hip, and she fell to the ground. She accused him of pushing her, and he apologized. He said his laptop sustained a dislodged memory chip, which his brother Samuel later repaired.

[53] I do not believe the account of Mr. Dindyal concerning this incident, and I am not left in a reasonable doubt by it. It struck me as contrived and too convenient.

[54] I accept the account of Ms. Hamp concerning this incident.

[55] All of the essential elements of assault are made out in respect of this Count.

Count 2 Assault October 2016 Brampton

[56] Jennifer Hamp testified that another incident of assault occurred in October 2016 at the then home of Anand Dindyal’s parents’ house at 12 Northampton Drive, in Brampton. After an uncomfortable conversation with his parents about her previous partner, Larz’s father, she went to bed downstairs. Anand came down and told her that he was angry that she did not respond to his parents’ questions. He grabbed her and threw her back on the floor. He put his hand on her neck, and raised a fist over her head. This resulted in her having a sore back. She was pregnant at that time. She did not report to police or seek medical attention.

[57] Anand said that when he went downstairs to talk to her, Jennifer brushed by him into the bathroom, and pushed her shoulder into him. Mr. Anand, who used to wrestle in high school, said he used a footsweep to “bring her to the ground”, and held her to calm her down.

[58] I do not accept the account of Mr. Dindyal concerning this incident, and am not left in a reasonable doubt by it. In any event, even on his account, since this involved touching without consent, it would constitute an assault.

[59] I accept the evidence of Jennifer Hamp concerning this incident.

[60] On the evidence, all of the essential elements of assault are made out.

Count 3 Aggravated Assault December 13, 2016 Halton Hills

[61] Shortly after the previous incident, Ms. Hamp had a miscarriage. She and Anand were arguing frequently. She blamed him for the miscarriage. Having come home from work on this day, she said that she had a massive headache, and took a number of Tylenol pills (4-5, she said) and a swig of beer. Anand shoved a finger of his right hand in her mouth in an attempt to get her to vomit the pills. She bit down on his finger. He elbowed her in the face with his right arm. This resulted in a fractured orbital bone on the left side of her face, which caused excruciating pain. The eye swelled shut. She iced it continuously, but it did not improve. She went to the hospital in Georgetown the next day. She lied to a nurse in saying that it was not the result of domestic abuse, and told a story about being injured in a fight in a bar. After a series of referrals, she had reconstructive surgery on Christmas Day 2016 in Hamilton. Affidavits of the doctors involved in her diagnosis and treatment were made exhibits in evidence. She did not tell her parents, because she did not want to again put them through the trauma associated with the previous instances of domestic abuse involving her husband. She stayed with her parents until December 29, 2016, and was off work for four weeks.

[62] Jennifer Hamp testified that at that time she was 5’0”inches tall, and weighed 115 pounds. She said that Anand Dindyal was 6’2” and weighed 230 pounds.

[63] Anand testified that she was drinking big glasses of pinot grigio white wine, and had become depressed talking about the abortion. She grabbed a bottle of Advil, put a handful of Advil in her mouth, and took a big gulp of wine. He felt shocked. She did not answer when he asked her why she had done that. He was concerned that she was trying to harm herself. He told her to spit the pills out. She did not so do. He went over to her. She turned to the side, almost perpendicular to him. He put a finger in the left side of her mouth to try to induce her to vomit the pills up and out. She bit on it. All in one motion, he pulled his finger out and turned away, her head moved, and his elbow contacted her face. He insisted that it was an instinctive and spontaneous reaction, and that his elbow contacted her face because of the height differential between them. He denied that he pressured her to lie to the medical staff at the Georgetown hospital when they asked if the injury was the result of domestic violence.

[64] I do not accept the account of Anand Dindyal concerning this incident, and I am not left in a reasonable doubt by it. The amount of force required to smash Jennifer Hamp’s orbital bone to the degree the evidence establishes it was, would far exceed the amount of force that would be transmitted by accident in the manner depicted by him. Moreover, the physical demonstration he provided of what he said happened was very evidently contrived and thoroughly rehearsed. And, as the Crown suggested, if he had such a concern that she might die from the effect of the pills, why did he entirely cease to address that once he had injured her face? This is not consistent or logical.

[65] I accept the account of Jennifer Hamp as to what transpired during this incident. I assess that the injury inflicted upon Jennifer Hamp would satisfy the criteria of wounding, maiming or disfiguring Jennifer Hamp.

[66] The elements of aggravated assault are made out by the evidence in respect of this count.

Count 4 Assault December 30, 2016 Halton Hills

[67] Jennifer Hamp testified that, on 30 December 2016, five days after her surgery, she was still not seeing properly, and was very angry with Anand. During an argument, he picked her up by the back of her pants, and the collar of her shirt, swung her, and threw her like a rag doll towards a couch. She hit face first into the corner of the sectional couch. This bent her neck back, and resulted in a fabric burn on her face. This threw her back out. She got up on the couch, and remained largely on the couch for two or three days thereafter. She did not report this incident to police, and did not tell her family.

[68] Anand testified that, while in the course of an argument during which she taunted him, he utilized a wrestling arm drag, stepped to the side, and redirected her over to the couch. He insisted that he did not do this to hurt her. Her momentum carried her further into the living room, she fell on one or both knees, and her head grazed the bottom right side of the front of the sofa. He rushed over to help her up. They lay down on the sofa and fell asleep.

[69] I do not believe the account of Mr. Dindyal concerning this incident, and I am not left in a reasonable doubt by it.

[70] Even on his account, this would constitute an assault.

[71] I accept the evidence of Jennifer Hamp concerning this incident.

[72] The essential elements of assault are made out by the evidence in respect of this count.

Count 5 Mischief December 30, 2016 Halton Hills

[73] Jennifer Hamp testified that on December 30, 2016, at her home in Georgetown, Anand grabbed her iPhone 5 S cellphone, and smashed it on the floor. It cracked, had no power, and was not able to function. She emailed her boss Charles Budahazy to procure another phone.

[74] Anand testified that he did smash the phone in a fit of anger.

[75] In her final submissions, defence counsel conceded that the offence of mischief had been made out in respect of the cell phone.

Count 6 Assault with a Weapon July 30, 2017 Halton Hills

[76] Jennifer Hamp testified that in March 2017 she had a miscarriage. This led to further strains between them. In July 2017, there was a family gathering of her family at her parents’ house, a few minutes’ drive away from her own house in Georgetown. There was a dispute between her and Anand as to whether he would attend. She had gone to her parents’ house, then returned to her own in an effort to persuade him to attend the gathering at her parents’ house. They got into an argument. He picked up a plate, and threw it at her head. She dodged, and it whizzed by her head. It smashed against the wall, creating an egg stain on the wall which she subsequently photographed some months later. He then threw a cup of coffee at her, which smashed against the wall. She later took photos of the coffee stains on the wall, in November 2017, whilst cleaning her house.

[77] Anand denied that he threw a plate or coffee mug at Jennifer. Moreover, the Defence contended in cross-examination of Jennifer Hamp, and in argument, that the position of the sofa would preclude stains in the location they were found. I am satisfied that Jennifer Hamp offered a viable explanation concerning the placement of cushions that would negate this argument.

[78] I do not believe the denial. I accept the account of Jennifer Hamp, which is corroborated in part by the photos of stains on the wall introduced in evidence. I consider that a plate and coffee mug would satisfy the criteria of what constitutes a weapon as anything used or intended for use in injuring anyone or for the purpose of threatening or intimidating anyone.

[79] The elements of assault with a weapon are made out by the evidence on this count.

Count 7 Assault July 30, 2017 Halton Hills

[80] Jennifer Hamp testified that, immediately after throwing the plate and the coffee cup, Anand then stood up and came at her, putting his arm around her throat, picking her up, and dangling her in the air. Her feet were dangling. He then slammed her on the ground, got on top of her, and started to choke her. He squeezed her throat hard enough that she could not breathe. She was gasping and choking, and screamed that he was choking her. She was scared. She could barely breathe. After maybe a minute, he pulled his hand away and went outside. She was crying, scared, got water, tried to breathe. She had been thrown very hard on her back, and her back and around her neck were sore.

[81] Anand testified that they were having a verbal argument, and that she pushed on his chest with her hands. He placed his right hand on her upper chest, and left around her shoulder, and “brought her to the ground.” Eventually, they went to the party.

[82] I do not accept the evidence of Ananda Dindyal in respect of this incident, and I am not left in a reasonable doubt by it. Even on his account, their interaction would constitute an assault.

[83] I accept the evidence of Jennifer Hamp regarding this incident.

[84] The essential elements of assault are made out by the evidence in respect of this count.

Count 8 Assault August 10, 2017 Brampton

[85] Jennifer Hamp testified that, around August 10, 2017, she went with Anand to a party at the house of a friend in Brampton. His friends were all contemporaries of Anand, significantly younger than her, as there was a 14-year age gap between them. She drank some alcohol, and fell asleep on the deck. He woke her from her sleep, and she muttered that he was lazy. He was furious with her, and escorted her to his car, a silver 2005 Honda Civic, which was parked on the street nearby. Once in the car, she decided that she did not want to be there, and tried to get out of the car while it was moving. He grabbed her face to keep her in the car, digging his fingers into her face. She screamed and hopped out of the car while it was moving, and started running down the street. He stopped the car, chased her, tackled her, and brought her back to the car, muscling her back, pushing and shoving. He then picked her up and threw her into the car through the passenger door. She landed face first in the driver’s seat, her legs sticking out of the open passenger door.

[86] Anand testified that, while at the party, Jennifer drank to excess, contrary to her earlier promise to be the designated driver. She passed out in a chair on the deck. He was embarrassed, and tapped her on the shoulder to waken her. She gave him a dazed look, and said “you’re a lazy fuck.” She got up and stormed off, walking ahead of him. He grabbed her purse off the deck and followed. She was wobbling drunk down the middle of the street. She walked past the car. He opened the door, and put her purse inside. He called her, and she stopped 10 or 11 feet in front of the car. He was behind her, on her right side. He placed his right hand on her. She fell to the ground in the middle of the road. He helped her back to the car. He put his left arm around her, and right under her armpit. He directed her where to go. He got her into the car, placing her into the car, and she fell back into the seat. He buckled her up, and went to close the door. Her leg was still sticking out, although he did not see it. He apologized for the door striking her leg.

[87] I do not accept the evidence of Anand Dindyal regarding this incident, and I am not left in a reasonable doubt by it.

[88] I accept the evidence of Jennifer Hamp regarding this incident.

[89] The essential elements of assault are made out by the evidence on this count.

Count 9 Assault with a weapon August 10, 2017 Brampton

[90] Jennifer Hamp testified that, immediately after he had thrown her into his car through the open passenger door, he grabbed the door and started slamming it on her legs. Her legs were still sticking out through the door opening. She started screaming. He told her to “shut the fuck up” and hit her legs forcefully with the car door, 4-5 times. She pulled her legs into the car, and he shut the door. She was angry, and sore, and hurt, and scared. Photos of the bruises Jennifer Hamp says she sustained were made exhibits in evidence. They depict a bruise on her bicep which she says he caused while trying to get her back into the car, a cut under her chin and under her eye, cuts on her face, a large bruise on her forearm, and bruises on her shin. She said that she could not go to work the next day, and could barely walk. She did not report this incident at that time to police, family or friends.

[91] Anand testified that after he did a three-point turn, he started driving away from his friend Charlie’s house. He was driving down the street at 40 kmh at this point, when she unbuckled her seatbelt, and opened the door trying to get out. He kept his left hand on the steering wheel and grabbed at her, just trying to hold her in. He stopped the car at one point, and she calmed down. They then drove home.

[92] I do not accept the account of Anand Dindyal, and I am not left in a reasonable doubt by it. The Defence contended on cross-examination and in argument that if Jennifer Hamp’s head was on the driver’s seat, she at five feet tall was too short for her legs to protrude out of the passenger side. No evidence was offered as to the actual width of a 2005 Honda Civic, but it is incontestably a small and narrow car. I am satisfied that, even given her short stature, it was entirely possible that Jennifer Hamp’s legs would in this circumstance protrude out the passenger side door.

[93] I accept the evidence of Jennifer Hamp regarding this incident. There are photographs to substantiate that she suffered some bruising to various parts of her body as a result of this incident.

[94] I am satisfied that in this circumstance a car door could satisfy the definition of a weapon. The essential elements of assault with a weapon are made out by the evidence on this count.

Count 10 Assault on Larz Kovacevic between August 10-26, 2017 Halton Hills

[95] Jennifer Hamp testified that, shortly after the incident concerning the car door, Anand was cutting her son Larz’s hair at home. They had stopped taking Larz to a hair salon both because he was restive there, and because of the expense. Larz was sitting on a stool in the living room. He was fussing. Anand grew increasingly upset. Anand grabbed Larz by the hair, hoisted his posterior off the stool, and shaved down the middle of his head. She started screaming, “what the fuck is the matter with you?” Anand told her to calm down, and shaved the rest of Larz’s head. She said that Larz was terrified. Larz did not give a statement to police.

[96] Anand testified that while cutting Larz’s hair, he accidently nicked his ear. He told Larz to stop moving, and said that he would just cut his hair shorter. With his left hand resting on Larz’s head, he took the clippers to the right side of his head and started trimming it. He said that Jennifer then “lost it” and said “what the fuck are you doing?” He finished off quickly. He denied that he was trying to teach Larz a lesson or that he had any intention of hurting Larz.

[97] I do not accept the evidence of Anand Dindyal regarding this incident, and am not left in a reasonable doubt by it.

[98] I accept the account of Jennifer Hamp regarding this incident.

[99] It is evident that Larz did not consent to the manner in which Anand touched him to shave his head, nor did Jennifer give deemed consent as his parent. Anand had no independent authority as a parent in this circumstance to consent on Larz’s behalf.

[100] The essential elements of assault are made out by the evidence on this count.

Count 11 Assault September 2, 2017 London

[101] Jennifer Hamp testified that on the Labour Day Weekend in September 2017 she and Larz accompanied Anand to his parents’ new home in London. She was still furious with Anand concerning the incident about Larz’s hair. They had a dispute. She had been drinking beer. She wanted to leave, but Anand prevented her by taking her car keys. He pushed her and shoved her into their bedroom in the basement of the home. She fell onto the floor. His two brothers came running to see what was happening. Samuel Dindyal gave her a hug.

[102] Anand testified that he did not push her down. While reaching around her to grab her keys to prevent her from attempting to drive while impaired, he bumped into her with his thigh, and she fell into the bed. He got the keys, and held him behind his back. That is when his brother Samuel came into the room.

[103] Samuel testified that when he came into the room, Jennifer was in mid fall, and Anand was standing with his hand behind his back, with the keys. Jennifer had been drinking, and was stumbling when she got back onto her feet. She did not seem to be injured.

[104] On this count, I have a reasonable doubt that the contact between Anand and Jennifer was intentional on his part.

[105] In summary, I accept the evidence of Jennifer Hamp as to what transpired with regard to Counts 1-10, and I do not accept the evidence of Anand Dindyal.

[106] I have a reasonable doubt on the essential element of intentional touching with regard to Count 11.

[107] The following day, Jennifer Hamp ended the relationship. She told his parents that their relationship was over, and drove back to her house in Georgetown. Anand did not come with her. He subsequently came to her house in Georgetown with his brother and father to move his things out of her house. She made a complaint to Anand’s father on that occasion.

[108] Jennifer Hamp subsequently sent a text to Anand’s mother outlining what she said had transpired, but did not receive a response. After a conversation with a friend in which she divulged what had happened to her, she contacted police and subsequently gave a statement.

[109] This ultimately led to the charges currently before this court.

[110] One of the issues raised by the Defence was a lack of contemporaneous or timely complaint by Jennifer Hamp. This, it contends, suggests that there is not an air of reality to her account.

[111] I would disagree with such an assertion. As is not uncommon in historical sexual offence cases, the disclosure of some of the alleged offences in this case was delayed by some months after the date of the alleged occurrences. In this connection, it is important to bear in mind what the Supreme Court of Canada has said about delayed disclosure. There is no inviolable rule on how people who are the victims of trauma will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least potentially include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. It would be an error to rely on pre-conceived views about how victims of traumatic related offences would behave.

Verdict

[112] The Court finds Anand Dindyal guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 on the Indictment.

[113] The Court finds Anand Dindyal not guilty on Count 11.

Gibson J.

Released: July 19, 2019