CITATION: R. v. Anand, 2026 ONSC 3436
COURT FILE NO.: CR-25-191-00AP
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
B. Jackson, for the Crown
Crown
- and -
SUNIL ANAND
M. Halfyard, for the Defence
Defendant
HEARD: February 27, 2026
SUMMARY CONVICTION APPEAL RULING
[On Appeal from the Judgment of Justice L. Daviau, dated December 10, 2024]
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Mirza J.
OVERVIEW
1The Appellant, Sunil Anand, was found guilty on December 10, 2024, in the Ontario Court of Justice in Brampton on two counts: sexual assault (s. 271 of the Criminal Code) and sexual interference (s. 151 of the Criminal Code).
2When K.C. was 12 years old, she met with the Appellant, a registered homeopathic practitioner at his home office, at the direction of her parents because they were concerned about her health, behaviour, and their relationship.
3The trial judge found K.C. was credible and determined that during a private examination, the Appellant asked K.C. to lift her shirt and he touched her breasts under her bra. This occurred while the Appellant and K.C. were alone for an assessment. K.C.’s parents were waiting outside in the car, after meeting with the Appellant earlier. The Appellant’s son was home in another room.
4The Appellant testified and denied touching K.C. sexually. He said that he conducted a professional examination and assessment.
5Defence counsel at trial argued that K.C. had a motive to lie because she did not want to continue with the Appellant’s care. K.C. did not like the Appellant. She was upset by his comments about her being overweight and direction to use her computer tablet less, which was an ongoing point of discord with her parents.
6The Defence position was that K.C. fabricated the complaint to her friend during a text sequence after she left the Appellant’s office. She told her mother shortly after because she wanted to avoid attending another appointment with the Appellant. The Defence relied in part on a series of text messages that K.C. sent to her online friend, Christina, at different times the same day to support that the touching accusation did not occur until after the motive to lie crystallized. Based on the sequence and timing of the messages, the Appellant submitted that K.C.’s motive to lie unfolded sufficiently after a follow-up appointment was made with the Appellant and K.C. was with her parents driving home, having resumed communicating with her friend. K.C. then proceeded to gradually tell her mother about the incident after telling her friend.
7The Defence also relied on the Appellant’s good character and argued other credibility issues such as inconsistencies in K.C.’s evidence to advance their position.
8The trial judge rejected the Appellant’s evidence.
9The trial judge rejected that K.C. had a motive to lie, finding it unlikely, based in part on findings about the timing of K.C.’s text messages to her friend about the sexual touching.
10The trial judge convicted the Appellant on both counts. One count was ultimately stayed on April 25, 2025, due to the rule against multiple convictions in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
11The Appellant raises multiple grounds of appeal discussed below.
12For the reasons that follow, I grant the appeal on the misapprehension of evidence ground correlated to the assessment of K.C.’s motive to lie.
ISSUES
13The Appellant advances four grounds of appeal:
i) The trial judge failed to address a material inconsistency relied upon by the Defence.
ii) The trial judge improperly confined the W.(D.) analysis to only the Appellant’s evidence and thereby failed to consider the impact of the Appellant’s son’s corroborative evidence and the good character evidence, as it related to the second branch of the W.(D.) analysis.
iii) The trial judge failed to deal with the good character evidence provided by Ms. Shaikh, both in failing to apply the test for good character evidence and/or in providing insufficient reasons.
iv) The trial judge materially misapprehended the evidence of when the complainant texted her friend, Christina, and disclosed the sexual touching allegations. This adversely impacted the judge’s findings on the motive to lie.
SUMMARY OF THE EVIDENCE
14The complainant, K.C., was 12 years old at the time of the incident. She was 13 years old at the time of the trial.
The Evidence of R.C.
15The complainant’s mother, R.C., testified with a Punjabi interpreter. She stated that the Appellant, a registered homeopath, was referred to her by a family friend. She wanted help with K.C.’s health issues, such as acne and hormone changes. In cross-examination, R.C. agreed that there were other problems at home due to K.C.’s behaviour. Also, she was concerned that K.C. was using her computer tablet too much. In cross-examination, R.C. eventually agreed that these family problems were discussed with the Appellant.
16R.C., her husband and children, including K.C., attended a meeting with the Appellant at his home office in March 2023. R.C. described the open layout of the room where they met and the surrounding area of the home. She said that during the discussion, the Appellant spoke to her and her husband, and asked K.C. about her health and life. A second appointment was scheduled for April 22, 2023.
17On April 22, 2023, R.C. and the family met the Appellant at his home office again for another session. They did not see anyone else in the home. R.C. discussed that K.C.’s acne and behavioural problems had not improved since their last visit. She said that the Appellant discussed that K.C. had gained weight. Then the Appellant asked to meet with K.C. in private and requested that the family either go into another room or wait in their car for five or ten minutes. The Appellant would text the parents to return when they were done. The parents decided to wait in their car. When R.C. returned about ten minutes later, she observed that her daughter looked pale.
18The Appellant went to get medicine, and R.C. asked K.C. what happened. K.C. replied to her mother that nothing happened. R.C. said the Appellant came back and said that K.C. had weight gain. R.C. said that she did not book another appointment. It was suggested that an appointment was scheduled for June 24, 2023 at 12:00 p.m. as per the Appellant’s notes, but R.C. did not agree.
19On the drive home, which took an hour, R.C. asked her daughter what happened but she did not tell her. At an ONroute stop, K.C. said to her mother that she was not going to another appointment again with the doctor.1 They got home at around 8:00 or 8:30 p.m., and around 9:00 p.m., K.C. told her mother that the doctor touched her sexually earlier that day. They spoke again at around 11:00 p.m. or 12:00 a.m., and then R.C. called the police.
The Evidence of K.C. and the Central Text Message Evidence
20In cross-examination, K.C. accepted that during an earlier meeting on March 25, 2023, she and her mother met with the Appellant and that her mother had discussed arguments between them about various topics. K.C. also agreed that during the meeting with the Appellant that they discussed problems at home and at school. In particular, her parents did not approve of some of her conduct and excess use of a computer tablet.
21K.C. agreed that she did not ask for another session, but her parents had scheduled another appointment.
22In K.C.’s police statement, admitted as her primary examination-in-chief evidence pursuant to s. 715.1 of the Criminal Code, she said that during her April 22, 2023, appointment with the Appellant at his home, her parents left the room so that the Appellant could speak with her privately.
23During this private discussion, the Appellant asked about her ADHD and her dry skin. The Appellant used a stethoscope to check her back and told her to lift her shirt and, at this point, he rubbed her neck. He then told her to put her shirt down at the back and to lift her shirt from the front. He commented that she needed to work on her stomach muscles (abs) because they were not good.
24He weighed her and said that she had lost some weight since her last visit but that she could lose more weight. K.C. agreed in cross-examination that she was very insecure about her weight, and that she did not like that he told her she should lose weight. She also did not like that he told her to use the tablet less.
25K.C. testified that the Appellant told her to lift her shirt higher and then he grabbed her breasts, under her bra. This touching lasted a couple of seconds. The Appellant then continued with the examination. During cross-examination, K.C. was challenged on her evidence about how long the assault lasted, indicating the touching of her breasts was seconds but stating the entire assault was about two minutes. The examination took between five to ten minutes.
26The first person K.C. told about the incident was her friend, Christina, over text messages, using a tablet. Christina was an online friend that lived in California. They had not met in person, and their relationship was online only. K.C.’s father did not approve of their friendship.
27The Crown tendered two segments, or exchanges, of text messages between K.C. and Christina about the incident. It was agreed that the messages were not the entirety of their texts, as the mother recovered what she was able to from K.C.’s phone. K.C. testified that there were other text messages that she discovered after speaking to the police, but they were not produced and not tendered at trial. She said that the other messages could have been from earlier that day or the next day.
28The central text messages admitted at trial between K.C. and Christina began when K.C. was at the Appellant’s office, after the examination. K.C. said that her parents were present when she messaged Christina, “[H]ey I’m back. I’m about to cry. [M]y doctor just did something.” Christina asked why she was about to cry and K.C. said she would tell her in 20 minutes. K.C. testified that she did not tell Christina about what actually happened while at the Appellant’s home office.
29K.C. accepted that she was upset about the Appellant’s comments about her weight and telling her to use the tablet less but denied that she did not want to see him again because of his comments. The trial judge found that this first text correspondence between K.C. and Christina was after the examination and before the next appointment was made.
30Their text messages paused, and after about 20 minutes, K.C. resumed messaging Christina. By this time, K.C. was with her parents driving home in their car. In this second sequence of text messages, K.C. had a back and forth with Christina. This exchange continued with Christina asking questions and resulted in K.C. specifically stating that she had been touched sexually by the Appellant during the assessment.
31The Defence position was that K.C. had a motive to lie because she did not like the Appellant. She did not want to have to go to another appointment with the Appellant. The false allegations were made because she did not want to continue to receive treatment from the Appellant and not because she was touched sexually by him.
32Since the two passages of the text messages between K.C. and Christina are central to the determination of this appeal, I reproduce them below:
i) April 22 at 5:41 p.m. at the Appellant’s home:
K.C. texts:
“hey I’m back”
“I’m about to cry”
“my doctor just did something”
Christina replies directly to K.C.’s message – “I’m about to cry”:
“why???”
K.C.:
“I’m about to”
“cry”
Christina replies directly to K.C.’s message – “my doctor just did something”:
“what did he do”
K.C.:
“I’ll tell you in 20min”
“I’m still here”
“got to go”
Christina:
“o ok”
K.C.:
“bye!!”
Christina:
“bye”
ii) April 22 at 6:00 PM, K.C. resumes the text conversation while in her parents’ car driving home:
K.C.:
“sorry”
“I’m back”
“I’m smiling”
“but I’m about to cry”
Christina replies directly to K.C.’s message – “but I’m about to cry”:
WHY!?!?!?!?
K.C.:
“I don’t like the doctor”
“he’s weird”
(sad face emoji with tear from right eye)
“and creepy”
Christina:
“what did he do”
K.C.:
“u promise me you won’t tell everyone
“please” (hand prayer sign)
“don’t tell anyone”
Christina:
“I promise”
K.C.:
“so”
Christina replies directly to K.C.’s message – “don’t tell anyone”:
“I won’t tell”
K.C.:
“he told my parents to leave so he could talk to me by himself”
“and it was ok”
Christina responds directly to K.C.’s message – “he told my parents to leave so he could talk to me by himself”:
“do I need to kill him”
K.C.:
“maybe but then he told me to take my hoodie off and started checking my heart rate”
“normal”
“but “
“it gets worse”
“he told me to lift my shirt from the back so he could check my heartbeat from the back”
“I thought it was ok”
“but”
“he told me to lift my shirt from the front”
“but just a little”
“then he told me to lift the [shirt] even higher”
“so he could see my chest”
“but it gets worse”
Christina responds:
“ok I’m leaning to the ima kill your doctor side”
K.C. responds directly to this comment:
“keep listening”
Christina:
“ok”
K.C:
“then he started to touch my u now [sic] what”
“and!”
Christina responds directly to K.C.’s message – “then he started to touch my u now [sic] what”:
“the chest or were [sic] no one should be touching” (mad face emoji)
K.C:
“he moving my bra and starts touching my u now [sic] what and grabs one to see it”
K.C. responds to Christina’s question – “the chest or were [sic] no one should be touching”:
“the second one”
“I was about to cry”
Christina responds with angry face emojis in response to K.C.’s message – “he moving my bra and starts touching my u now [sic] what and grabs one to see it”
K.C. continues:
“I still want to cry”
“but I don’t want to worry my family”
“I didn’t even get to check if I got my period”
“I was traumatized”
“I need to cry”
Christina responds to K.C.’s comment – “I didn’t even get to check if I got my period”
“ok I’m killing him”
K.C.:
“also”
“he said I need to lose weight” (sad emoji)
Christina:
“when ever [sic] I visit you we will go to his house and be the reason he dies” (three mad face emojis)
K.C. replies to her own message further – “he said I need to lose weight”:
“and get abs”
K.C. replies to Christina’s message – “when ever [sic] I visit you we will go to his house and be the reason he dies” (three mad face emojis)
“he’s creepy”
Christina replies to K.C.’s message – “he said I need to lose weight” (sad emoji):
“ok now we are definitely killing him”
Christina says in response to – “and get abs”:
“why do you need abs for”
Christina responds to – “he’s creepy”:
“ya that is why we are killing him”
K.C. responds to – “why do you need abs for”:
“idk”
K.C. responds to – “ya that is why we are killing him”:
“I wish you lived closer to me” (heart emoji)
33At the roadside rest stop, after texting with Christina, K.C. partially disclosed to her mother what had happened, which led to a series of further questions. K.C. told her mother more about the touching when they got home at around 8:00 p.m. K.C. and R.C. later provided police statements on April 24, 2023.
The Defence Evidence
34The Appellant testified and denied any wrongdoing. He explained that his clinic is run out of his home and has a partitioned area that is partially open to the rest of the house.
35He understood that K.C. was referred for acne and conflict with her parents, referenced as behaviour issues during the cross-examination. The Appellant had clinical notes of his interactions with K.C. that he was permitted to refer to during his evidence. He testified that after their first appointment, the mother, R.C., was concerned about K.C.’s behaviour. R.C. made the request that the Appellant speak with K.C. privately to ascertain her challenges and to discuss things that she might not be comfortable talking about in front of her parents.
36The Appellant testified that he gave K.C.’s parents the option of waiting in the adjoining room or in their car while he spoke privately with K.C. The parents chose to go to their car. The Appellant told the parents that he would text them when he and K.C. were done.
37The Appellant testified that nothing improper happened during their private discussion. K.C. was upset about the restrictions placed on her tablet use and they talked about issues she had with her personal hygiene, including dry hands. They spoke about K.C.’s belief that she might have ADHD or OCD.
38The Appellant said that K.C. did lift her shirt to show him her stomach because she was concerned about her “body flab”, but she did not show him her chest. He believed that she might have body dysmorphia. He weighed her and confirmed she had lost a small amount of weight. He then texted R.C. to advise her that they could return. Upon their return, he gave them a milk-based herbal remedy and scheduled a follow-up appointment for June 24, 2023, six weeks later.
39For the April 22 appointment, the Appellant’s older son, Akash, was home and upstairs in his bedroom. The Appellant and Akash both testified that the Appellant told Akash that when he had patients come into the home, Akash was free to come and go, including to use the downstairs kitchen. Akash testified that he moved freely throughout the home, even when his father had patients. Akash also testified that his father would tell him when he was seeing a patient, and he would try to stay out of the way. However, he would go into the kitchen whenever he wanted to.
40The Defence called a character witness, Falak Shaikh. Ms. Shaikh is also a homeopath. She knew the Appellant for over 15 years, since 2007. Ms. Shaikh and the Appellant belonged to an Indian homeopathic fraternity. They had attended workshops and seminars together. Ms. Shaikh said the homeopath community was small and “tight-knit.” In their professional group, the Appellant was viewed as a respectable doctor. The Appellant was regarded as respectful and honest. He was known to be professional with patients and respectful towards his colleagues. She said that he was respectful towards females. Ms. Shaikh had referred patients to the Appellant, and many of those patients had also sought further treatment from him. She had never heard anything negative about the interactions that these patients had with the Appellant.
THE TRIAL JUDGE’S REASONS
41As an initial general observation, the trial judge’s reasons, delivered orally, are concise and organized, while factoring essential legal principles.
42In the analysis section below, I will further address the relevant parts of the trial judge’s reasons under the applicable issues.
43In this part, I will review parts of the reasons that deal with the timing and content of the text messages between K.C. and Christina, which are central to the misapprehension of evidence ground of appeal and how it correlates to the trial judge’s assessment of the motive to fabricate.
44The reasons provide a “brief summary of the evidence”, stating at point 9, that “[t]he first person she (K.C.) told was her friend Christina via text message. Christina got mad about what happened and mad she did not do anything about it.”
45Subsequently, in the analysis section of the oral reasons for judgment, the trial judge stated: “K.C. was also cross-examined extensively on her relationship with her best friend Christina, the person K.C. first disclosed the touching to via text messages while she was still at her appointment with Mr. Anand” (emphasis added).
46The next time the text messages were discussed, the trial judge reasoned as follows:
I also reject that K.C. told Christina in text messages that Mr. Anand touched her vagina. The messages K.C. sent to Christina while still at the appointment read:
He told me to lift my shirt from the back so he could check my heartbeat from the back. I thought it was okay But he told me to lift my shirt from the front but just a little. Then he told me to lift the (sp) even higher so he could see my chest, but it gets worse.
Christina then responds:
Okay. I'm leaning to the ima kill your doctor side
She then continues:
Keep listening. Then he started to touch my you know what. And
Christina texts:
The chest or where no one should be touching?
K.C. continues:
He moving my bra and starts touching my you know what and grabs one to see it.
[Emphasis added].
47Building on these prior findings, the trial judge proceeded to address the Defence position about the motive to fabricate and rejected it based in part on the related findings about K.C.’s texts to Christina regarding the improper touching:
Regarding the alleged motive to fabricate, while the defence does not have to prove any motive to fabricate and I accept that the absence of a motive to fabricate does not mean there was no such motive, as does the absence of a motive to fabricate not establish that the witness is telling the truth, see R. v. Blackman 2008 SCC 37 at paras 39 to 42, here the defence suggestion that K.C. made up the allegations so that she would no longer have to return to see Mr. Anand, who she was upset with over comments about her weight and issues with her tablet, is not supported by the totality of the evidence.
While there is no doubt K.C. and Mr. Anand spoke about difficult subjects and she did not like that he suggested she needed to lose weight, the fact is that K.C. disclosed that something was wrong to her friend Christina while she was still at the appointment with Mr. Anand. This is prior to K.C. understanding that her parents would book a further appointment and prior to her even having a chance to tell her mother she did not want to return to see him. I find it unlikely that K.C., at 12 years old, would have formulated a plan to falsely allege Mr. Anand sexually assaulted her, while she was still sitting in the appointment with Mr. Anand, and then disclose that touching to a 12 year old girl, who had no say on whether she returned to meet with Mr. Anand to get out of a further meeting with him.
For greater certainty, I am not using the text message exchange with Christina as a prior consistent statement, rather the timing of the initial messages with Christina I find rebuts the defence allegation of motive to fabricate and nothing more.
48The trial judge’s reasons go on to find consistency about the evidence of K.C.’s demeanour as described by her mother. In particular, that K.C. was exhibiting changes in her physical and mental state due to the shock of not knowing what to do when her parents returned to the appointment, and as her mother asked her what was wrong on the way home and into the house.
ANALYSIS
49I will review each of the grounds argued. In each section, I will explain the applicable legal principles, followed by the parties’ positions and then my analysis.
50I start with the fundamental proposition that trial judges’ reasons must be read generously, as a whole, and with the presumption that the judge knows the law: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 2; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69, 74.
51The trial judge’s findings of fact are owed deference on the highly deferential standard of demonstration of a palpable and overriding error. An error of law is reviewed on a correctness standard of review. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 5-10; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; R. v. Kruk, 2024 SCC 7 at para. 97.
GROUNDS OF APPEAL
1. Did the trial judge fail to address a material inconsistency advanced by the Defence?
Law
52A trial judge giving reasons for judgment is neither under the obligation to review and resolve every frailty in the evidence, inconsistency in a witness's evidence, respond to every argument advanced by counsel, or allude to every principle of law: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 32, 56, 64. However, a trial judge should address and explain how they have resolved material inconsistencies in the evidence of witnesses: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31. The failure of a trial judge to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 11, 12 and 15; Dinardo, at para. 26; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23. Deficiencies in the trial judge’s credibility analysis in the reasons for judgment will rarely merit intervention on appeal. Nevertheless, a failure to sufficiently explain how valid credibility concerns were resolved may constitute reversible error.
53An accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21. Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record”: Dinardo, at para. 27; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55.
Positions
54The Appellant submits that he raised a serious concern with the complainant’s credibility based on the timing of the allegations. The Defence made the point that, in her s. 715.1 statement, the complainant told the police that the touching began almost immediately (“very quickly”) after her parents left the room, and that there were only a couple of questions exchanged between the complainant and the Appellant prior to the touching.
55The Respondent Crown submits that the trial judge dealt with the inconsistencies that were advanced. In particular, the trial judge dealt with:
The Defence suggestion that the complainant was not being truthful with police because “she neglected to relay word for word what occurred during her appointment”.
The claim that the complainant was misleading police when she told them that the Appellant was her acne doctor.
The submission that the complainant was dishonest regarding the extent to which her father was aware of her friendship with Christina.
The assertion that the complainant told Christina that the Appellant touched her vagina, while telling police and testifying that he touched her breasts.
The Defence submission that the complainant’s differing accounts of the duration of the sexual assault detract from her credibility and reliability.
Findings
56On this ground, I agree with the Crown. The reasons for judgment show that the trial judge was alive to the need to address the alleged inconsistencies. The reasons did so in detail, including addressing in a contextually appropriate manner how a young teenager testifying about earlier events may recount the duration of events.
57The trial judge did not fail to consider the inconsistencies, including those pressed by the Defence, in assessing whether the complainant's credibility on any of these issues raised a reasonable doubt. In this section of the Appellant’s factum, the Appellant revisited trial counsel’s efforts to persuade the judge that K.C. had material inconsistencies between her statement to the police and her evidence at trial.
58The trial judge addressed those concerns, finding that K.C. was responsive to the questions asked by the police that were specific to the touching. When K.C. was confronted in cross-examination with the Appellant’s clinical notes, she acknowledged that they discussed other topics. The trial judge was entitled to make these credibility findings, amongst others, in her reasons.
59The trial judge’s assessment of the complainant’s evidence is reasonably thorough, attentive to the complainant’s inconsistencies in her descriptions of the duration of time and is entitled to deference. See R. v. T.M., 2024 ONCA 496, at para. 15.
2. Did the trial judge fail to consider the impact of the Appellant’s son’s corroborative evidence and the good character evidence, as it related to the second branch of the W.(D.) analysis?
Law
60The W.(D.) analysis must consider all of the evidence that may be favourable to the Defence, regardless of where it arises. This includes other evidence adduced as part of the Defence case and conflicting evidence favourable to the Defence, emerging in the case for the Crown: R. v. Dayes, 2013 ONCA 614, 301 C.C.C. (3d) 337, at para. 52, quoting R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.
61It is not restricted to the impact of the evidence of the accused; instead, it must embrace all of the evidence, including evidence tendered by the Crown, even when that evidence may contradict the Appellant’s own narrative: R. v. Kirlew, 2017 ONCA 171, at paras. 17–19; R. v. Smith, 2020 ONCA 782, 69 C.R. (7th) 126, at paras. 12, 26; R. v. S.R., 2022 ONCA 192, 79 C.R. (7th) 162, at para. 28.
62When evaluating circumstantial evidence, the trial judge should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt, based on logic and experience applied to the evidence or the absence of evidence, not on speculation. R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 at para. 37.
Positions
63The Appellant’s position is that the trial judge improperly limited the W.(D.) analysis to only the Appellant’s evidence and failed to account for other evidence that plausibly supported the Defence position. The Appellant submits that the trial judge failed to consider the evidence of the Appellant’s son, who supported him on the issue of his liberal access to the residence. The trial judge also failed to consider the impact of the good character evidence that supported the Appellant’s credibility generally. The Appellant submits that the trial judge only referred to Akash and Ms. Shaikh’s evidence in a single paragraph.
64The Crown responds that the trial judge considered both the plausibility of Akash’s evidence and whether his evidence could raise a reasonable doubt if it was accepted. The trial judge considered the evidence of Akash and Ms. Shaikh in proportion to the materiality of their evidence.
Findings
65The trial judge did not fail to explain why she rejected evidence favourable to the Defence position as identified by the Appellant and why it did not leave her with a reasonable doubt. Nor did the trial judge fail to address the features of the evidence that supported the Appellant's position.
66While the trial judge recited the W.(D.) framework with reference to the accused’s evidence only, the total analysis considered the other evidence that was arguably favourable to the Defence.
67The trial judge did not, in substance, restrict the reasonable doubt analysis to the Appellant’s evidence. The trial judge specifically addressed the Appellant’s son’s evidence and the evidence of the character witness.
68The trial judge determined that the son’s “liberal access to the residence”, if true, did little to undermine the complainant’s account because of the concealable nature of the sexual touching in question.
69The judge also rejected the Appellant’s evidence on this point, considering it to be illogical, because the examination with K.C. was intended to be private.
70The trial judge’s reasons, at the outset, factored the Appellant’s son’s evidence in the reasonable doubt analysis:
I have concerns about the self-serving nature of Mr. Anand's evidence. First, it does not make sense that Mr. Anand would tell his son that he can move about the house freely when he is with his patients. I found this evidence to be self-serving as it suggests that there was a risk that Akash could have come and walk through the home at any given time without notice, therefore making it less likely that Mr. Anand would or could assault K.C.
Further, given the nature of his practice, including the sensitive subjects discussed with K.C., it would be unprofessional, if not awkward, for his son to walk through the area of the house where he is meeting his clients, and particularly in this case, a 12 year old girl. While I appreciate there might have been some allowances for certain situations, the idea that he reminds his son, who on his evidence no longer resides in the home, that he can freely come through the house when Mr. Anand is working does not make sense.
I find that it is more logical that Mr. Anand was telling the truth when he spoke to police on April 25th, 2023, and told them that his son was home and he explained to him that he had clients coming to which his son responded, "no problem, I'll just try to stay upstairs," without a reminder or an invitation to come done [sic] if he needs anything.
71The trial judge considered how plausible it was that the Appellant’s son was free to roam the house while the Appellant was conducting a private discussion or examination with K.C. The trial judge held that it was implausible that Akash actually was free to move about the house while the Appellant was with his patients. These findings are reasonable and entitled to deference.
3. Did the trial judge fail to deal with the good character evidence provided by Ms. Shaikh, both in failing to apply the test for good character evidence and/or in providing insufficient reasons in this regard?
Law
72In cases of sexual abuse against children in private settings, especially where the child is in the care of the trusted accused, the trial judge is entitled to follow the principle that the propensity value of character evidence as to morality is diminished. See R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, affirming the dissenting reason of Griffiths J.A. in (1992), 1992 CanLII 7513 (ON CA), 11 O.R. (3d) 98 (C.A.).
Positions
73The Appellant submits that character evidence is generally admissible for two purposes: (1) in support of the accused’s credibility generally (“the credibility purpose”); and (2) as the basis to infer that an accused is unlikely to have committed the crime (“the propensity purpose”).
74The Appellant contends that, in this case, the good character evidence had value as it related to the Appellant’s credibility generally, given the close professional connection of Ms. Shaikh to the Appellant, and her direct knowledge of his integrity in dealing with patients in the small and close Indian homeopathic community.
75The Appellant acknowledges that the propensity purpose is subject to diminished weight on the facts of this case. However, the Appellant maintains that the trial judge failed to address Ms. Shaikh’s evidence in any meaningful way.
76The Crown submits that the sexual assault alleged here occurred in private, where the Appellant and complainant were alone and out of eyesight. In cases of sexual abuse against children in private, especially where the child is in the care of a trusted accused person, the trial judge should follow the Profit principle. The assessment may be distinct from when the allegations are in public or visible to others, requiring the court to engage in a contextually appropriate evaluation of the character evidence in relation to the improbability that the accused committed the alleged incident or supporting the accused’s credibility. R. v. Strong, [2001] O.J. No. 1362 (CA) at para. 10; and R. v. Khan, 2017 ONSC 7109 at paras. 78-80; R. v. Farmer, 2021 NSCA 7 at para. 80.
Findings
77I am not persuaded by the Appellant’s argument on this ground. First, the trial judge acknowledged the character witness evidence. While it was brief, the judge’s reasons demonstrate consideration of this evidence and the Defence position.
78Second, the evidence is that the sexual assault occurred in relative privacy, where the Appellant and complainant were alone. The judge is entitled to find, as she did here, that the character evidence, while helpful to the accused as a person of otherwise good repute, is of limited weight on the issue of credibility and propensity in these particular circumstances. The judge was permitted to find that this evidence does not alter the view that the accused’s evidence was self-serving and not credible.
79Persons of otherwise good repute and morality may commit serious offences, especially in private. The positive professional reputation in the community of a Defendant for honesty, integrity, and good morality is deserving of consideration but may be of limited weight regarding propensity value or improbability when there is evidence of a sexual assault in a private setting by a trusted adult of a child in their care. R. v. C.R., 2022 ONSC 241 at para. 51.
80The trial judge, considering the total record, is entitled to find that the propensity value of good character evidence is diminished in such cases. After factoring that evidence, the core focus is whether the alleged conduct in private circumstances is proven beyond a reasonable doubt.
81The “credibility purpose” of good character evidence was considered by the trial judge to be of low weight because it could not compensate for the Appellant’s larger credibility problems. In particular, and specific to the alleged touching, the trial judge found the Appellant’s testimony to not be credible. The trial judge was concerned that the Appellant was willing to change his version of events. The judge found it significant that the Appellant did not note down any details about the complainant’s abdominal “flab” because there was nothing unusual about it. This contradicted his examination-in-chief evidence that the complainant’s “lifting of her shirt was an area of concern”, causing the Appellant to consider possible diagnoses of ADHD, OCD, and body dysmorphia.
4. Did the trial judge misapprehend the evidence of when the complainant texted her friend, Christina, and disclosed the sexual touching allegations?
Law
82A trial judge’s misapprehension of the evidence will only rise to the level of a reversible error when it “play[s] an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1, 2 and 6.
83In R. v. Janeiro, 2022 ONCA 118, 501 C.R.R. (2d) 142, the Court of Appeal further explained the law and “stringent standard” concerning the misapprehension of the evidence ground of appeal:
76A trial judge may misapprehend evidence by a failure to consider evidence relevant to a material issue in the case, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey, (1995) 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A.), at p. 538. If such errors do not constitute errors of law, which they generally do not, a misapprehension of evidence will not alone ground a successful appeal unless “those errors play an essential part in the reasoning process resulting in a conviction”: Morrissey at p. 541 quoted in R. v. Lohrer, 2004 SCC 80, 2004 SCC 90, [2004] 3 S.C.R. 732 at paras. 1, 2. If misapprehensions of evidence were essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred: Morrissey, at p. 541. This is a stringent standard that does not apply to peripheral reasoning, but to material errors that go beyond the narrative of the judgment: Lohrer, at para. 4.
See also R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.
84As the Supreme Court explained in Lohrer, at para. 2, the misapprehension of the evidence must go to the substance of the analysis rather than to the detail. It must be material to the reasoning of the trial judge’s decision. A misapprehension about a minor matter will not suffice. There is the further requirement that the error(s) identified must play an essential part, not just in the narrative of the judgment, but “in the reasoning process resulting in a conviction.”
Positions
85The Appellant submits that the trial judge, at various points in the reasons, found that the text messages between K.C. and Christina about the improper touching were exchanged while K.C. was still at the appointment. This error became important because it undermined the Defence position that K.C. was motivated to lie about what happened with the Appellant in order to avoid having to continue treatment with him. The Appellant contends that by incorrectly making findings in the reasons that K.C. told Christina about the touching while at the appointment, the trial judge then unfairly assessed the position that the motive to fabricate the sexual touching accusation occurred after K.C. left his home, (the next appointment was likely made), and importantly before K.C. resumed the text discussions with Christina while driving home, some 20 minutes later.
86The Crown submits that, from the testimony and total text messages, the trial judge was entitled to find that the complainant began to disclose the touching to Christina while still at the appointment, even if she did not state that she was touched at that time.
Findings
87On this ground of appeal, the Appellant’s is successful. I find that there was a misapprehension of the evidence central to the reasoning process resulting in a conviction.
88The trial judge’s reasons contain the following findings, which I have numbered below to assist with the analysis. I am mindful that they should not be read in isolation or individually but rather as part of the total reasons:
K.C. was also cross-examined extensively on her relationship with her best friend Christina, the person K.C. first disclosed the touching to via text messages while she was still at her appointment with Mr. Anand.
I also reject that K.C. told Christina in text messages that Mr. Anand touched her vagina. The messages K.C. sent to Christina while still at the appointment read:
He told me to lift my shirt from the back so he could check my heartbeat from the back. I thought it was okay But he told me to lift my shirt from the front but just a little. Then he told me to lift the even higher so he could see my chest, but it gets worse.
Christina then responds:
Okay. I'm leaning to the ima kill your doctor side
She then continues:
Keep listening. Then he started to touch my you know what. And
Christina texts:
The chest or where no one should be touching?
K.C. continues:
He moving my bra and starts touching my you know what and grabs one to see it.
- While there is no doubt K.C. and Mr. Anand spoke about difficult subjects and she did not like that he suggested she needed to lose weight, the fact is that K.C. disclosed that something was wrong to her friend Christina while she was still at the appointment with Mr. Anand. This is prior to K.C. understanding that her parents would book a further appointment and prior to her even having a chance to tell her mother she did not want to return to see him. I find it unlikely that K.C., at 12 years old, would have formulated a plan to falsely allege Mr. Anand sexually assaulted her, while she was still sitting in the appointment with Mr. Anand, and then disclose that touching to a 12 year old girl, who had no say on whether she returned to meet with Mr. Anand to get out of a further meeting with him.
[Emphasis added].
89The Respondent Crown acknowledges that the text messages between K.C. and Christina should be read as two exchanges. There is a first exchange on April 22 at 5:41 p.m., where K.C. texts Christina while at the appointment, stating: “hey I’m back”, “I’m about to cry”, and “my doctor just did something”. Christina replies, but before K.C. explains what happened, she texts Christina that, “I’ll tell you in 20 min”, “I’m still here”, and “got to go”. This part is while she is at the appointment at the Appellant’s home.
90The second set of text discussions, timestamped as starting on “April 22, 6:00 p.m.”, occurs when K.C. texts Christina to resume the conversation. In direct response to K.C. stating, “he told my parents to leave so he could talk to me by himself”, Christina responds with, “do I need to kill him.”
91As the discussion continues, K.C. mentions that the doctor told her to lift her shirt, and Christina responds by saying, “ok I’m leaning to the ima kill your doctor side”.
92I find that the first set of text messages between K.C. and Christina establish that while at the appointment, K.C. disclosed to Christina that her doctor did “something.” However, contrary to the trial judge’s reasons, K.C. did not disclose that there was sexual touching until after she left the appointment and was driving home with her parents. To be clear, I do not accept the Crown argument that in this passage of the reasons, the trial judge meant when K.C. “began” to disclose the touching. That is not the language used by the trial judge.
93K.C. did not explain the meaning of “did something” to Christina until some 20 minutes later, during their back and forth where Christina prodded for particulars as K.C. was in her parents’ vehicle. The specific accusation was conveyed to Christina after K.C. had driven away with her family and there was sufficient passage of time.
94In the first two passages of the trial judge’s analysis discussed above, the reasons stated twice that K.C disclosed the touching via text messages while she was still at her appointment with the Appellant. Notably, in the second passage in the reasons, the trial judge quotes specific text messages about touching, based on the finding that they were exchanged while K.C. was still at the appointment.
95Respectfully, this is an overriding and palpable error.
96I recognize that there may be occasions where a misapprehension is subsequently and clearly corrected, particularly in oral reasons. However, the trial judge’s misapprehension of this material fact happened explicitly twice. I am not satisfied that the trial judge’s third review of this area is sufficiently clear to disentangle or remedy the prior misapprehensions on this important point.
97I acknowledge the Crown position that it is possible that the trial judge’s third mention of this area might indicate that it was understood that K.C.’s initial message was “something” occurred while at the appointment, and then goes on to find it unlikely that K.C. concocted the allegation of touching before or when texting Christina again 20 minutes later.
98However, the preponderance of the trial judge’s reasons and analysis establishes a misapprehension that K.C. disclosed sexual touching to Christina while still at the appointment. The reasons also establish that the trial judge then used that erroneous finding to reject the Defence’s argument that K.C. had a motive to lie because she did not want to see the Appellant again as she was upset with him for his comments and instruction, and not for sexual touching.
99The first passage of the reasons identified above in this section shows a clear misapprehension as the trial judge found:
K.C. first disclosed the touching via text messages while she was still at her appointment with Mr. Anand. [Emphasis added.]
100The second passage identified above (where the judge rejected the Defence position that Christina influenced K.C.’s complaint by suggesting she was touched on the vagina) quotes the series of text messages that the judge found were sent while K.C. was at the appointment. This is clearly not accurate. In this part, the trial judge says specifically: “The messages K.C. sent to Christina while still at the appointment read: He told me to lift my shirt from the back so he could check my heartbeat from the back….” (emphasis added).
101The Respondent Crown acknowledged in their oral argument that these text messages, which explain the touching, actually were sent later, in the second sequence on the ride home after 6:00 p.m. This is after K.C. left the appointment. She resumed the texts with Christina in her parents’ car.
102The centrality of the trial judge’s misapprehension to the reasoning becomes clear from this second passage, where the text messages quoted are specifically found to have been communicated “while still at the appointment.” This finding of the trial judge is part of the basis to reject the plausible motive of the complainant to fabricate to avoid having to attend another appointment with the Appellant. K.C. then told her mother that she did not want to go to another appointment and raised the touching. This is in contrast to R.C.’s evidence that when she asked K.C. at the appointment what happened, K.C. said nothing happened.
103It is only in the third passage that the trial judge states that K.C. disclosed that something was wrong to Christina while she was still at the appointment with Mr. Anand. However, this third passage does not remove the fog of the adverse impact of the earlier misapprehensions that K.C. disclosed the improper touching to Christina “while still at the appointment,” and that it is “unlikely” that she would fabricate the complaint to Christina.
104The trial judge’s third discussion about the timing of the messages is not explained as a correction or amendment of the earlier findings. The language in this third passage of the analysis rejects that K.C. would fabricate the complaint while still at the appointment. The concern remains that the trial judge misunderstood that K.C. had not specifically disclosed touching to Christina while still at the appointment.
105With an accurate appreciation of the facts, the evidence supports that K.C.’s motive to fabricate the sexual touching could have manifested during the 20 minutes d before K.C. resumed the text discussion with Christina, or it could have developed during their discussion. In that part of this later discussion, there is some prompting from Christina, which I will address further below.
106On this point, the trial judge concluded, at pp. 24-25:
I find it unlikely that K.C., at 12 years old, would have formulated a plan to falsely allege Mr. Anand sexually assaulted her, while she was still sitting in the appointment with Mr. Anand, and then disclose that touching to a 12 year old girl, who had no say on whether she returned to meet with Mr. Anand to get out of a further meeting with him.
107I recognize that the trial judge is entitled to ultimately reject the Defence position based on the total circumstances for similar reasons. However, the analysis of this important argument and reasoning must be free from this significant factual error. I am persuaded that the misapprehension of the evidence contributed to the conviction. It is probable that this misapprehension was essential to the reasoning process.
108Stated another way, when the misapprehension is excised, it is quite unclear if this finding of the rejection of the motive to lie is sustainable in the way that it is explained. The trial judge’s reasons establish that the erroneous findings contaminated the analysis on this important part of the Defence position.
109The third passage highlighted above is not sufficiently clear to serve as corrective of the two prior misapprehensions. This is not case where there was a simple mistake that had no impact on the analysis. See Sinclair, at para. 53.
110In Batte, Justice Doherty explained the significance of evidence of a motive to fabricate to the credibility assessment: “It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness' credibility than the existence of a motive to fabricate evidence.” R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 120. An ulterior motive, or a motive to fabricate, may provide a compelling alternative to the truth of the allegations. See R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 21.
111On the other hand, when the accused argues that the complainant has a motive to lie, the Crown may be able to prove, on the evidence, that the complainant does not. Again, this determination must be made without the error identified. This is because from a prosecutor’s point of view, a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth: Bartholomew, at para. 21; see also Batte, at para. 120; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at para. 23, leave to appeal refused, 2021 CanLII 58907 (S.C.C.); R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 28-33 relying on Ontario Court of Appeal decisions in R. v. Dindyal, 2021 ONCA 234;R. v. Ignacio, 2021 ONCA 69, leave to appeal to SCC requested; R. v. MacKenzie, 2020 ONCA 646; R. v. J.H., 2020 ONCA 165; R. v. M.S., 2019 ONCA 869; R. v. Mirzadegan, 2019 ONCA 864; R. v. Bartholomew, 2019 ONCA 377; R. v. W.R., 2020 ONCA 813; R. v. Sanchez, 2017 ONCA 994; R. v. John, 2017 ONCA 622; R. v. O.M., 2014 ONCA 503;R. v. M.B., 2011 ONCA 76; R. v. L.L., 2009 ONCA 413; R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.); R. v. Jackson, 1995 CanLII 3506 (Ont. C.A.); R. v. Stewart, [1994] O.J. No. 811, 1994 CanLII 7208 (C.A.).
112Absence of evidence of a motive to lie, or the existence of evidence disproving a particular motive to lie, is a factor that suggests a witness may be more truthful because they do not have a reason to lie when it is asserted that they do. However, as part of the larger legal discourse, trial judges must be alive to certain risks in this category of reasoning.
113First, the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist). The latter requires evidence and is therefore a stronger indication of credibility. Neither is conclusive in a credibility analysis.
114Second, the trial judge must not consider that an absence of evidence of motive to fabricate, or even a proven absence of motive (evidence that establishes that no motive existed) which is more compelling, conclusively establishes that the complainant is telling the truth. Swain, at para. 32.
115Third, the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations. Swain, at paras. 31‑33.
116In this case, the accused raised a motive to fabricate supported by some evidence. The trial judge determined it to be “unlikely” based in part on factual findings that were erroneous.
117The analysis about this central part of the defence must be based on an accurate understanding of the facts that ground the position.
118The trial judge must determine whether there is evidence of a motive to lie and if so, whether it detracts from the credibility of the complainant in a manner that is capable of resulting in a reasonable doubt. Swain, at para. 28.
119While the misapprehension of the evidence was central to the reasoning and resulted in the conviction, there are further aspects about the messages and the motive issue that may need to be evaluated at a new trial.
120Christina’s text messages to K.C. were suggestive to K.C. before K.C. explains the actual sexual touching. In particular, Christina states: “do I need to kill him”, and “ok I’m leaning to the ima kill your doctor side.” Christina made both of suggestive comments as the discussion unfolds and before K.C. explains she was sexually touched. In response to Christina’s evocative comments, K.C. tells Christina to wait, because “it gets worse.” Whether Christina’s messages had any influence (even by implication of wrongdoing) on K.C.’s allegation of the accused’s sexual touching may be deserving of consideration on the motive to lie issue. Influence can be raising, suggesting, proposing, or planting an idea, even inadvertently, that affects how the person responds.
121Christina’s influence, suggestion, or inadvertent tainting was not assessed in the trial judge’s reasons. Where there is evidence of a motive to lie with a time sensitive suggestion to a young complainant, a careful examination of the total circumstances is required to determine what impact that may have had on their version. See R. v. C.G., 2021 ONCA 809, 407 C.C.C. (3d) 552. That omission by the trial judge may be correlated to the misapprehension that K.C.’s disclosure of the touching had occurred while still at the appointment before there was time for K.C. to fabricate her version.
122On a related point, the trial judge’s reliance on K.C.’s demeanour evidence observed by R.C. when the parents returned to the Appellant’s home may have been connected to the improper finding of K.C. having disclosed to Christina the touching while still at the appointment. In that context, the other relevant evidence of R.C. is that while at the appointment, she asked K.C. what happened and K.C. said that nothing happened.
123I recognize that there may be a reasonable explanation for K.C. not reporting the improper touching to her mother at that time, even when specifically asked if anything happened, informed by a contextual assessment of a child’s experience, reasons for delayed reporting, and total evidence. Children will often delay disclosure of abuse, for a variety of reasonable reasons, particularly when it is sexual and involves offenders in a position of trust. See R. v. P.S., 2019 ONCA 637. On the other hand, where the evidence grounds that a child may have a motive to be dishonest, and there are alternative explanations for their demeanour, the child’s demeanour must be evaluated within the context of accurate factual findings. In this regard, I am concerned that the misapprehension impacted the assessment of all of the applicable evidence.
124Finally, while the evidence about when exactly the follow-up appointment with the Appellant was made was different amongst the witnesses, the total circumstances support that it was likely set before K.C. disclosed the allegations to her friend and then her mother. It does not make sense that the next appointment was set after K.C. told her mother about the touching, later the same day. K.C.’s evidence indicated that she did not want to attend another appointment. The accused’s evidence was that the next appointment was set for June 24 before they left his home. This point has to be assessed as part of the total evidence relevant to the motive to lie with a proper understanding of the sequence and circumstances of the text messages to Christina. This is because if the next appointment with the Appellant was set with K.C.’s knowledge, and then later K.C. told her friend and mother she was sexually touched, those circumstances are relevant to assess whether K.C. had an incentive to wrongly accuse the Appellant.
CONCLUSION
125When the trial judge’s reasons are read in their entirety, the misapprehension of the evidence is central to the reasoning process for rejecting the Appellant’s position about the credibility of K.C.
126The guilty verdict is not free from an important error, and therefore I conclude that the verdict is not safe.
127I grant the appeal, set aside Mr. Anand’s convictions, and order a new trial.
Mirza, J.
Released: June 11, 2026
CITATION: R. v. Anand, 2026 ONSC 3436
COURT FILE NO.: CR-25-191-00AP
DATE: 2026-06-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
B. Jackson, for the Crown
– and –
SUNIL ANAND
M. Halfyard, for the Defence
SUMMARY CONVICTION APPEAL RULING
[On Appeal from the Judgment of Justice L. Daviau, dated December 10, 2024]
Mirza, J.
Released: June 11, 2026