



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dindyal, 2021 ONCA 234

DATE:20210414

DOCKET: C67760

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anand
    Dindyal

Appellant

Sweta Tejpal and Hans John Kalina, for the
    appellant

Eric W. Taylor, for the respondent

Heard: March 23, 2021 by videoconference

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

Nordheimer J.A.:

[1]

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

A.

Background

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

Count 1

[7]

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

[8]

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

Count 3

[9]

The complainant had come home from work that day
    and had a few drinks. The appellant was also drinking, and they started to argue.
    The complainant said she had a massive headache. The complainant went to take
    several Tylenol, maybe as many as four to five, which she intended to wash down
    with alcohol. As she was washing them down, she suddenly felt one of the
    appellants fingers in her mouth. As she didnt want his finger in her mouth,
    she bit down on it probably significantly hard. Almost immediately, the
    appellant elbowed her in the left side of her face with his right elbow. In the
    days that followed, the complainant found out that she had suffered a fractured
    orbital bone which required emergency reconstructive surgery.

[10]

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

Count 6

[11]

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

[12]

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

Count 9

[13]

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

[14]

The appellant said that they went to the
    barbeque where the complainant got drunk and passed out. After they left,
    he had to hold her up to get her to the car. He tried to put her in the
    passenger seat, but she fell into the seat because she was still drunk. He
    buckled her in but didnt notice that one of her legs was still outside the car.
    He accidentally closed the car door on it, once. The appellant got in and
    started to drive but the complainant started freaking out and tried to get
    out of the car. As he was concerned for her safety, he reached out and tried to
    hold her, accidentally causing injuries on her face.

Count 10

[15]

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

[16]

The appellant agreed that the complainants son
    didnt like to get his hair cut and would fuss so that they had decided to cut
    his hair at home. That day, the son kept moving as the appellant started
    cutting his hair. The appellant told the son that if he kept moving, the
    appellant would end up cutting all his hair. The appellant suggested to the
    complainant that they should just shave off all his hair, so he didnt have to
    get his hair cut as often. The appellant said that as he started shaving the
    sons head, the complainant was freaking out but, by that point, it was too
    late to avoid completing the shaving of the sons hair.

B.

The trial judges decision

[17]

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

[18]

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

[19]

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

[20]

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

C.

Analysis

[21]

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

[22]

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

(2000),
    49 O.R. (3d) 321 (C.A.), at para. 121:

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

[23]

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

[24]

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

[25]

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

[26]

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

[27]

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

[28]

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

[29]

The proviso is
    properly utilized to remedy errors made at a trial when those errors are of the
    type set out in
R. v. Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, where
    Moldaver J. said, at para. 53:

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

[30]

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

[31]

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

[32]

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

[33]

I mention these issues to demonstrate that the
    evidence on these three counts was not overwhelming. The proviso cannot be
    relied upon to correct the trial judges errors.

[34]

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

[35]

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

D.

Conclusion

[36]

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

Released: April 14, 2021 DW

I.V.B. Nordheimer J.A.

I agree. David Watt J.A.

I agree. Alexandra Hoy J.A.





[1]

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


