



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of
the
Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read from time to time before the day on which this subparagraph
    comes into force, if the conduct alleged would be an offence referred to in
    subparagraph (i) if it occurred on or after that day; or

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or
    the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community
.



486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sahdev, 2017 ONCA 900

DATE: 20171123

DOCKET: C62080

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jitender Krishan Sahdev

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Kathleen Farrell, for the respondent

Heard: August 29, 2017

On appeal from the order of Justice Andrew J. Goodman of
    the Superior Court of Justice, dated February 25, 2014, and from the convictions
    entered by Justice A. Duncan Grace of the Superior Court of Justice, sitting
    without a jury, on December 11, 2015.

Trotter J.A.
:

A.

introduction

[1]

Jitender Sahdev, the appellant, was trained as a surgeon in India. Because
    he was not qualified as a doctor in Canada, he opened a massage and yoga studio
    with his wife. He was charged with sexually assaulting two female massage
    clients.

[2]

The Crown wanted the charges tried together. The appellant wanted separate
    trials. Well before his trial date, the appellant applied for severance. The
    application judge, who was then assigned to be the trial judge, dismissed the application.
    He promised to deliver written reasons at a later date, but never did so. As it
    turned out, a different judge conducted the trial. The trial judge found the
    appellant guilty on both counts.

[3]

The appellant challenges his convictions on several grounds. I am not
    persuaded that the trial judge committed any errors. However, in my view, the appeal
    must be allowed and a new trial ordered because the application judges failure
    to provide reasons for refusing severance frustrates meaningful appellate
    review.

B.

the severance application

[4]

The offences for which the appellant was convicted occurred on June 11
    and 12, 2012. The appellant was originally charged in separate Informations. An
    Information containing both counts was subsequently sworn. Following committal
    to stand trial, an indictment was preferred that contained both counts.

[5]

The appellant originally elected to be tried by judge and jury. On
    February 21, 2014, more than a year and half before trial, he re-elected to be
    tried by a judge sitting alone. On the same day, he applied for severance.

[6]

In materials filed before the application judge, defence counsel (not
    Mr. Halfyard or Ms. Vandebeek) contended that there was a likelihood that the
    appellant would testify in relation to one of the complainants (N.P.), but a
    substantially lesser likelihood that he would testify in relation to the
    other (A.W.). The trial Crown (not Ms. Farrell) argued that the appellants
    proposal to testify in relation to just one count was not realistic.

[7]

Until this point in the proceedings, the Crown had considered bringing a
    cross-count, similar fact evidence application. During the severance
    application, the Crown advised that it might also call three other women as
    similar fact witnesses. Overall, the Crown was non-committal on the similar
    fact issue, and said it would make a firm decision at trial. Defence counsel
    conceded that, if the application judge determined that it was likely that the similar
    fact application should succeed, then the application for severance would
    fall.

[8]

The application judge adjourned the case to February 25, 2014, for my
    oral decision on the severance application. On that date, he said:

As I mentioned, written reasons to follow during the course of
    the judgment in this case. Having reviewed the material, the submissions of
    counsel, and for written reasons to follow, the application for severance is
    dismissed.

As previously noted, the application judge did not
    conduct the trial, nor did he release reasons on the severance application.

C.

the proceedings at trial

(1)

Introduction

[9]

The trial commenced 20 months later before a different judge. Although
    reasons for refusing the severance application were still outstanding, defence
    counsel did not renew the application before the trial judge.

[10]

Both
    complainants testified, as did the appellant and his wife, along with a couple
    of other massage and yoga clients. The three additional similar fact witnesses
    mentioned by the Crown on the severance application did not testify.

[11]

The
    events took place at the premises of Savy International (Savy), the massage
    and yoga studio operated by the appellant and his wife in London, Ontario. The
    two complainants, A.W. and N.P., came to the studio in similar circumstances  both
    purchased discounted massage coupons on a website called Dealfind. A.W.
    received her massage on June 11, 2012; N.P. had hers on June 12, 2012.

(2)

The Evidence Concerning N.P.

[12]

N.P.
    was 25 years old at the time. During her massage, N.P. was naked, but under a
    draping sheet. She testified that, as the appellant massaged her thighs, his
    fingers lightly grazed her vagina. He also massaged her breasts and briefly put
    his thumbs on her nipples. The appellant then massaged her outer labia with
    both hands. N.P. complained that she was in pain because she had a clitoral
    abscess. The appellant told her she did not. He massaged her clitoris. N.P.
    verbalized her discomfort, but he applied pressure in the area for five to six
    minutes. He stopped because she continued to complain of pain. The appellant
    then kissed N.P. on the mouth three times until she turned her head away.

[13]

N.P.
    testified that, after the massage was finished, she calmed herself and quickly
    left the premises. She got into her car, screamed loudly, and then called her
    boyfriend. Her boyfriend called the police, and N.P. spoke to them that same
    night.

[14]

The
    appellant testified and denied touching N.P.s breasts or vagina. As the
    massage progressed, N.P. told him that she experienced pain in her breast and
    from a clitoral abscess. The appellant said he was offended because N.P. had
    failed to note these issues on the intake form she completed upon her arrival
    at Savy. According to the appellant, having learned of his medical training
    from his website, N.P. asked him to examine her breast. The appellant declined
    and told her to consult a doctor. Later in the massage, and again because of
    the appellants training as a surgeon, N.P. asked him to examine the abscess on
    her clitoris. He refused, advising her that he did not have the necessary tools
    and was not qualified in Canada. The appellant encouraged N.P. to sign up for a
    trip that he was organizing to a yoga retreat in India. If she came along, the
    appellant said he would introduce her to doctors who could examine her clitoral
    abscess. N.P. denied asking the appellant to examine her breast or her
    clitoris. She said there was no discussion of yoga or treatment in India.

[15]

The
    defence called the appellants wife and another Savy client to suggest that
    nothing untoward happened during N.P.s massage. Both witnesses saw N.P. leave
    the premises after the massage. She appeared to be fine. Ms. Sahdev said that N.P.
    smiled and said the massage was lovely. The client said that N.P. looked like
    a normal person and did not look angry or upset. The client did not hear any
    unusual sounds (i.e., screaming) coming from the parking lot.

[16]

The
    trial judge accepted most of N.P.s evidence, although he did not accept that
    the appellant massaged her vaginal area for as long as she claimed. The trial
    judge rejected the appellants evidence on this count. He variously described
    it in the following ways: defies belief; makes no sense; not believable;
    nothing short of incredible and wholly unbelievable; unfathomable; and a
    figment of Mr. Sahdevs imagination.

(3)

The Evidence Concerning A.W.

[17]

A.W.,
    who was 27 years old, came to Savy on June 11, 2012. She completed the intake
    form and indicated that she suffered from multiple sclerosis and had tension
    and soreness in her back and neck. She anticipated receiving a relaxing back,
    shoulder, and neck massage.

[18]

A.W.
    went into the massage room and removed her upper clothing and climbed under the
    sheet. When the appellant entered, he noticed that she was wearing pants and
    instructed her to remove them. He left the room while she did so. A.W. thought
    this request was a little strange, but she complied. She consented to a full
    body massage. When the appellant returned, A.W. was covered with a draping
    sheet.

[19]

The
    massage commenced with A.W. on her stomach. The draping sheet either fell or
    was pulled off of her at some point during the session. As the appellant was
    massaging her left side, he massaged A.W.s buttocks for 10 to 15 seconds and
    spread her buttocks apart with his thumbs. A.W. clenched, indicating her discomfort.
    The appellant told her to relax and to let him do his job. While massaging her
    right side, the appellant did not massage her buttocks again. However, his
    fingers ventured into her inner thigh, near her vagina.

[20]

When
    A.W. was on her back, the appellant briefly massaged her breasts, without
    touching her nipples. He then worked his way down her body and applied pressure
    to the top of her pubic area, but did not touch her vagina.

[21]

When
    the massage was over, A.W. dressed and left the premises quickly. She told the
    appellant that she would book her next appointment online. She had no intention
    of doing so. A.W. did not complain for a few days, and only after seeing a
    press release following N.P.s complaint.

[22]

The
    appellant testified that, when A.W. arrived, he told her that he could not
    honour her coupon because it was issued in the name of her boyfriend. She was
    told that she would have to pay for her session but could use the coupon at
    another time. A.W. agreed.

[23]

The
    appellant took A.W. to the massage room and told her she could keep on all of
    her clothing. He said he reminded her of this again. The appellant helped her
    onto the table. He put a draping sheet over her, even though she was fully
    clothed. He said he did this as a matter of courtesy. The appellant testified
    that the massage proceeded normally and that he did not touch her breasts,
    buttocks, or her vaginal area. The appellant testified that A.W. said that the
    massage was the best she had ever received. However, when it was over, she said
    she could not pay at that time and promised to return the next day to pay. She
    never did.

[24]

The
    appellants wife said that, as she was readying the room for A.W.s massage,
    she heard her husband tell A.W. that she could remain fully clothed.

[25]

On
    June 28, 2012, Dealfind advised the appellant that a refund had been
    requested for the voucher presented by A.W. On July 4, 2012, the appellant was
    arrested for sexually assaulting A.W.

[26]

The
    trial judge identified shortcomings in A.W.s evidence that troubled him. He
    attributed them to her failure to review her videotaped police interview.
    Nevertheless, he accepted A.W.s evidence in general.

[27]

The
    trial judge rejected the appellants evidence. He found that the appellants
    seemingly encyclopaedic memory of A.Ws massage session was contrived. He
    rejected Ms. Sahdevs evidence about hearing her husband tell A.W. that she could
    remain fully clothed as particularly improbable. He rejected the appellants
    evidence about draping a fully clothed client as incredible. The trial judge
    said: Bluntly, I do not believe either Mr. or Ms. Sahdev.

(4)

The Similar Fact Application

[28]

At
    the conclusion of the evidence, the Crown applied to have the evidence of each
    complainant used as similar fact evidence in relation to the other. Defence
    counsel resisted the application.

[29]

In
    his reasons for judgment, the trial judge assessed the evidence in relation to
    each charge separately and determined that guilt had been proved beyond a
    reasonable doubt. He concluded his reasons by saying: Because of my
    conclusions, it is unnecessary to rule on the Crowns similar fact
    application.

D.

issues on appeal

[30]

The
    appellant argues that he is entitled to a new trial because the application
    judge failed to provide reasons for refusing severance, thereby frustrating
    meaningful appellate review. He further submits that the trial judge subjected
    his evidence to a higher level of scrutiny than the complainants. Finally, the
    appellant contends that the trial judge erred in the manner that he treated
    N.P.s immediate complaint to the police.

[31]

As
    stated at the outset of these reasons, I would allow the appeal on the
    severance issue. The other grounds have no merit.

E.

analysis

(1)

Severance and the Failure to Give Reasons

[32]

Counsel
    on appeal made inquiries to determine whether the application judge had
    delivered, or would be delivering, reasons. There was no indication that
    reasons were forthcoming. This court made its own inquiries, yielding identical
    results.

[33]

The Crown properly concedes that
the application
    judge erred in law by failing to provide reasons for his decision: see
R.
    v. Sliwka
, 2017 ONCA 426, 38 C.R. (7th) 115, at para. 2; and
R. v.
    Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 25. The application
    judges announcement of his decision to deny severance does not constitute 
reasons that in any way explain that decision or expose it to proper
    appellate review:
Sliwka
, at para. 30. See
    also
R. v. Frost
,
2010
ONCA 494,
    at para. 2.

[34]

A
ppellate courts must look
    beyond the absence of reasons and determine whether the rationale for the
    decision under review may be evinced from the record as a whole: see
Sheppard
, at paras. 25-33, 46; and
Sliwka
, at
    para. 25. It is not apparent from the record why the application judge decided
    the issue in the manner that he did.

[35]

Having conceded the error, the Crown submits
    that the
curative proviso
in s. 686(1)(b)(iii)
    of the
Criminal Code
, R.S.C. 1985, c. C-46,
    should be applied. Citing
R. v. Aalami
, 2017
    ONCA 624, at para. 18, Ms. Farrell argues that,
[i]t is open to this
    court to determine itself whether the counts should have been severed (and therefore
    whether the trial that followed was fair), based on the record before it.

[36]

In making this submission, the Crown also draws upon the standard
    of review applicable to severance decisions. In
R. v. Savoury
(2005),
    200 C.C.C. (3d) 94 (Ont. C.A.), Doherty J.A. wrote, at para. 26:

The trial judge's decision to refuse severance
    was an exercise of her discretion. Like any other discretionary decision, the
    trial judge's refusal to grant severance is entitled to deference:
R.
    v. Litchfield
(1993), 86 C.C.C. (3d) 97 at
    113-114 (S.C.C.). This court will interfere with the exercise of that
    discretion where the trial judge had failed to consider the relevant
    principles, or has considered an irrelevant principle.
If the trial judge has erred in principle, it falls to this
    court to decide, according to the proper principles, whether severance should
    have been granted.
Even if a trial judge has considered
    the relevant principles, this court will review the trial judge's exercise of
    her discretion against a reasonableness standard. [Emphasis added.]

See also
R. v. Jeanvenne
, 2010 ONCA 706, 270 O.A.C. 22, at para. 31; and
R. v.
    Last
, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 21.

[37]

Pulling
    these strands of s. 686(1)(b)(iii) and
Savoury
together, the Crown
    argues that this court should treat the lack of reasons in the same way as an
    erroneous severance decision, and then go on to determine whether severance
    should have been granted.

[38]

I would decline to decide the case on this basis. It would involve
    deciding the severance issue afresh, without any foundation other than the bare
    conclusion of the application judge. This is a fundamentally different exercise
    than attempting to evince reasons from the record. We are essentially being
    asked to reverse-engineer the application judges bottom line conclusion to
    deny severance. This is not the role cast for an appellate court when reasons
    have not been provided. This limit is recognized in
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, in which Charron J. wrote the
    following, at para. 32:

This exercise is not an invitation to
    appellate courts to engage in a reassessment of aspects of the case not
    resolved by the trial judge. Where the trial judge's reasoning is not apparent
    from the reasons or the record, as in the instant case, the appeal court ought
    not to substitute its own analysis for that of the trial judge (
Sheppard
, at paras. 52 and 55).

See also
R. v. Capano
, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 52 and 74. As this
    court said in
Frost
, at para. 2: It is not
    for this court to make findings of fact that are necessary for the
    determination of the presenting legal issues.

[39]

Acceding
    to the Crowns request would involve overshooting the limits of
Dinardo
in not just one, but two respects. This is because, embedded in the severance
    decision, is a similar fact evidence application. Because the application judge
    failed to deliver written reasons, this court does not have the benefit of his
    appraisal of the potential merits of this application. In fairness to the
    application judge, the Crown was non-committal on this issue. In the
    circumstances, the application judge may have given this factor minimal weight.
    But without reasons, we are left to guess.

[40]

The
    issue is further complicated by what happened at trial. For perfectly
    legitimate reasons, the trial judge determined that he did not need to consider
    the similar fact application. He evaluated the evidence on each count
    separately.

[41]

This combination of circumstances, involving a decision without
    reasons on one issue (severance), coupled with no decision on the other
    (similar fact evidence), presents serious challenges for appellate review. Both
    are discretionary decisions attracting deference on appeal. In the case of
    severance decisions, see
R. v. Litchfield
, [1993] 4 S.C.R. 333, at p. 354;
    and
Savoury
, at para. 26. For similar fact rulings, see
R. v. B.
    (C.R.)
, [1990] 1 S.C.R. 717, at p. 738;
R. v.
    Arp
, [1998] 3 S.C.R. 339, at para. 42;
R. v.
    Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73;
    and
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R.
    908, at para. 153.

[42]

In
    all of the circumstances, I have concluded that this is not an appropriate case
    for this court to decide these two issues afresh. Regrettably, these issues
    must be resolved at a new trial.

[43]

I
    appreciate the repercussions of deciding the case on this basis. The
    appellants trial was a model of fairness. As I explain below, the trial judge
    made no errors in conducting the trial. However, severance is not a minor or
    technical matter; it is a critical procedural decision, governed by the
    interests of justice:
Litchfield
, pp. 349-350.

[44]

The
    appellant was entitled to know why it was not in the interests of justice
    (see s. 591(3) of the
Criminal Code
) to conduct two short trials
    instead of one slightly longer trial. In order to meaningfully review the
    application judges decision not to order severance, this court requires
    considered reasons for making this discretionary decision, reasons that would
    have included at least some preliminary assessment of the similar fact evidence
    issue. Without reasons on either issue, this court is required to start from
    scratch, contrary to the proscription in
Dinardo.

[45]

The
    Crown relies on the decision of this court in
Aalami
, in which the
    trial judge failed to provide reasons for dismissing an application under s.
    11(b) of the
Charter
. This court determined that there was no need for
    a new trial because it was able to explain the result to the parties: at
    para. 18, citing
Sheppard
, at para. 55. The court applied the
    presumptive guidelines established in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631 and dismissed the appeal.

[46]

The
    test for severance is not so straightforward or self-applying. It is highly
    discretionary and requires a balancing of numerous factors. In
Last
,
    the Supreme Court of Canada articulated the factors to be considered. As
    Deschamps J. wrote, at para. 18:

The factors identified by the courts are not
    exhaustive. They simply help capture how the interests of justice may be served
    in a particular case, avoiding an injustice. Factors courts rightly use
    include:
the general prejudice to the accused
; the
legal and factual nexus between
    the counts
; the complexity of the evidence;
whether the accused intends to testify on one count but not
    another
; the possibility of inconsistent verdicts;
the desire to avoid a multiplicity of proceedings
;
the use of similar fact evidence at
    trial
; the length of the trial having regard to the
    evidence to be called; the potential prejudice to the accused with respect to
    the right to be tried within a reasonable time; and the existence of
    antagonistic defences as between co-accused persons. [Citations omitted; emphasis
    added.]

[47]

A number of the underscored factors in this
    passage were in play in this case. Some pointed in the direction of a single
    trial, such as the legal and factual nexus between counts, along with the
    desire to avoid a multiplicity of proceedings. Moreover, and while not
    mentioned in
Last
, the fact that the appellant
    ultimately elected trial by judge alone may have gone some way to ameliorating
    any prejudice involved in a joint trial.

[48]

Some of the other
Last
factors were more contentious  the proposed use of similar fact
    evidence and the appellants stated desire to testify only in relation to the
    N.P. count. Realistically, both of these issues had to be addressed in order to
    properly decide the severance issue.

[49]

As the Court held in
Last
, the admission of similar fact evidence will favour a joint trial.
    However, assessing the viability of a similar fact application on a severance
    application can be tricky, given that the burden to achieve severance is on the
    defence, while the burden to admit similar fact evidence is on the Crown. The
    exercise must be approached with great care: see
Last
, at para. 33;
Arp
, at para. 52;
    and
R. v. Waudby
, 2011 ONCA 707, at para. 4.

[50]

The Crown was reticent to fully argue the
    similar fact issue before the application judge. Moreover, the factual basis of
    the similar fact application had changed dramatically by the time the trial commenced
    20 months later. The three non-complainant witnesses did not testify at trial.
    This shift in position was not necessarily fatal to the correctness of the
    decision to refuse severance. However,

the application judges views on this issue, and the extent to which
    he relied on the possibility of the three additional witnesses testifying,
    would be important in reviewing his decision.

[51]

The viability of the similar fact application
    impacted on the appellants desire to testify only in relation to N.P. Counsel
    for the appellant told the application judge that the case for severance would
    dissolve if the similar fact application were to be allowed. In these
    circumstances, the appellant would not benefit from separate trials; he would
    be required to confront the testimony of both complainants in either scenario. Without
    an indication as to the viability of the similar fact application, it is
    difficult to evaluate the reasonableness of the appellants stated intention to
    testify in relation to just one of the counts.

[52]

As stated above in para. 6, the application judge
    was advised that there was a likelihood that the appellant would testify on
    the N.P. count but a substantially lesser likelihood that he would testify in
    relation to A.W. These are rather tentative expressions. Similar language was
    used in
Last
, which the trial judge in that
    case found to be too vague to be taken seriously, at para. 22. However, an
    accused person is not required to commit to a course of action in advancing a
    defence. As Deschamps J. stated, at para. 26:

However, while a formulaic expression of a
    subjective intention is not sufficient in and of itself to discharge the
    accused's burden to have the counts severed,
the
    trial judge should not substitute his or her own view for that of the accused
    and determine that the accused should testify or not. Rather, the trial judge
    must simply satisfy him- or herself that the circumstances objectively
    establish a rationale for testifying on some counts but not others
. The burden on the accused is to provide the trial judge with
    sufficient information to convey that, objectively, there is substance to his
    testimonial intention. The information could consist of the type of potential
    defences open to the accused or the nature of his testimony.
However, the accused is not bound by his stated intention; he
    remains free to control his defence, as the case unfolds, in a manner he deems
    appropriate.
[Citation omitted; emphasis added.]

[53]

It might be said that there was an objective
    rationale for the appellant to testify only on one count. It was at least
    arguable. While there were many similarities in relation to the two counts,
    N.P. alleged a more invasive sexual assault, one that might have led to a
    different tactical approach. To succeed on the N.P. count, especially given
    that she testified the appellant kissed her, the appellant may have been
    required to testify in order to effectively challenge N.P.s version. With
    A.W., the charge was fought on the more straightforward basis of a mistaken
    impression about the nature of touching during the massage.

[54]

The appellant did not need to convince the application
    judge that this was a winning strategy; he only needed to provide an objective
    rationale for testifying on one count but not the other.

[55]

In
Last
, the
    Court found that the appellants strategy was objectively justifiable. However,
    in the final analysis, it was not the only factor. In this case, it was a
    factor that needed to be weighed in the context of all the other factors,
    including the viability of the similar fact application.

[56]

The Crown argues that, if s. 686(1)(b)(iii) is
    not applied to the A.W. count (on which the appellant said he was reluctant to
    testify), it should be applied to the N.P. count (on which the appellant said
    there was a likelihood that he would testify). I would decline to apply the
    proviso in this manner. To do so would suggest that the trial was only half
    fair. Preserving the conviction on one count, but not the other, is an
    inadequate half measure that fails to properly vindicate the duty to give
    reasons for a fundamental decision, which is at the heart of this appeal.

[57]

I would allow the appeal on this basis and order
    a new trial. However, for the sake of completeness, I briefly consider the
    appellants other grounds of appeal.

(2)

Uneven Scrutiny

[58]

The
    trial judge did not approach the evidence unfairly by applying differential
    standards of scrutiny to the Crown and defence evidence. He carefully reviewed
    the evidence of each witness for honesty, plausibility, as well as internal and
    external consistency. This was undertaken through the lens of the presumption
    of innocence and the proper burden of proof.

[59]

This
    court has considered the complaint of uneven scrutiny on many occasions. The
    argument usually fails. In
R. v. Aird
, 2013 ONCA 447, 307 O.A.C. 183,
    Laskin J.A. explains why. At para. 39, he said:

The "different standards of
    scrutiny" argument is a difficult argument to succeed on in an appellate
    court. It is difficult for two related reasons: credibility findings are the
    province of the trial judge and attract a very high degree of deference on
    appeal; and appellate courts invariably view this argument with skepticism,
    seeing it as a veiled invitation to reassess the trial judge's credibility
    determinations.

[60]

In
R. v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, Pardu J.A.
    elaborated on what is required to succeed, at para. 19:

For an appellant to successfully advance this
    ground of appeal, she must identify something clear in the trial judge's
    reasons or the record indicating that a different standard of scrutiny was
    applied and something sufficiently significant to displace the deference due to
    a trial judge's credibility assessments. [Citations omitted.]

[61]

The
    appellant has been unable to identify anything in the trial judges reasons
    that would substantiate his claim. The passages he points to are minor and
    unimportant, holding the trial judges reasons to an impossible standard.
    Moreover, the trial judge was aware of this body of law. He said the following
    in his reasons:

In assessing the evidence of witnesses, the same level of
    scrutiny must be applied to all of the evidence provided at trial, whether
    given or introduced by a complainant, the defendant or some other witness. I
    believe I have done so.

[62]

The
    trial judges detailed reasons confirm that he observed the standard he
    correctly identified. There is no merit to this ground of appeal.

(3)

Immediate Reporting to the Police

[63]

In
    what appears to be a reverse recent complaint argument, the appellant argues
    that the trial judge erred in relying on the fact that N.P. reported the
    incident to the police almost immediately. The trial judge referred to this
    evidence when recounting defence evidence concerning N.P.s seemingly normal
    demeanour when she left the premises. N.P. said that she went into her car,
    screamed, and then called her boyfriend, who told her to go talk to the police
    immediately. She did. As the trial judge said in his reasons:

[N.P.] complained to the police within hours, if not minutes.
    Mr. Sahdev was arrested about six hours later. The fact [N.P.] made an almost
    immediate complaint to the police is not proof of Mr. Sahdevs guilt.

[64]

The trial judge did not err in dealing with this evidence. At
    trial, the appellants counsel argued that N.P.s credibility was in doubt
    because she failed to complain earlier, inside the Savy premises. The defence
    also suggested collusion on the part of the complainants. In these
    circumstances, the trial judge did not err in using this evidence in the way
    that he did: see
R. v. D.B.
, 2013 ONCA 578,
310
    O.A.C. 294, at paras. 30-38. He cautioned himself appropriately.

[65]

I
    would reject this ground of appeal.

F.

Conclusion

[66]

I
    would allow the appeal and order a new trial.

Released: DW November 23, 2017

G.T. Trotter J.A.

I agree. David Watt
    J.A.

I agree. Grant
    Huscroft J.A.


