



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Panchal, 2022 ONCA 309

DATE: 20220419

DOCKET: C67217

Tulloch, van Rensburg, and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Siddharth Panchal

Appellant

Myles Anevich, for the appellant

Andrew Cappell, for the respondent

Heard: September 7, 2021 by video conference

On appeal from the conviction entered on
    April 8, 2019 and the sentence imposed on April 8, 2019 by Justice Frederic M.
    Campling of the Ontario Court of Justice.

Tulloch J.A.:

[1]

The appellant was convicted of fraud over
    $5,000. At trial, the only witnesses were the victim and a purported unwitting
    accomplice; the appellant elected not to testify. The appellant appeals against
    his conviction, arguing that the trial judges reasons do not permit meaningful
    appellate review and that the verdict is unreasonable. In his notice of appeal,
    the appellant sought leave to appeal against his sentence; however, neither the
    appellants factum nor his oral submissions pursued this relief. Accordingly, I
    have treated the application for leave to appeal the sentence as abandoned.

[2]

At the conclusion of the hearing, we dismissed
    this appeal and indicated that reasons would follow. These are those reasons.

I.        BACKGROUND FACTS

[3]

On May 26, 2015, a man identifying himself as
    Thomas called the victim, Geeta Purohit, claiming to be a government official
    investigating her immigration paperwork. Ms. Purohit had immigrated to Canada
    from India in 2005 and became a Canadian citizen around 2010.

[4]

Thomas informed Ms. Purohit that unless she
    paid a fee, he would come to [her] door and that if her paperwork was not in
    order, she would be deported. Thomas instructed Ms. Purohit to make two bank
    transfers totalling $15,000; he would retain a $2,000 processing fee to remedy
    the issue with the paperwork, and the remainder would be returned to her via a
    government cheque in the mail.

[5]

Thomas stayed on the phone with Ms. Purohit
    while she attended at her local RBC branch and withdrew $15,000. Thomas then
    directed her to attend a Scotiabank and deposit $3,000 into an account
    belonging to Tarun Deep Singh Bal. Thomas then instructed her to attend a
    CIBC branch and deposit $12,000 into an account belonging to Kalpesh Solanki.
    Later that day, Thomas called Ms. Purohit again and instructed her to go
    to a UPS store and email the deposit receipts to a specified email address, and
    then to destroy the receipts.

[6]

Throughout that day and in the following days,
    Thomas warned Ms. Purohit against telling anyone what she had done and
    against going to the police. After several days had passed and Ms. Purohit
    still had not received the government cheque promised to her by Thomas, she
    confided in a friend, who encouraged her to report the incident to the police. Ms.
    Purohit did so and was able to recover the $3,000 Scotiabank transfer.

II.       DECISION BELOW

[7]

At the trial, the only witnesses were Ms.
    Purohit and Mr. Kalpesh Solanki, the owner of the account in which Ms. Purohit
    had deposited $12,000. It was not contested that Ms. Purohit was defrauded. The
    central issue to be determined was whether the appellant had participated in
    the fraud scheme.

[8]

The only evidence linking the appellant to the
    alleged fraud was Mr. Solankis testimony. Mr. Solankis evidence was that
    he and the appellant were friends. The appellant contacted him and asked to use
    his bank account to make a transfer. The appellant had stated that his account
    was seized by the police due to an outstanding criminal charge, and that he
    needed Mr. Solankis assistance to receive money from someone in India for his
    legal fees. Mr. Solanki provided the appellant with his CIBC account
    information. Mr. Solanki testified that he agreed to do so because he and the
    appellant are both from India.

[9]

Mr. Solanki further testified that on May 26,
    2015, the appellant called him to confirm that the money had been deposited.
    The appellant asked Mr. Solanki to withdraw the $12,000, which Mr. Solanki did
    and gave to the appellant later that afternoon. Mr. Solanki did not receive
    anything in return.

[10]

No evidence was tendered as to how or from whom
    the $3,000 was recovered. There was also no evidence as to the ownership of the
    email address to which Thomas asked Ms. Purohit to send the deposit receipts,
    and no evidence as to the ownership of the phone number from which Thomas
    called. The trial judge did not hear submissions from the Crown on these
    issues.

[11]

The trial judge found Mr. Solanki to be a
    credible and reliable witness. He found that Mr. Solanki testified calmly and
    in a straightforward way, and that he was a very believable witness. The
    trial judge treated Mr. Solankis evidence with special care, recognizing
    that this evidence presumably had led to the withdrawal of charges against Mr.
    Solanki. Having regard to all the evidence, the trial judge convicted the
    appellant.

[12]

The appellant was sentenced to two years
    incarceration less pre-trial custody credit at a 1.5 to 1 ratio. The trial
    judge also made a restitution order in the amount of $12,000 in favour of Ms.
    Purohit.

III.      ISSUES

[13]

The appellant raises two issues on his
    conviction appeal:

1.

Did the trial judge err by failing to provide
    reasons that were sufficient to allow for meaningful appellate review?

2.

Did the trial judge err by failing to turn his
    mind to other reasonable inferences aside from guilt and thereby rendering an
    unreasonable verdict?

IV.     ANALYSIS

(a)

Sufficiency of trial judges reasons

[14]

The appellants primary ground of appeal is the
    insufficiency of the trial judges reasons, which the appellant argues do not
    permit for meaningful appellate review. He contends that the trial judges
    reasons failed to sufficiently articulate how credibility concerns of the
    Crowns main witness, Mr. Solanki, were resolved, and why alternative
    explanations inconsistent with guilt were rejected, which amounts to a
    reversible error.

[15]

I disagree. A trial judges reasons must be read
    as a whole. Do the reasons achieve their intended function, which is to explain
    the result of the case? The reasons must justify and explain the results so
    that the losing partyin this case, the appellantand just as importantly,
    interested members of the public, can satisfy themselves that justice has been
    done, or not, as the case may be:
R.

v. Sheppard
, 2002 SCC 26, [2002] 1
    S.C.R. 869, at para. 24.

[16]

Viewed from a contextual perspective, reasons
    must achieve the function of preserving and enhancing meaningful appellate
    review of the correctness of the decision which factors in both errors of law
    as well as palpable and overriding errors of fact. As the Supreme Court in
R.
    v. Sheppard
noted, at para. 25:

If deficiencies in the reasons do not, in a
    particular case, foreclose meaningful appellate review, but allow for its full
    exercise, the deficiency will not justify intervention under s. 686 of the
    Criminal Code. That provision limits the power of the appellate court to
    intervene to situations where it is of the opinion that

(i) the verdict is unreasonable,

(ii) the judgment is vitiated by an error of
    law and it cannot be said that no substantial wrong or miscarriage of justice
    has occurred, or

(iii) on any ground where there has been a
    miscarriage of justice.

(b)

Assessment of Mr. Solankis credibility

[17]

The appellant submits that because of the
    brevity of the trial judges reasons, they failed to sufficiently articulate
    how credibility concerns were resolved and why alternative explanations
    inconsistent with guilt were rejected.

[18]

I disagree. The trial judges reasons adequately
    addressed the live issues at trial. The trial judge recognized that Mr.
    Solankis evidence was central to the Crowns case and that his credibility was
    the main issue on which the evidence depended. The trial judge explained why he
    found Mr. Solanki to be a credible witness. Moreover, he cautioned himself with
    respect to his assessment of Mr. Solankis evidence, noting that Mr.
    Solanki may very well have had a motive to minimize his own involvement in the
    fraudulent scheme and thus cast the blame on others, such as the appellant.
    After all, it was Mr. Solankis bank account in which the fraudulent deposit
    was made, and he was the first person who was suspected by the police to have
    participated in the commission of the offence.

[19]

The appellant further submits that there was no
    analysis of how the trial judge reconciled discrepancies in Mr. Solankis
    evidence or how he overcame evidence that on its face incriminated Mr. Solanki.
    In addition, the appellant submits that the trial judge over-relied on
    demeanour evidence in his credibility assessment and as well, failed to engage
    in a meaningful
R. v. W.(D.)
, [1991] 1 S.C.R. 742, analysis. I
    disagree.

[20]

The trial judge had the firsthand opportunity to
    hear all the evidence and observe all the witnesses.

[21]

The appellant chose not to testify, as was his
    right. While this was not a factor that could be considered by the trial judge,
    it is a factor that can be considered on appeal. The trial judge ultimately
    found Mr. Solankis evidence to be credible and articulated why he did. It is
    not for this court to second-guess his credibility findings, unless it can be
    shown that he committed an error of law or a palpable and overriding error of
    fact. I am not satisfied that any such error was committed here. I agree with
    the submissions of the respondent that, beyond the special care and scrutiny
    that the trial judge was required to give to Mr. Solankis evidence, the
    trial judge was not required to explicitly resolve or explain any other issue
    pertaining to his credibility finding.

[22]

In
R. v. G.F
., 2021 SCC 20, 459 D.L.R.
    (4th) 375, at paras. 81-82, the Supreme Court recently reiterated the
    long-standing principle that appellate courts ought to defer to trial judges on
    their credibility findings:

[81]  a trial judges findings of credibility
    deserve particular deference. While the law requires some articulation of the
    reasons for those findings, it also recognizes that in our system of justice
    the trial judge is the fact finder and has the benefit of the intangible impact
    of conducting the trial. Sometimes, credibility findings are made simpler by,
    for example, objective, independent evidence.Mindful of the presumption of
    innocence and the Crowns burden to prove guilt beyond a reasonable doubt, a
    trial judge strives to explain why a complainant is found to be credible, or
    why the accused is found not to be credible, or why the evidence does not raise
    a reasonable doubt.

[82]   Credibility findings must also be
    assessed in light of the presumption of the correct application of the law,
    particularly regarding the relationship between reliability and credibility.
    The jurisprudence often stresses the distinction between reliability and
    credibility, equating reliability with the witness ability to observe, recall,
    and recount events accurately, and referring to credibility as the witness
    sincerity or honesty. However, under a functional and contextual reading of
    trial reasons, appellate courts should consider not whether the trial judge
    specifically used the words credibility and reliability but whether the
    trial judge turned their mind to the relevant factors that go to the
    believability of the evidence in the factual context of the case, including
    truthfulness and accuracy concerns.[Citations omitted.]

(c)

W.(D.)
analysis

[23]

I also would not give effect to the appellants
    complaint about the trial judges
W.(D.)
analysis. I do not accept
    that the trial judge arrived at his decision by choosing between two different
    versions of evidence. As indicated by the respondent in its submissions, the
    case before the trial judge was a very straightforward and uncomplicated case.
    Given defence counsels concession at trial that the complainant had been the
    victim of a fraud, the trial judge effectively had only one issue to determine,
    which was whether he believed the evidence of the sole other witness, Mr.
    Solanki, that he received the $12,000 that the complainant deposited in his
    bank account at the behest and for the benefit of the appellant. The trial
    judge found Mr. Solanki to be a credible witness and accepted his evidence 
    accordingly, he found the appellant guilty. As has been held by this court and
    the Supreme Court of Canada, [t]he paramount question in a criminal case is
    whether, on the whole of the evidence, the trier of fact is left with a reasonable
    doubt about the guilt of the accused. [Citation omitted.] The order in which a
    trial judge makes credibility findings of witnesses is inconsequential as long
    as the principle of reasonable doubt remains the central consideration:
R. v. Vuradin
,
    2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21.

(d)

Demeanor evidence

[24]

I also do not accept that the trial judge
    over-relied on the demeanour of Mr. Solanki in assessing his credibility.
    As this court has recently stated, [t]he starting point is that although its
    admission may be somewhat rare, there is no bar to the admission of demeanour
    evidence:
R. v. Staples
, 2022 ONCA 266, at para. 38. It is settled
    law that demeanour evidence is a factor that a trial judge is entitled to
    consider, provided it is not the exclusive determinant of his or her
    credibility assessment. As stated by this court in
R. v. A.A.
, 2015
    ONCA 558, 327 C.C.C. (3d) 377, at paras. 131-32:

[
131
]   It
    is beyond dispute that demeanour is a factor the trier of fact is entitled to
    consider in assessing the credibility of witnesses and the reliability of their
    testimony.

[
132
]   On
    the other hand, it is equally well settled that a witnesss demeanour cannot
    become the exclusive determinant of his or her credibility or of the
    reliability of his or her evidence. [Citations omitted.]

[25]

While Mr. Solankis demeanour was one factor
    that the trial judge considered in his credibility assessment, it was not the
    only factor, nor was it the overriding factor. Mr. Solankis evidence was not
    contradicted by any other evidence. As pointed out by the respondent, his
    evidence was unshaken during cross-examination. As well, there was no internal
    inconsistency in the way that he testified or in the substance of his evidence.

[26]

Furthermore, the trial judge found that Mr.
    Solanki gave his evidence in a straightforward and consistent manner, which is
    a factor that the trial judge was entitled to consider in his credibility
    assessment.

(e)

Reference to Mr. Solankis police statement

[27]

The appellant also takes issue with the
    following paragraphs in the trial judges reasons, suggesting that the trial
    judge placed undue weight on the fact that parts of Mr. Solankis testimony
    were consistent with his police statement.

[28]

In summarizing Mr. Solankis evidence for the
    appellant, the trial judge stated:

His evidence is that, you asked him to allow
    you to use his Bank of Commerce account as a conduit, to allow money to be
    deposited there that he would withdraw and turn over to you.

When he gave that version of what transpired
    to the Hamilton Police and provided them with a picture of you that was
    available online, it led to your arrest and, presumably, to the withdrawal of
    charges against Mr. Solanki.

[29]

The appellant argues that these paragraphs in
    the trial judges reasons are evidence that the trial judge violated the rule
    against reliance on prior consistent statements to bolster the witnesss
    credibility.

[30]

While it is true that the trial judge referred
    to Mr. Solankis statement to the police, these paragraphs must be read within
    the overall context of the reasons and the live issues at trial, which include
    the submissions of counsel. When read as a whole, I am satisfied that the judge
    did not reference Mr. Solankis statement to suggest that Mr. Solanki was more
    believable because he gave an earlier version of his story to the police which
    was now consistent with his evidence at trial. Instead, the trial judge
    referenced Mr. Solankis statement to explain how the narrative of the case
    unfolded and how the charges came to be laid against the appellant and to be
    withdrawn against Mr. Solanki. Again, I do not place any weight on this
    argument.

(f)

Consideration of reasonable inferences other
    than guilt

[31]

The appellant submits that the trial judge
    failed to turn his mind to inferences inconsistent with guilt and therefore
    contributed to an unreasonable verdict.

[32]

The applicable legal principle is set out by the
    Supreme Court of Canada, in the case of
R. v. Villaroman
, 2016 SCC 33,
    [2016] 1 S.C.R. 1000, at para. 55, where the court stated:

A verdict is reasonable if it is one that a
    properly instructed jury acting judicially could reasonably have rendered.
    Applying this standard requires the appellate court to re-examine and to some
    extent reweigh and consider the effect of the evidence. This limited weighing
    of the evidence on appeal must be done in light of the standard of proof in a
    criminal case. Where the Crown's case depends on circumstantial evidence, the
    question becomes whether the trier of fact, acting judicially, could reasonably
    be satisfied that the accused's guilt was the only reasonable conclusion available
    on the totality of the evidence. [Citations omitted.]

[33]

The appellant argues that the trial judge did
    not consider reasonable inferences other than guilt that arose from the
    evidence or lack thereof. I disagree.

[34]

While it is settled law that cases based
    substantially on circumstantial evidence can only be proven if there are no
    reasonable inferences other than guilt, this was not such a case. This case was
    based neither wholly nor substantially upon circumstantial evidence. This was a
    case in which the direct
viva voce
evidence of the appellants friend
    implicated him as the perpetrator of the fraud. The appellant did not testify.
    The case depended on the credibility and reliability of the evidence of Mr.
    Solanki. The overriding issue in the case was the credibility of Mr. Solanki. I
    agree with the Crowns submission that, having accepted Mr. Solankis
    evidence, the only reasonable inference open to the trial judge was that the
    appellant was guilty of fraud. The trial judge was entitled to find
    Mr. Solankis evidence both credible and reliable, and having done so, the
    inescapable conclusion was that the appellant was guilty of the offence.

[35]

Furthermore, as indicated above, an appellate
    courts role in reviewing a trial decision involving circumstantial evidence is
    circumscribed and limited to the principles outlined in
R. v. Villaroman
.
    In the case of
R. v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at
    paras. 39 and 71, this court reiterated this principle:

[39] When a verdict that rests wholly or
    substantially on circumstantial evidence is challenged as unreasonable, the
    question appellate courts must ask is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the guilt of the accused was the
    only reasonable conclusion available on the evidence taken as a whole:
Villaroman
,
    at para. 55. Fundamentally, it is for the trier of fact to determine whether
    any proposed alternative way of looking at the case as a whole is reasonable
    enough to raise a doubt about the guilt of the accused:
Villaroman
, at
    para. 56.



[71] I approach our task in connection with
    this ground of appeal mindful of basic principles. A verdict is reasonable if
    it is one that a properly instructed trier of fact acting judicially could
    reasonably have rendered. In our application of this standard, we are to
    re-examine and, to some extent, within the limits of appellate disadvantage, to
    reweigh and consider the cumulative effect of the evidence adduced at trial. In
    this case, where the evidence on the controverted issue of knowledge is
    entirely circumstantial, our task is to determine whether a trier of fact,
    acting judicially, could reasonably have been satisfied that the appellant's
    guilt was the only reasonable inference available on the evidence taken as a
    whole. And we must also have in mind that it remains fundamentally for the
    trier of fact to decide whether any proposed alternative way of looking at the
    case is reasonable enough to raise a doubt.

[36]

In all the circumstances, I am not satisfied
    that the appellant has established errors of law or palpable and overriding
    errors of fact in the trial judges decision that warrant appellate
    intervention. I am also satisfied that the trial judges reasons are sufficient
    and adequately serve the important functions for which they are intended. They
    attend to the dignity interest of the appellant by conveying to him why the
    decision was made. They provide for public accountability as they are
    discernible when placed in the context of the evidence, the submissions of
    counsel, and the narrative of the evidence and how the case unfolded at trial.
    Read as a whole, the reasons permit effective appellate review. As well, I am
    satisfied that when the reasons are read as a whole, within the context of the
    evidence and live issues at trial, the verdict is a reasonable one.

V.      DISPOSITION

[37]

The appeal is dismissed.

Released: April 19, 2022 M.T.

M.
    Tulloch J.A.

I
    agree. K. van Rensburg J.A.

I
    agree. I.V.B. Nordheimer J.A.


