R. v. Vellore, 2011 ONCJ 203

COURT FILE No.: Toronto Region Citation: R. v. Vellore , 2011 ONCJ 203 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) D. Theman, ) for the Crown ) — AND — ) ) ) KISHEN VELLORE ) J. Stillman, ) for the accused ) ) ) ) HEARD: April 4, 14, 2011 FELDMAN J.: Introduction [ 1 ] Kishen Vellore entered not guilty pleas to charges of Sexual Assault and Fail to Comply. It is alleged that the defendant touched the complainant, A.N.’s penis in the course of a dental check up in his office scheduled by him on a Sunday afternoon.

If this is established, it would support the conclusion, as well, that the accused breached a term of his release on a separate similar charge that he not conduct his practice except in the presence of one of his employees. It is conceded there were no employees present at the time. [ 2 ] A.N. was called to give evidence for the Crown. In addition, a police officer testified to discovering and seizing a surveillance video that was then running in the reception area. Mr. Vellore testified in his own behalf. [ 3 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact.

I am mindful of the burden of proof on the Crown. The Evidence [ 4 ] A.N., age 33, is a dentist, trained in India, who came to Canada in 2004. He is presently a fourth year dental student at the University of Toronto and is set, after 2 years of study here, to graduate in June. [ 5 ] In 2008, he looked for the name of an orthodontist on line to place braces on his teeth and settled on the defendant. Mr.

Vellore installed the braces about a week prior to this incident alleged to have occurred on February 17 th . [ 6 ] On that day, A.N. indicated he expected a short visit and so left his wife and son waiting in their car in the parking lot. He said the defendant was alone in the clinic. He testified that after he sat in the dental chair, Mr. Vellore asked him if he had a medical examination when he arrived in Canada. He said he had.

Despite this, he says the defendant proceeded to check the lymph nodes in his neck, as well as his arm pits and stomach after which he unbuttoned the complainant’s pants and put his hand under his underwear touching his penis. [ 7 ] A.N. testified he was shocked and that he pushed the accused away telling him this was inappropriate. He says Mr. Vellore replied that he ought not to worry, that it wasn’t a gay thing. The complainant indicated that he felt some alarm but did not want a confrontation. He said he told the defendant to focus on his braces.

After the check up, he spoke for about a minute to the defendant in the reception area, shook hands with him and left. This is confirmed in the surveillance video. When he got back home, he called the police. [ 8 ] A.N. was confronted on the plausibility of his account. He said he had regard for the defendant as a person of authority and did not consider the external touching extraordinary, but was taken aback by the unexpected violation.

He told the court that while he was shocked, he wanted to avoid a confrontation and chose to let the accused finish his check up intending to get out as soon as he could in order to think about what had happened and what, if any, steps he should take in response. He said, this was the case, as well, in the reception area prior to his leaving. On all the evidence, I consider the complainant’s explanation for his reaction in these fast-moving circumstances objectively reasonable.

In my view, he was not seriously challenged on the material elements of the allegations. [ 9 ] The suggestion that the complainant arranged a special off-hours meeting to garner the defendant’s advice on professional development and new equipment, or that he sought a technical assistant’s employment makes little sense given that A.N. was then focused on the exams that would permit his full-time entry into the university program. [ 10 ] Mr. Vellore denied the allegations. He says he would not have performed dental work that Sunday as he was aware of his bail restrictions.

He told the court he was there alone doing paper and lab work. [ 11 ] Mr. Vellore testified it was the complainant who left a message asking to come in and that he complied out of professional courtesy. With regard to the purported request for employment, he said he told the complainant the only type of work he could do in the

defendant’s office was to take x-rays or help in the lab. He says he described how to take x-rays, angulation, the latest gadgets and thetaking of impressions.

It is difficult to accept that A.N., about to enter dental school to attain his qualifications in this country, would bemaking inquiries about work for himself of this kind, nor was there a real purpose in describing or demonstrating dental techniques thecomplainant would likely be familiar with when there was to be no job offered. [12] In similar vein, it makes little sense, as suggested by the defendant, that it was only after his braces were installed that thecomplainant pressed the defendant to cover his costs with insurance and that Mr. Vellore only then discussed setting up a payment planfor him.

These are matters that logically would be addressed prior to the work being undertaken. [13] Implicit in the accused’s testimony is the suggestion that the complainant fabricated these allegations to punish him forrejecting his request for employment and to avoid having to pay his bill, one that on this evidence and my assessment of the complainanttends to strain credulity. [14] As well, in the process of weighing credibility, I note that the accused’s somewhat dated conviction for Fraud under $5000is an offence of dishonesty. [15] I know turn to a weighing of the evidence and the credibility of the witnesses on the basis of reasonable doubt.

Credibility and The Reasonable Doubt Standard [16] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence. This standard of proof has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. [17] Where credibility is important, as in this case, the Supreme Court requires that the rule of reasonable doubt apply to thatdetermination: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397.

Cory J. directed trial judges to acquit if the evidence ofthe accused is believed or if he is left in reasonable doubt by it even if he does not believe that evidence.

The third element in thisanalysis obliges the judge to ask himself, even if he is not left in reasonable doubt by the evidence of the accused, whether he isconvinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence which he does accept. [18] In this analysis, rejection of an accused’s evidence may be derived from “a considered and reasoned acceptance beyond areasonable doubt of the truth of conflicting credible evidence”, but not on the basis of preferring the worth of one over the other: R. v.J.J.R.D., (ON CA), 2006 O.J. No. 4749 (Ont. C.A.); R. v.

Maharaj (2004), (ON CA), 186C.C.C. (3d) 247 (Ont. C.A.). [19] The trier of fact is entitled to assess an accused’s testimony in light of the whole evidence, including the testimony of thecomplainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, (ON CA), 2006 O.J. No. 3177(Ont. C.A.).

In fact, the court made reference in this regard to the “positive duty to carry out such an assessment”, given the possibilitythat the judge may be left in reasonable doubt concerning the guilt of the accused. [20] In a thoughtful review of these authorities and this issue, given the difficult application of W.(D.) principles to the standardof proof in cases involving one complainant and one accused (and his witnesses), Justice Duncan, in R. v.

Jaura, 2006 ONCJ 385, cameto a conclusion with which I agree both in logic and principle that, “a trial judge can reject the evidence of an accused and convict solelyon the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fairassessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence”. Findings of Fact and Credibility [21] I found A.N. both in demeanour and in the substance of his evidence to testify in a straightforward, if understated, manner.

There was neither embellishment nor a hint of animus. His muted response to what he describes as the defendant’s violation of hisbodily integrity was, on this evidence, as noted earlier, entirely reasonable. It is disingenuous to suggest that failure to protestimmediately when subject to inappropriate behaviour undermines a complainant’s credibility given the variety of circumstances andpersonalities at play in such situations.

In fact, A.N. spoke to police that day after leaving the office. [22] As well, the notion that A.N. was motivated to fabricate such malicious allegations to escape payment anddisproportionately punish the defendant is, on this evidence, unworthy of belief. [23] I accept and would rely on the complainant’s evidence. [24] I take a different view of Mr. Vellore’s evidence. As described earlier, it had self-serving and convenient qualities to it inrelation to the reason for A.N. being there on a Sunday, the untimely discussion of insurance and payment and the suggestion offabrication.

I don’t accept the accused’s testimony on the material allegations and am not left in reasonable doubt by it, in part, becauseof my acceptance of the complainant’s evidence. I am satisfied beyond a reasonable doubt that the defendant inappropriately touched thecomplainant’s penis in the course of a dental appointment where no employee was present. Conclusion [25] In the result, Mr. Vellore will be found guilty on both counts.

Released: April 14, 2011 Signed: “Justice L. Feldman”