R v Chander, 2022 ABKB 771

Court of King’s Bench of Alberta Citation: R v Chander, 2022 ABKB 771 Date: 20221122 Docket: 170209753S1 Registry: Calgary Between: His Majesty the King Crown - and - Ashwani Chander Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice E.C. Wilson _______________________________________________________

Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify AB must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Appeal from the Conviction and Sentence by The Honourable Judge W.J. Cummings Oral Decisions on the 15 th day of January, 2021 and the 23 rd day of June, 2021 Introduction [ 1 ] This trial unfolded in a somewhat fragmented fashion, initially due to COVID.

The trial proceeded September 8 and 9, 2020 – following a voir dire on April 3 and 8 and December 4, 2019, involving a different defence counsel. Trial counsel only made written submissions on the matter of verdict. That decision was given on January 15, 2021. Counsel then provided written and oral submissions on April 1, 2021 regarding sentence, which was decided on June 23, 2021. Thus references to the trial record are to the filed submissions of trial counsel plus the court transcript from various days which do not use running pagination.

Facts [ 2 ] The following is extracted from the Learned Trial Judge’s sentencing decision, June 23, 2021. [ 3 ] The accused was a 43-year-old veterinarian. He and his wife were, at the time of trial, the owner/managers of a veterinary clinic in Airdrie, Alberta. [ 4 ] The female complainant, AB, was a 20-year-old student. At the beginning of January 2017, AB was provided an opportunity, through a local Airdrie youth club, to gain work experience at the clinic and was hired by the accused in early January 2017.

She had never worked with any other veterinarian before and in fact, this was her first employment. [ 5 ] The Trial Judge found the offender committed 3 offences over a 2-day period between February 11 th and 12 th , 2017. The Trial Judge categorized the facts supporting those offences as the “residence allegation” in Count 1, the “Walmart allegation” in Count 2 and the “clinic allegation” in Count 3.

The residence allegation – Count 1 [ 6 ] The residence allegation arose from a visit AB made with the offender to the offender’s Airdrie family residence on February 11 th , 2017 after accompanying him in his vehicle from the clinic for the purpose of AB cleaning portions of the residence. The accused’s family were all out of the country at the time. [ 7 ] AB was sexually assaulted by the accused on two occasions that evening while they were alone in the residence.

First, when they were in the area of the upstairs master bedroom and second, when they were downstairs on a couch. [ 8 ] While the accused and AB were alone in the vicinity of the master bedroom, the offender approached AB, pushed her up against the wall while pressuring her about having sex. He held her arms up against the wall with her hands in the air and kissed her by putting his tongue in her mouth. She told him to stop, she did not want this. She pushed him away and he eventually stopped. [ 9 ] Later that same evening, the accused and AB were alone together on a couch downstairs in the residence.

The accused pushed her down and once positioned, touched AB over her clothes, squeezed her breasts and buttocks, put his hand down her pants and touched her vagina. AB told the accused repeatedly to stop and tried to get up, but he pulled her back. She resisted, pushed him away and was able to get up off the couch and told him she wanted to go home. She was not comfortable there and he needed to stop. [ 10 ] The accused was convicted of sexual assault on Count 1.

The Walmart Allegation – Count 2 [ 11 ] The Walmart allegation arose from a car trip made by the accused and AB in the accused’s vehicle the day following on

February 12, 2017 on the way from the clinic to an Airdrie Walmart store, and then on the return trip from Walmart back to the clinic. The accused drove his vehicle to and from the Walmart location. AB remained seated in the vehicle’s front passenger seat on both occasions. [ 12 ] The accused touched AB on the thigh, in the context of an unflattering comment about AB’s physical makeup and a request for a kiss in the parking lot. [ 13 ] The accused was acquitted of sexual assault but convicted of the included offence of assault.

The Clinic allegation – Count 3 [ 14 ] The clinic allegation arose from the accused and AB’s interaction within the clinic after they returned from Walmart while AB was seated on a chair working at a clinic computer. That interaction was recorded by the clinic’s CCTV system. [ 15 ] While hugging AB from behind the accused deliberately reached into AB’s shirt and touched AB’s breast without her consent. [ 16 ] The Trial Judge found the accused guilty of sexual assault on Count 3. Issues on Appeal [ 17 ] The Appellant challenges these convictions by submitting that the Trial Judge: (

i) erred in his assessment of the accused’s credibility; (ii) erred in his assessment of the complainant’s credibility and (iii) erred in admitting and relying upon the evidence of Bridgett Edworthy.

i) Errors in the assessment of the accused’s credibility [ 18 ] The appellant introduces this complaint with these comments in paragraph 75 of his Memorandum: 75. The trial judge’s reasons for disbelieving the accused’s testimony were based on distortions and a misapprehension of his evidence, rendering the rejection of his testimony unfair. Moreover, the suspicion with which he viewed Dr.

Chander’s testimony tainted the proceedings, rendering the trial unfair and the verdict the product of a miscarriage of justice. [ 19 ] At paragraph 85, the Appellant submits that the Trial Judge distorted the accused’s evidence in order to undermine it. [ 20 ] The first example of this alleged distortion occurred when the Trial Judge took issue with the accused saying there was no need for the complainant to clean the upstairs master bedroom because Valerie had already done it “but provided no insight as to who Valerie was”. [ 21 ] The appellant submits that Valerie could only have been Valerie Simpson, another staff member at the accused’s veterinary clinic, who had been referenced during the trial.

The Crown takes the same view. [ 22 ] However I am not satisfied that the Trial Judge saw that connection – even if counsel are correct. Let me explain. [ 23 ] Throughout his lengthy reasons, whenever the Trial Judge referred to any clinic employee, he carefully referred to them solely by their initials – never by name. He referred to the complainant Sherri Hall as A.B. – not even her own initials. I presume this was done to better enforce the ban on publishing any information which might tend to identify the complainant, per s 486.4 of the Code .

Thus at p 7/35 and p 8/2 of his verdict, the Trial Judge refers to a “V.S.” who is, on the record, Valerie Simpson. [ 24 ] Obviously, the Trial Judge knew who V.S. was. But by referring in his reasons to a “Valerie” would be inconsistent with identifying Valerie Smith by her initials. [ 25 ] I can only infer therefore that the Trial Judge presumed that “Valerie” was someone other than “V.S.”. [ 26 ] Hence his concluding comment “whoever she is”. [ 27 ] I do not find there was any distortion of the accused’s evidence by the Trial Judge.

He simply was expressing his understanding of the accused’s evidence which was open to him as the finder of fact. It might be noted that his decision issued over 4 months after the accused testified. [ 28 ] Next, the appellant takes umbrage with the Trial Judge’s comments concerning the accused mixing the complainant’s work at the clinic with her doing work at his home, alone. The appellant submits that this was, in fact, the “norm’. However, no evidence is cited to support this claim. In fact, the evidence of Ms.

Edworthy, another clinic employee, was completely to the contrary (see April 8, 2019 p 80/15-21). [ 29 ] The appellant also thinks the Trial Judge was wrong to have thought it was suspect for the accused to take the young complainant to his home to act as a “buffer” between he and a female masseuse because, by that time, the complainant had been known by him for several weeks. [ 30 ] One might be forgiven for observing that such a brief time period actually underscores the basis for the judge’s remarks.

In any event, his remarks should be read in full, to properly appreciate the Trial Judge’s view of the matter – see verdict at p 42/24-31.

[ 31 ] With respect, the Appellant’s criticisms are without foundation. The Trial Judge’s suspicions were not baseless. They did not serve to distort his analysis of the accused’s credibility. [ 32 ] Next, at paragraph 91, the Appellant submits that the Judge fabricated a contradiction in the evidence of the accused when he testified about having the complainant come over to clean his house. [ 33 ] The Appellant develops this complaint at paragraphs 92-95 of his Memorandum.

The Crown’s response at paragraphs 46 to 48 of its Memorandum challenges the Appellant’s assessment of the evidence. [ 34 ] After reading the Judge’s verdict at p 43/7-26 as well as the underlying testimony from the accused on this point, it is clear that there was an inconsistency in the accused’s testimony. It was not fabricated by the Trial Judge.

More importantly, within his remarks at lines 22 to 26, he advises why this inconsistency may not have been an inconsistency of little significance. [ 35 ] Next, the appellant complains that the Trial Judge misstated his evidence in relation to a wall in the upstairs bedroom. During the trial, defence counsel had the accused describe the bedroom following which this question and answer occurred – see September 8, 2020 at p 124/23-25: “Q So, Sherri Hall described you pushing her up against a wall this morning. Is there such a wall in your bedroom?

A There is no wall over there” [ 36 ] The impugned comments of the Trial Judge are at p 45/1-2 of his verdict: “He described the bedroom in some detail where he was alleged to have pushed her up the wall. He denied there was a wall in the bedroom”. [ 37 ] Clearly the accused did not say that.

Equally clearly, for a room to exist, the presence of walls is a requirement. [ 38 ] To make sense of his remarks, the Trial Judge could only have meant that he understood that the accused was denying that there was a wall in the bedroom at the location described by the complainant . [ 39 ] The appellant at paragraph 100 of his Memorandum appears to accept that this is certainly what the accused was meaning in his testimony. [ 40 ] I’m satisfied that is also what the Trial Judge was meaning with his word choice.

There was no misunderstanding of the accused’s evidence. [ 41 ] The Appellant’s complaints continue at paragraph 103 of his Memorandum. The Appellant references his testimony at September 8, 2020 p 125/27-31. He was asked by his counsel if he had a conversation with the complaint at a particular point in time. His answer was “NO”. Period. Full Stop.

He then, however, outlined that such a conversation did occur including the topics discussed. [ 42 ] The Trial Judge is criticized for saying that the Accused’s outline of the conversation entirely contradicts his earlier denial of having any conversation at all. [ 43 ] But, with respect, the Accused did contradict his earlier denial. In other words his correct answer should have been “YES” – not “NO”.

The Appellant raises a similar complaint at paragraphs 105 and 106 of his Memorandum. [ 44 ] I agree that it may seem somewhat strained or technical to make much out of what may really have been more of a misstatement by the accused – saying “NO” when he really meant to say “YES”, but it is curious how this well-educated accused could have been so mistaken in his testimonial word choice. I do not agree with his appellate counsel who sought to excuse it as the accused’s “baseline normal response”.

In fact, it only occurred twice. [ 45 ] At paragraph 104 of his Memorandum, the Appellant criticizes the Trial Judge’s challenge of what he characterizes as simply innocuous comments in his testimony, such as when he claimed that, at some point, the complainant was in her “usual mood”. The Trial Judge wondered how he would know her usual mood given his minimal interaction with her.

The appellant says there was more than minimal interaction. [ 46 ] But while the Appellant fairly suggests there was opportunity for more interaction, no evidence is cited to demonstrate that there was, in fact, more interaction between the two. In fact, the accused’s evidence is to the contrary – see September 8, 2020, p 111/14- 16, 29-31. This complaint cannot be sustained. [ 47 ] At paragraph 109, the Appellant submits that the Trial Judge incorrectly claimed that the accused denied ever being upstairs in his house with the complainant.

However the cited passage, when read in its entirety, clearly demonstrates that the accused was actually denying that he was ever upstairs with the complainant at the time she testified he was then assaulting her. The Trial Judge was not in error. [ 48 ] At paragraphs 110 and 111 of his Memorandum the Appellant submits that the Trial Judge misconstrued the accused’s evidence whether he had ever been to a particular Walmart or needed the complainant to be with him to help locate garbage bags within that Walmart. [ 49 ] However I find that it is the Appellant who has misconstrued what the Trial Judge actually said.

In this regard, this Court adopts as its reasons, the Crown’s submissions at paragraphs 60-62, 66-69 of his Memorandum. This complaint is not sustained. [ 50 ] At paragraphs 112-114 the Appellant complains that the Trial Judge doubted the accused’s credibility because he had the opportunity to commit the offence whilst in his car with the victim during the Walmart trip and whether there was, in fact, any

discussion about the victim’s grandfather’s illness during that trip. [ 51 ] On both of these complaints I find that the Appellant has misconstrued the judge’s comments and the evidence. In this regard the Court adopts as its reasons, the Crown’s submissions at paragraphs 72-76 of his Memorandum.

This complaint cannot be sustained. [ 52 ] All that being said, it is clear that the Trial Judge, on two occasions, found contradictions in the accused’s testimony when there were none. [ 53 ] One related to his alleged failure to recall some words and deeds at a particular point during the events in question, when in fact, the accused was actually testifying that he could not recall what the victim had said in this regard in her testimony earlier in the trial.

Clearly the Learned Trial Judge misunderstood the accused. [ 54 ] The second error occurred when the Trial Judge found the accused had contradicted himself about sitting or laying on the couch. The Crown correctly concedes there was no contradiction, and indeed, the accused’s evidence on this point is consistent with the victim’s testimony. [ 55 ] In the result, it is clear that the Trial Judge erred on these two evidentiary points when assessing the accused’s credibility.

Are these errors of any consequence? [ 56 ] A misapprehension of evidence such as could result in an unfair trial or a miscarriage of justice requires that the misapprehended evidence play an essential

part in the reasoning process resulting in the conviction – see R v Lohrer , 2004 SCC 80 at paragraph 1 . [ 57 ] In R v Lohrer at paragraph 4 : “The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge” [ 58 ] The Appellant’s complaint founders on the shoals of this requirement. The impugned remarks deal with two pieces of testimony which are peripheral details, not going to the substance of the Trial Judge’s reasoning.

It was not an essential part of the reasoning process resulting in conviction nor to the conclusion that the accused was not a credible witness.

That latter determination was arrived at after an exhaustive analysis of many, many other pieces of evidence which are not attacked by the Appellant. [ 59 ] This ground of appeal is dismissed. ii) Alleged errors in the assessment of the Complainant’s Credibility [ 60 ] The Appellant submits that the Trial Judge failed to assess material inconsistencies in the complainant’s evidence. [ 61 ] The first alleged material inconsistency relates to what has been called the “clinic incident” – Count 3 – where the accused put his hand down her shirt and touched her breast.

The incident was caught on the clinic’s video system. [ 62 ] While the complainant was asked to describe during Examination in Chief what had occurred and what was being depicted at certain points while the video was being played for her, the process changed somewhat during cross-examination. [ 63 ] Initially, defence counsel suggested that the video showed a particular sequence of motions or actions and the complainant agreed with what defence counsel was suggesting. But no video was being contemporaneously shown. [ 64 ] It turns out, however, that the suggested and agreed upon sequence of events was incorrect.

The video provides the accurate version of the actions and event sequence, as detailed in the Judge’s analysis – see verdict, January 15, 2021 p 62/35-65/38. [ 65 ] At paragraphs 131 and 132 of his Memorandum, the appellant faults the judge for failing to deal with the complainant’s cross-examination evidence when it is at odds with the video. But what really happened was that the complainant merely agreed with what defence counsel was erroneously stating. I presume counsel was in honest error when doing so.

In its Memorandum, the Crown describes the defence approach as “mischaracterizing the evidence” – see paragraphs 81 – 89 therein. [ 66 ] But it is unsettling to note that when Crown counsel urged the playing of the video at this point “to make sure my friend isn’t asking questions or twisting questions in a way that gets her to be conflicted when there’s really no conflict.”, defence counsel replied that, actually, it was his job to do that. See September 8, 2020; p 85/24-86/30. With respect, he was mistaken. [ 67 ] Incorrectly reciting evidence to a witness is never permissible.

Leading a witness into agreeing something is a fact when counsel should know it’s not a fact, is never permissible. “The cross examiner cannot mislead or leave a false impression with the witness” (Watt, David. Watt’s Manual of Criminal Evidence , Toronto: Thomson Reuters, 2022, p 285.

See also R v Lyttle , 2004 SCC 5 at para’s 44, 48, 50 and 52.). [ 68 ] And if counsel honestly, but mistakenly believed in a series of facts and had the complainant agree with those mistaken facts, it is an inaccurate and extremely unfair construct to suggest this is something worthy of being described as an inconsistent statement of the victim, when the “inconsistency” is a fiction created by counsel. [ 69 ] The video is the best evidence. The video does not exonerate the appellant.

Precious little regard should be paid to the complainant’s inaccurate recollection of what the video showed when it was solely prompted by a factually inaccurate cross- examination. At the very least, any “inconsistency” is rather illusory. [ 70 ] Subsequent to the above noted objection from the Crown, defence continued his cross-examination, but this time, while

excerpts of the video were played. It must be noted, in fairness to counsel, that during this portion of the cross-examination, there was no repetition of the earlier, inaccurately stated sequence of events. The appellant’s Memorandum makes no mention of this portion of the cross-examination.

But the Trial Judge referenced this – see verdict p 22/22-23/4. [ 71 ] After much consideration, I find there is no merit in this complaint. [ 72 ] Next, the appellant criticizes the Trial Judge’s assessment of the victim’s credibility by suggesting that he failed to fully appreciate a particular inconsistency between her evidence and a prior police statement regarding the incident on the couch in the accused’s residence. [ 73 ] In her statement to police, the complainant said the accused put his hand down her pants.

In her testimony she said that when he put his hand down her pants he touched her skin to skin, on or near her vagina. [ 74 ] In cross-examination she agreed that she said nothing in her statement to police about touching skin to skin, on or near her vagina – see September 8, 2020, p 54/37-55/8. [ 75 ] But in redirect, the Crown took her back to her police statement and asked the following at September 8, 2020, p 102/23- 103/3: Q My friend walked you through this, and you had stated: (as read) And then he was, like, going down my pants, and I told him, Can you please stop? Like, this is not appropriate. Like...

Can you explain to the Court what you meant when you were telling the police he was going down your pants? A With his hand he was going down my pants, feeling around, on my skin. Q Okay. Where? A On my vagina. Q Okay. You didn’t use the word vagina. A No. Q But you’re saying that’s what you meant when you said – A Yes. Q -- “going down my pants”? A Yes. Q Okay. Thank you. Nothing further. [ 76 ] It is clear therefore that the inconsistency lies in the witness simply not explaining what she meant in her police statement.

And no one had asked what she meant until this trial. [ 77 ] In the course of his lengthy reasons the Trial Judge referenced the inconsistency noted above – see verdict p 14/25-30; and p 28/10-12. [ 78 ] In the

section of his reasons regarding the complainant’s credibility, specifically as it related to these inconsistencies, the Trial Judge said the following – see verdict, p 50/6-10; 23-27: ...Her recollection of his actions while they were on the couch downstairs were not completely consistent with what she told police, but I see this to be symptomatic of the recollection of an individual involved in a dynamic, stressful interaction, rather than constituting a glaring inconsistency. ...

The fact that AB may have used apparently uncertain vocabulary in direct examination describing the area of her body that the accused touched while they were on the couch is immaterial, knowing that AB was descriptive of what it was he was doing and the area he was touching her, that is the area of her vagina.

Any uncertainty is resolved by AB’s re-examination by her finally saying he was feeling around on her skin, on her vagina. [ 79 ] And in a later passage overlooked by the Appellant, the Trial Judge said the following – see verdict p 57/30-34: AB’s evidence was not without its inconsistencies but those inconsistencies, including those which may appear to have arisen from her police statement, still do not change my view of her evidence as constituting a credible and reliable recitation of these occurrences and in my view, it itself could just as easily stand as an explanation for rejecting the accused’s evidence. [ 80 ] It seems quite clear that the Trial Judge was aware of the inconsistency between the complainant’s testimony and her police statement.

The Trial Judge dealt with it and, at the end of the day, was not concerned that it detracted from his overall credibility assessment.

[ 81 ] I am satisfied therefore that there is no merit to this complaint. [ 82 ] The appellant next submits that the Trial Judge failed to recognize that in relation to the upstairs bedroom episode, the complainant said that the accused was holding her only by her wrists and, yet, at another point in her testimony said that he was holding her only by her arms. [ 83 ] In Direct, she first said she was held by her arms; then she agreed it was by her wrists – see September 8, 2020, p 9/26-34.

In cross-examination she maintained it was by her wrists – see September 8, 2020, p 44/10-12. [ 84 ] But thereafter, defence counsel twice misstated her evidence to say she was being held by her arms and that it left no bruising or redness on her arms – see September 8, 2020, p 44/27-30; p 45/6-8. [ 85 ] I can only infer from his misstatements of the evidence, that counsel was simply indifferent whether the complainant was held by her wrist or arms. [ 86 ] But the Trial Judge’s overview of the evidence noted that the complainant said she was held by her wrists – see verdict p 11/19; p 13/26-27. [ 87 ] Finally , the significance of where she was grabbed appears to be of little moment because the thrust of her evidence appears to be that the accused pushed her up against a wall and held her arms up by grasping on to her wrists. [ 88 ] There is little, if any, inconsistency in the witness’s testimony regarding this wrist/arms issue.

In the result, I dismiss this complaint. [ 89 ] The appellant next submits that the Trial Judge had to have paid greater heed to the complainant’s testimony regarding the duration of the incident in the bedroom. Initially she said it took 10-15 minutes; later she said it was probably closer to 10 minutes. With respect, this discrepancy is without any significance.

I agree with the Trial Judge that it is inconsequential – see verdict p. 48/22. [ 90 ] Lastly, the appellant submits that the Trial Judge disregarded the complainant’s inconsistent recall of how many times the accused initiated “sexually charged discussions” with her. [ 91 ] With respect, the Appellant is in error. The Trial Judge did deal with them, but concluded that her recollection of the frequency of these discussions – some 3.5 years after the event, – were inconsequential – see verdict p 48/27-41. [ 92 ] I see no error in coming to that conclusion.

Accordingly I dismiss that complaint. [ 93 ] In the result, I dismiss this ground of appeal. iii) Alleged error in admitting and relying upon the evidence of Bridgett Edworthy [ 94 ] At this point, it will be useful to note that the evidence of Edworthy only references count 3 – the clinic allegation. Edworthy had located the video recording of the incident and in a voir dire regarding the video’s admissibility testified to what she saw in the video and her negative reaction to what she had seen.

She also testified regarding her observations of how the complainant’s emotional state had changed during the time she was employed at the clinic. [ 95 ] While counsel agreed to admit all of the voir dire evidence into the trial, defence counsel argued that Edworthy’s testimony concerning what she saw on the video as well as her visceral reaction to what she saw was all irrelevant and should be disregarded by the trial judge. [ 96 ] The appellant submits that the Trial Judge erred by relying upon Edworthy’s impugned testimony in coming to his verdict. [ 97 ] The short answer is that the Trial Judge did no such thing, although he clearly stated that he would have done so, had it been necessary to support his conviction of the accused on this count. [ 98 ] Here is how the verdict on Count3 – the clinic allegation – was reached as the Trial Judge applied his W(

D) analysis. [ 99 ] On the first prong of W(D) , he held that he did not believe the accused, nor did his evidence raise a reasonable doubt – verdict p 61/11-13. [ 100 ] The appellant’s first ground of appeal dealt with complaints regarding how the Trial Judge handled the accused’s credibility. Those complaints have been dealt with on this appeal and that ground of appeal has been dismissed. Thus the Trial Judge’s finding on the first prong of W(

D) stands unimpeached. [ 101 ] On the second prong of W(D) , the Trial Judge believed the complainant that she had been sexually assaulted and further, that this finding was reason enough to reject the accused’s exculpatory evidence – see verdict p 61/18-22. [ 102 ] The appellant’s second ground of appeal dealt with complaints regarding how the Trial Judge handled the complainant’s credibility. Those complaints have been dealt with on this appeal and that ground of appeal has been dismissed. Thus the Trial Judge’s finding on the second prong of W(

D) stands unimpeached. [ 103 ] The only possible verdict after disbelieving the accused’s version of events and finding that the accused’s version of events did not raise a doubt coupled with believing the complainant’s version of events which established the commission of a sexual assault is obvious – guilty of sexual assault.

[ 104 ] Thus the Trial Judge could have properly concluded his reasons for verdict at that point. No reference to the third prong of W(

D) was necessary. But he did not stop there. [ 105 ] Instead, he said “NOW, if I am wrong in reaching that conclusion as I have, the analysis of the third prong of W(

D) on this count could just as easily take into account [Edworthy’s] evidence heard in the voir dire and the video evidence contained in Exhibit No. 2” Decision, p 61/24-26). [ 106 ] Since I have found that the Trial Judge was not wrong in his analysis and findings on the first two prongs of W(D) , his subsequent remarks quoted above are, strictly speaking, irrelevant. They are obiter. They are not his reasons for conviction. They were only open for possible consideration by this Court if the Trial Judge’s reasoning to support conviction was found wanting.

At that point, this alternative approach would have to be considered. [ 107 ] But I have found that the Trial Judge’s reasoning to support conviction was correct and escapes appellate censure. Accordingly, the Trial Judge’s alternative approach – whether right or wrong – need not be considered by this Court. In essence, I would be offering my own obiter remarks upon the Trial Judge’s obiter remarks. [ 108 ] Further, the accused does not complain about the Trial Judge’s right to view the video and make his own findings of fact from that viewing.

The accused only complains about the Trial Judge potentially relying upon Edworthy’s testimony regarding what she saw in the video and her reaction to what she saw. [ 109 ] At the end of the day it seems obvious – given the Trial Judge’s proper findings and his right to view the video to decide what it is that he saw – any reference he made to what Edworthy saw is harmless error at worst. [ 110 ] Accordingly, the appellant’s third ground of appeal is dismissed. [ 111 ] While that would usually be the end of matters relating to the conviction appeal, there are two further points that I wish to address. [ 112 ] During oral submissions regarding the clinic episode, appellate counsel for the accused suggested that the accused’s position at trial was a denial of touching the complainant’s breast but, in the alternative, if he did touch her breast, it was accidental ie nonintentional. [ 113 ] Counsel has subsequently written the Court to advise she was in error – that the accused’s testimonial position was a complete denial of touching the complainant’s breast.

The Court wishes to record its appreciation of this correction. The Court also wishes to confirm that, as a result of its own review of the record, it is clear that the accused’s testimonial position was a complete denial of touching the victim’s breast. There was no alternative . [ 114 ] But I think this problematic

interpretation of the accused’s position requires further inquiry. I say this because I note that in his reasons for verdict, the Trial Judge also suggests that this alternative explanation of accidental, innocent touching was part of the accused’s defence.

See verdict p 10/14-17, p 30/33-34 and p 60/16. [ 115 ] But, when reviewing the accused’s testimony of the clinic episode, the Trial Judge never suggested that the accused gave this alternative explanation – see verdict p 23/30-26/36. [ 116 ] The obvious question is – what or who was the source for the Trial Judge’s comments regarding this alternative defence – “But if there was any touching of the breast, it was accidental”. [ 117 ] The answer is – the accused’s trial counsel, in his written submissions to the trial judge – see, as part of the appeal record, “Written Argument of Counsel at Trial/Sentencing” Tab 1, para 112, sub V; coupled with a lengthy submission titled “Accidental Touching”, paras 118-134. [ 118 ] Unfortunately, nowhere in any of the Crown’s responses, is there any suggestion that defence counsel’s submission was wholly irrelevant, i.e. being without evidentiary support.

The Crown made only a brief observation that the video disputed any claim of accidental contact – see “Written Argument of Counsel at Trial/Sentencing” tab 2, para 39. [ 119 ] Thus the Trial Judge was left with a strong defence submission suggesting an alternative basis upon which an acquittal should be registered and a Crown submission which wholly ignored that erroneous submission. [ 120 ] Thus, when it came to this final analysis on the clinic episode, the Trial Judge dealt with and dismissed this alternative explanation pleaded by counsel – see verdict p 60/16 and following. [ 121 ] One cannot fault the Trial Judge for properly dismissing a defence that did not exist in fact or law. [ 122 ] Ironically, I note that appellate counsel expressed some concern that the Trial Judge may have been distracted from his task by spending time dealing with irrelevant issues in his verdict.

The “accidental touching” issue was not cited, as an example. Instead, an example chosen by appellate counsel was his discussion of the law regarding sexual assault, including the issue of consent, when consent was clearly not in issue. However, defence counsel at trial thought it necessary to make lengthy submissions upon the law of sexual assault – see Written Argument of Counsel at Trial/Sentencing Tab 1, paragraph’s 108 – 134. [ 123 ] Thus, it would appear that the Trial Judge’s reference to the matter of consent must have been simply introduced for completeness in his discussion of the law of sexual assault.

Surely he cannot be faulted for being, perhaps, unnecessarily thorough. [ 124 ] The appellant has not satisfied me that the Trial Judge may have distracted himself from his task, by dealing with peripheral or irrelevant matters.

[ 125 ] In the result the appeal against the convictions is dismissed. Sentence Appeal [ 126 ] At sentencing, the Crown sought a 9–12-month jail sentence. The accused sought a lengthy conditional sentence; alternatively an intermittent sentence with probation. [ 127 ] The Crown agreed that, as a matter of law, a conditional sentence was available.

The defence obviously agreed, by its alternative submission, that jail was also an available sentence. [ 128 ] The sentences imposed were as follows: Count 1 – 120 days; Count 2 – 1 day consecutive; Count 3 – 119 days consecutive to Counts 1 and 2 followed by 18 months probation along with various ancillary orders. [ 129 ] On appeal, the accused seeks a variation of his sentence from custodial to conditional. [ 130 ] The Trial Judge gave detailed reasons why, in these circumstances, he was not prepared to impose a conditional sentence – see June 23, 2021 p 16/36 – 24/1. [ 131 ] The appellant submits, and I agree, that the judge’s reason to impose a jail sentence was due to the aggravating factors he identified. [ 132 ] Because the appellant takes issue with some of them, I set them out below, with their related commentary – see June 23, 2021 p 18/37 – 20/16:

(1) First and foremost, the offender clearly abused his position of trust and authority, not once but twice in having sexually assaulted AB, a young vulnerable female employee while acting in his capacity as her employer, all of which, is statutorily aggravating under

Section 718.2(a)(iii). One of those sexual assaults occurred within the confines of the offender’s workplace. [ 133 ] It appears that the appellant takes no issue with this finding.

(2) Second, even though I have already found it to be an aggravating factor that the offender abused his position of trust in relation to AB under the

section referred to, the aggravation does not stop there. Not only must the effect of those sexual assaults on the victim be addressed, the effect on the wider community must also be considered when applying the principles of

Section 718.2. AB had been introduced to the offender and to his professional practice through a program undertaken by a youth organization, which I infer was designed to provide young people with an opportunity to gain work experience by locating an employer in the community who was willing to provide them with an opportunity. That was the case with AB’s employment at the clinic. Not only was Dr. Chander AB’s employer, he should have been her role model but as it turns out, he was anything but. The community expects an employer in Dr.

Chander’s position to act with the highest level of integrity in his interactions with the young employee in these types of circumstances. The community’s confidence in placing its young person with an employer though a youth organization is severely eroded, when a young person is placed in good faith, hired, and then in turn abused by the employer. The community should not be left to wonder about the safety of its young people in these types of circumstances.

I am satisfied I am not double counting against the offender by now focusing on the needs and expectations of the community in finding this to be a separate and distinct aggravating factor in this case. [ 134 ] The appellant submits that this finding amounts to a double counting of factor one which it clearly is not, as the Judge explained. The appellant also submits that he was not in a position of trust to the Airdrie community. But again, the Trial Judge explained his rationale. Nowhere does the appellant identify any errors in the judge’s analysis. I dismiss the appellant’s complaints.

(3) Third, one phase of the assault occurring in the course of the residence allegation involved the offender touching AB in her vaginal area below her clothing. [ 135 ] The appellant submits at paragraph 155 of his Memorandum that “The fact that occurred in his residence (#3) is simply neutral”. The appellant appears to have misunderstood the judge. The judge said “residential allegation” – which references Count 1. In any event, I disagree that the residential locale is neutral. It was the accused’s home.

He had all the privacy, familiarity and comfort that he wanted and needed to commit his crimes therein without risk of detection. The victim was essentially a stranger there. She could have no comfort level or feeling of safety in such an environment.

(4) Fourth, the offender persisted with his advances in the course of the residence allegation, upstairs and then downstairs, despite AB’s repeated demands for him to stop.

(5) Fifth, the offender remained undeterred in his actions towards AB following the events in his residence, despite AB’s insistence for him to stop his advances the night before. The offender persisted by touching her in his vehicle the next day and then after, was sufficiently embolden to have sexually assaulted her a second time while they were along in their workplace. [ 136 ] The appellant argues there is some double counting here, arguing that his persistence was actually “part of the essential elements of the offence” of sexual assault.

With respect, that is simply wrong. “Persistence” is not an element of the crime of sexual assault nor the included crime of assault. [ 137 ] The appellant further submits that, had the judge not again referenced “persistence” in the fifth factor, the appellant would have

been acquitted of Counts 2 and 3. With respect, that makes no sense. The judge wasn’t elevating “persistence” to an element of theoffence. He was merely describing how the accused went about committing his offences. The accused was never deterred by thevictim’s repeated rejection of the accused at the residence. He repeatedly ignored this young woman saying “NO”.

(6) Sixth, the offender’s unflattering comments directed to AB about her physical make-up in the course of events surroundingthe Walmart allegation were degrading, stand as a form of body shaming and I infer would have been emotionally hurtful to AB.Those comments are aggravating, as was his inquiries and inappropriate comments made to AB about her sexual history leadingup to the events surrounding the residence allegation. [138] The appellant submits that his insulting words were simply bad manners. The judge saw it differently and, frankly, so do I.

Itwas demeaning to a young woman who had the temerity to reject her older employer’s sexual overtures. His words were spiteful anddemonstrate perhaps a misogynistic attitude to women who do not favourably respond to his efforts to engage in sexual activity.

(7) Seventh, the effects of these offences on AB as expressed by her in her Victim Impact Statement in their totality have beenprofound and are aggravating under

Section 7.18(a)(iii.1). Emotionally, AB slid from experiencing the pride and excitement ofgetting employment in what she described as her dream job working with animals, to the lows of depression which sheexperienced following the trauma of being sexually assaulted by the offender. She was left distrustful of men and fearful of beingemployed by a male boss. She sought counselling for a lengthy period.

Both her and her mother’s financial situations have been negatively impacted by AB having lost opportunities to regainemployment, leaving her mother needing to offer her support. [139] The appellant says nothing about this in his Memorandum.

Presumably therefore he takes no issue with this finding. [140] I am satisfied that the judge made no errors in identifying these seven aggravating factors. [141] The judge found there were only two mitigating factors – the absence of a prior criminal record and the love and support of theaccused’s wife and family – but the lack of detail as to how that support was manifested, meant that the mitigating effect was minimized. [142] The appellant submits that such a comment “seems rather petty”. What the judge should have said, however, is not provided bythe appellant for consideration.

On the other hand, what additional detail of this familial support could have been provided to then permitthe court to maximize the mitigating effect, was not indicated by the judge. [143] Regardless, most sentencing courts presume that there is some level of familial support for most accuseds.

But such is usuallyrelevant only when rehabilitative sentences are being considered – which isn’t really the situation here. [144] Any deficiency in the Trial Judge’s reasoning here, assuming that it was deficient, would have had little effect on the judge’soverall balancing of aggravating versus mitigating factors. [145] Last, the appellant submits the judge was wrong not to give some mitigating credit for his speedy return from India to deal withthese charges.

The appellant fairly submits that this shows he was cooperative with authorities. [146] The judge dismissed this by saying that the accused had an obligation to attorn to the court’s jurisdiction in a timely fashion. [147] No authority for this proposition is cited by the judge. Nor does the Crown suggest any. Nor am I aware of such an“obligation”. [148] It may be more accurate to say that the accused really had no practical choice but to return to Alberta since this is where hisfamily lived and where he carried on his business.

Thus he had to return to contest criminal charges of which he claimed he was innocent. [149] But still he had a choice. And he chose to return. It was wrong to dismiss his voluntary surrender as not mitigating. [150] That said, this level of cooperation is not akin to an accused who admits most of the case against him or who pleads guilty.

So Iam satisfied that his voluntary return is of some, but little, mitigation. [151] In the result, the record and the judge’s reasons amply support the conclusion that the aggravating factors significantlyoverwhelmed the minor mitigating factors in this case. [152] The appellant notes that the judge considered the case authorities counsel provided. No error is identified in what he said thosecases had determined. The appellant however complains that the judge said little of the authorities which were cited within those cases –notwithstanding trial counsel offered no comments in that regard either.

The appellant also complains that the judge failed to advert tounstated premises in some cases or did not satisfactorily distinguish one of his own previous decisions. [153] These complaints in my view amount to mere quibbling with the judge’s decision. [154] A sentence appeal is governed by the rules expressed in R v M (CA) (1996) (SCC), 105 CCC (3d) 193 (SCC)at paragraph 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [155] I am not satisfied that on the basis of that authority and this record on appeal that I am able to intervene. The appellant has notmet its burden. Accordingly, the appeal seeking to vary the custodial sentence to a conditional sentence is dismissed. The custodialsentence is upheld.

[ 156 ] The appellant turns to the probationary order. One term of that order is challenged. [ 157 ] The impugned condition directs the accused attend “for assessment and participate in and complete any counselling, treatment or programming directed by the probation officer...”. [ 158 ] The appellant submits that condition is illegal without the accused’s consent, relying on R v Shoker , 2006 SCC 44 at para 22 . I agree with the Crown that Shoker does not stand for that proposition. [ 159 ] A probationary condition which directs “treatment” does require an accused’s consent – see s 732.1 (3)(

g) Criminal Code ; R v Proulx , 2000 SCC 5 para 25 ; R v Shoker , 2004 BCCA 643 para 30 . [ 160 ] On the other hand a probationary condition which directs “counselling” does not require the accused’s consent – see R v Duguay , 2019 BCCA 53 para 111 . [ 161 ] At time of sentencing, defence counsel advised that neither he nor his client consented to counselling – see January 23, 2021 p 26/11-13.

Presumably therefore he was consenting, at that time, to everything else. [ 162 ] But before me, appellant’s counsel wishes this entire condition removed due to the absence of consent to its entirety. [ 163 ] I am satisfied that the absence of consent only can go to the “treatment” requirement of the probation condition.

Accordingly, “treatment” is struck from that condition, but the remainder of the condition is upheld. [ 164 ] I next turn to one of the ancillary orders. [ 165 ] Because the accused was convicted of two sex assaults the Trial Judge imposed a lifetime SOIRA order pursuant to s 490.013(2.1) of the Code . [ 166 ] R v Ndhlovu , 2022 SCC 27 , which issued subsequent to the hearing of this appeal, declared s 490.013(2.1) unconstitutional, effective immediately and applied retroactively. S 490.012, which imposes a 10-year SOIRA order, was also declared unconstitutional.

But that declaration is suspended for a year and applies prospectively. [ 167 ] In this case, both counsel have consented to the following order: the SOIRA order which issued in this case is set aside and replaced with a “lesser and included” 10-year SOIRA order pursuant to s 490.012 commencing June 23, 2021. [ 168 ] Apart from the variations to the probationary order and the SOIRA order, the appeal against sentence is dismissed. Heard on the 21 st day of October, 2022. Dated at the City of Calgary, Alberta this 22 nd day of November, 2022. E.C. Wilson J.C.K.B.A.

Appearances: Ron Simenik for the Crown Alias Sanders for the Accused