R. v. Sanmugarajah, 2018 ONCJ 661

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

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) MANDATORY ORDER ON APPLICATION — 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 complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(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. ONTARIO COURT OF JUSTICE CITATION: R. v. Sanmugarajah , 2018 ONCJ 661 DATE: 2018 09 24 COURT FILE No.: 17-769 BETWEEN: HER MAJESTY THE QUEEN — AND — SENTHILKUMARAN SANMUGARAJAH Before Justice A. Dellandrea Heard on April 30, May 1, 2, 3, 4, June 15, 19, September 21, 2018

Reasons for Judgment released on September 24, 2018 Mr. Adam Bernstein............................................................................ counsel for the Crown Mr. David Humphrey................................. counsel for the accused Mr. Sanmugarajah DELLANDREA J.: I. Introduction [ 1 ] Mr. Sanmugarajah is charged with two counts of sexual assault causing bodily harm, contrary to section 272(1) (

c) of the Criminal Code . [ 2 ] The case centers on the issue of consent to sexual activity in the modern, digital age. More precisely, it focuses on the question of whether and how consent to sexual activity can be effectively communicated and received between parties who have never physically met, and whose only exchanges about the terms of their potential physical sexual engagement have taken place online. [ 3 ] It is not disputed that on two occasions, two years apart, Mr. Sanmugarajah used a complicated online ruse to deceive two separate women into having sexual contact with him.

He posed as someone other than who he really was, then took the place of the fictional third party with whom the sexual contact had been brokered, and engaged in a variety of sex acts with each woman. What is disputed is whether the women consented to sexual contact with the accused, whether he exceeded the boundaries of any consent given, or alternatively, whether the nature of his deceit vitiated their consent to sexual activity at the outset. [ 4 ] Mr. Sanmugarajah used the same ruse with each of the two women: first in 2015 then again in 2017.

He created a Craiglist ad in which he purported to be the owner of an adult spa service seeking to hire female applicants to provide full service massages to “high- end” clients. Successful applicants were promised an hourly rate of between $200. and $500., in addition to a signing bonus of up to $1500.

Neither of the complainants who responded to his ad had ever considered working in the erotic escort industry before, until they each found themselves in a situation of financial desperation. [ 5 ] After a lengthy series of online exchanges with the accused, who posed as a variety of persona within the fictional spa organization, each of the complainants ultimately agreed to engage in sexual contact with an out-of-town, ‘VIP’ client, in exchange for the assurance of significant financial payment.

Any of their reservations or concerns as to their safety or payment were met by the accused’s repeated assurances that the spa dealt exclusively with high-end, out of town business clients, and that the business had been in operation for years. They were assured that nothing would be forced.

The accused qua spa owner went on to provide a list of specific sexual activities which the complainants were told to expect during the date with the particular client. [ 6 ] The list of anticipated sexual activities provided to the complainants by the accused included the full spectrum of oral and genital forms of sexual contact, but excluded anal intercourse. In addition, the complainants were advised to expect that the client might suck their breasts “a little hard”, but instructed them not to complain if he did so.

They were told to do what the client asked, and not to complain. [ 7 ] On February 13, 2015, G.C. attended at the spa’s direction at the Super 5 Inn, where she met with the client, who was in fact Mr. Sanmugarajah. The two engaged in a series of sexual acts, during which she says his conduct went beyond those which she had nominally agreed to in her exchanges with the spa. In particular, she says that the accused sucked on and bit her breasts with such force that his actions caused her pain, significant bruising and swelling to her breasts. She told him to stop, and he didn’t.

The Crown alleges that the accused intended to cause bodily harm, and did so, such that there could be no consent. It is also alleged that Mr. Sanmugarajah forced G.C. to continue

an act of prolonged fellatio against her expressed wishes. [ 8 ] Two years later, on January 30 th , 2017, T.A. was directed by the accused to the same Super 5 Inn in Mississauga, where once again the ‘client’ who attended was Mr. Sanmugarajah. The parties engaged in a variety of sexual conduct during which T.A. alleges that the accused bit her breasts without her consent, resulting in bruising. She says that she told him to stop and he didn’t. She also alleges that while engaged in

an act of fellatio, the accused pinned her head with his legs such that she couldn’t move or stop, despite her clear efforts to do so. [ 9 ] Finally, Mr. Sanmugarajah used the same scam to negotiate a meeting with a third woman, who he directed the same hotel, in February of 2017. This woman turned out to be Constable Machado, a member of the Peel Police Vice unit. When he arrived at the hotel on this occasion, Mr. Sanmugarajah was arrested. Positions of the Parties: [ 10 ] The Crown's position is that Mr.

Sanmugarajah is guilty of sexual assault based on three routes of legal liability: “traditional” non-consent, consent vitiated by fraud, and consent vitiated by bodily harm. The Crown argues that the accused’s evidence must be rejected as incapable of belief, or of raising a reasonable doubt as to his guilt for both offences. It is submitted that the evidence of each complainant is compelling, credible, and abundantly establishes the accused’s guilt beyond any reasonable doubt.

Further, the Crown applies to admit the evidence of each complainant in support of the allegations of the other, via a ‘count-to-count’ similar act application.

[ 11 ] Mr. Humphrey argues that in his online exchanges with each of the complainants, Ms. Sanmugarajah sought and obtained the complainants’ valid, advance consent to each of the sexual activities which they engaged in. While Mr. Sanmugarajah’s use of the Craigslist ‘scheme’ to achieve sexual contact with both complainants is admitted, Mr. Humphrey argues that his client’s deception did not rise to the level required by s. 265(3)(

c) to vitiate consent, and render the sexual activity unlawful. He further submits that the Crown’s evidence has failed to establish that the accused both intended and caused bodily harm to either complainant. He submits that the Crown’s similar act application should be dismissed, and that Mr. Sanmugarajah should be acquitted. II. Review of the Evidence

i) Evidence of G.C. Online exchanges with ‘spa’ personnel [ 12 ] In 2015, G.C. was a recent graduate of university faced with a mountain of student debt. She went on Kijiji and then Craigslist looking for bartending jobs, which she discovered to be in short supply. By contrast, there were an abundance of positions being offered in the adult massage and escort business, which offered generous hourly rates. On February 5, 2015, G.C. saw an ad from a ‘spa’ looking to hire applicants to offer massages.

She responded, indicating she was interested in part time work, and wanting to know if the business was really a spa, or an escort service. She initially said she “would not be participate” in escorting. [ 13 ] Mr. Sanmugarajah was the creator of the ad. During his testimony he admitted to having posted a series of near identical ads on Craiglis t, a representative sample of which were entered as exhibits. They read as follows: Willing to make more each day, If your 18 to 35 years, Make B.I.G.

Willing to make more each day, if your 18 to 35 years, Make BIG, only for massage S.P.A., make big amount per hrs Make B.I.G, Make B.I.G., Make B.I.G 1500 Joining Bonus Make B.I.G, Make B.I.G, Make B.I.G. Two thousand five hundred to Five Thousand seven hundred week IF YOU ARE 18-35 YEARS OLD, HAVE A BEAUTIFUL nAPPEARANCE Female only pls [ 14 ] Mr. Sanmugarajah did not actually own or operate either a spa or an escort service.

However in the prolonged series of exchanges which he had with G.C. between February 5 th and February 13 th , he posed as a variety of fictional characters associated with the imaginary spa in order to pretend that he did. [ 15 ] Mr. Sanmugarajah responded to G.C. by asking about her background, her measurements and requesting three photos. He told her their business was located near the Kipling subway, and that they only dealt with VIP clients from USA and Europe, “business clients not working clients.” He told her that she could start the following Monday. Mr.

Sanmugarajah advised G.C. that when VIP clients are offered “a little extra, you will get pay from $250. to $300. hr”. He assured her that it as “100% safe”. [ 16 ] G.C. pointedly asked what services he was referring to. Mr. Sanmugarajah replied “we offer full service”, and increased the offer to $350. to $450. per hour. He asked G.C. to identify her “do’s and don’t’s”. She replied that she was willing to do dates, massages, hand jobs, dominatrix, but not “sex, head, anal”. Mr. Sanmugarajah clarified that “full service” includes intercourse and oral sex.

When G.C. repeated that these are among her “don’ts”, she was reminded of the high hourly wage, and told “we don’t give this to regular walk in clients, only to high end VIP clients, mostly business they don’t stay in Toronto”. G.C. indicated that she will keep that in mind. [ 17 ] After four days, Mr. Sanmugarajah reached out to G.C., stating that they urgently needed help, and were able to increase offer $450. - $550. per hr. G.C. asked what kind of security was offered for visits with VIP clients. She received Mr.

Sanmugarajah’s repeated assurance that “it is 100% safe, we offer this to our high-end clients only, not walk-in clients”. [ 18 ] G.C. clarified: “if I begin working this would include the $1000. from your original offer and $500. per hour, correct?” Mr.

Sanmugarajah replied “yes” and told G.C. that she simply had to send in some pictures of herself to confirm. [ 19 ] Over the course of the following two days, G.C. was directed to submit photos of herself in a variety of poses and outfits, on the basis that “clients pay high we make sure give what they ask for”. [ 20 ] On February 11, 2015, G.C. received correspondence from a number of new ‘characters’ within the supposed spa organization. At 11:15 a.m., Mr. Sanmugarajah wrote to her as “Fabio” a supposed manager, and asked her if she can begin on Friday.

Speaking as “Fabio”, he directed G.C. to convey her final indication of interest to a second manager, “Jennifer” whose email address he provided. G.C. responded to this direction, by sending the following message at 10:15 pm on February 11, 2015: Jennifer, I’m not sure who I was speaking to, I believe it was two men, one I know for sure was Fabio, however it’s been a constant back and forth with the same information being passed and it’s highly frustrating. I’m not sure what’s wrong with the email on Craigslist but they keep voicing that I am not replying back when I am.

Now they keep asking me to start on Friday, and state that you guys are very busy

however they have not fully explained the system to me besides the fact that these are VIP clients you deal with who are of the upper class, and apparently that you don’t provide security. I’ve told them I am available on Friday, however they keep changing the price we had confirmed which was $500 per hour as well as the additional $1000 for beginning. If you would like someone to the the Friday and you are interested in hiring me please contact me at this email, I will gladly reply back.

G. [ 21 ] For the remainder of his exchanges with G.C., between 10:41 p.m. on February 11, 2015, leading up to the moment of his physical encounter with her as the ‘client’ on February 13, 2015, Mr. Sanmugarajah corresponded with G.C. exclusively through the email address associated to the fictional manager, ‘Jennifer Lawrence ’. [ 22 ] ‘Jennifer’ confirmed that G.C. would be paid the $500. hourly rate, in cash.

Jennifer indicated that the clients pay in advance through PayPal and that after each client G.C. would get paid by her directly. [ 23 ] At 12:04 a.m. on February 12, 2015, ‘Jennifer’ told G.C. that they have a “high end client from magna, Vice President of the company regular client coming from the USA”. She adds that he comes every 4 to 6 months and that he is a “very nice client”. G.C. is advised that in order for her to be booked with this client she needs to look like a “doll”, as the client likes girls who model, are hairless, and have an “office girl look”.

G.C. was directed to submit photos from her wardrobe for Jennifer’s approval, and instructed to straighten her hair, according to the client’s preference. [ 24 ] Jennifer told G.C. the location where she would be meeting this client, who had make a booking for four hours, with the potential for a second day “if he likes” her.

G.C. was advised that the room would be booked under her name, and that she would need to provide a credit card to secure the room. [ 25 ] Jennifer told G.C. on a number of occasions that she would see her personally on the day of the anticipated date, in order to pay her in cash, take her for lunch, and drop her home. G.C. sought confirmation that since she was booked for 4 hours she would be receiving a total of $3000. Jennifer confirmed the payment for the first date, and added that there might be potential for a second one, but only after a break during which Jennifer would come and “see how [she] felt”.

Jennifer asked G.C. for the make, model and colour of her vehicle, and told her that after the first client left, she would meet G.C. beside her car. [ 26 ] G.C. was instructed not to ask the client how much he paid, or any personal information. [ 27 ] G.C. asked Jennifer “what is exactly is my routine” for the meeting with the client.

She received the following response, on February 12 th at 9:41 p.m.: This is what you will be expecting tomorrow, your name is Michele, soon he come inside pls hugging and start give him French kissing to show how friendly your, you will expecting all this today, no rush, French kissing, hugging, Kissing your whole body by tongue if the clients like to, Blow job without condom, kissing with tongue, cum on body, sexy shower, ball licking and sucking, rim job, kkissing or sucking boobs and licking Virgina, have sex many time.

I don’t like getting complain from this vip clients even they did suck your boops or you lips little hard just be patients end of day will pay little tips or book you for next day as well. If any marks on your boobs it’s ok I have a spray it will be gone in 10 min. When you with clients turn your cell either off or silent, don’t play with cell, they don’t like it, and try to turn your self into sex real mood. After he leave let Me know. I will come down to get feed back from you, and pay, let’s go to lunch. 2) pls don’t ask clients how much he pay us, or any personal info.

We know we have told, just to make sure. 3) i know this client very well, he stay with so many our girls many time, he may ask you to take shower every 1 hr or so take shower make sure put make up, perfume, fresh breath and every time need to look like a doll, and perfume as well.

Change the dress & make up in the washroom. 4) if clients like to leave early, its ok let, This specific client only leave early if he doesn’t like your attaute or You not doing what he ask to do, otherwise he will stay full hrs, if he like to keep you for 1 or 2 hrs extra it’s fine, he paid 2 days, try to keep him to say more hrs possible, this way we all can make $$$ and may keep you for until he need it, and will all ways book the same girl next day as well. [ 28 ] After receiving these instructions, G.C. indicates she is concerned with the risk of contracting a sexually transmitted infection from performing oral sex without a condom.

Jennifer responds with the assurance that clients are “high end, they are clean, we been doing this business last 15 years”. [ 29 ] On the morning of the meeting, G.C. discovered that the hotel room had not been paid for, so she was required to put her own credit card down for $60. or $80. She texted Jennifer the room number. Jennifer told G.C. that the client, whose name is John, was 10 minutes away.

Jennifer transmitted the following list of final instructions: Make sure you don’t take too much time in shower, all you have to do quick shower clean your vagina, and after shower you should look doll all that time, smells good even Virginia he may go down. Use the gum to freshen up breath. Pls be friendly give him what he need, he’s very nice person, he like girl like porn movie star, so you need to call him babe, and say like, I like it babe, or kiss me, suck my boobs, harder, and romantic oral, and sex, just give him what he need. The reason why we saying all this don’t like complain.

Don’t spit on the bed, he doesn’t like it. He’s coming up, turn the cell off or silent, remember 4 hours, he can stay extra 2 hrs if he like it, try to make him stay more pls. Good luck!!!!! [ 30 ] G.C.’s final reply to Jennifer was: “I don’t swallow cum just letting you know. I will do all of that.” G.C. testified that at this point she was getting fed up, because they were telling her everything she had to do, and she felt she “had no rights in it.”

Meeting with the ‘client’ – Mr. Sanmugarajah [ 31 ] Mr. Sanmugarajah arrived at the hotel room. He carried a plastic bag containing a box of condoms, and orange juice. He told G.C. that he lived in New York, and had recently been travelling for business to Asia. [ 32 ] Mr. Sanmugarajah told G.C. that he was “good friends” with the spa managers, and was happy that they had “hooked him up” with her for the few days he was in town. He disrobed and moved her to the bed. [ 33 ] When G.C. removed her blouse and bra, Mr .Sanmugarajah immediately began sucking on her breasts, and her neck.

She testified that she told him “you’re going to give me hickeys, don’t do that”. She explained that she didn’t want any visible marks on her body that her mother might see. She described the degree of force of the accused’s sucking of her neck and breasts at this point to be “moderate”. [ 34 ] They proceeded to have intercourse for approximately 10 minutes. Mr. Sanmugarajah ejaculated. G.C. got up and went to the washroom to change, as she had been told by ‘Jennifer’ to change her outfits frequently. She put on a new bra and panties and returned to bed. Mr.

Sanmugarajah began sucking and biting her breasts with moderate force, which she could initially deal with. However she testified that then bit her shoulder “really hard”. She had not asked him to do this, but ignored it. [ 35 ] Mr. Sanmugarajah told her to perform oral sex. When G.C. positioned herself on the edge of the bed and began to do so, the accused put his legs over her shoulders and pushed her down so that she couldn’t move.

She testified that he pushed her head down toward his penis with his hands, and that when she tried to pull her head back to avoid gagging, he used his legs which were over her shoulders to push her back down. She was told to lick him under his testicles. Upon doing so, Mr. Sanmugarajah used his knees to clamp her head in place so she couldn’t move. She testified that if felt like a head-lock, and that it was very painful. If she stopped licking, he would squeeze his legs against her head even harder, until she continued. [ 36 ] G.C. returned her mouth to Mr. Sanmugarajah’s penis.

When G.C. realized the accused was about to ejaculate, she tried to pull back, but couldn’t because his legs were still over her shoulders and his knees were pinning her head. He ejaculated into her mouth, then held her there for 30-60 seconds before he let go of his legs. G.C. ran to the sink and spat out his ejaculate. [ 37 ] G.C. testified that she thought about leaving at this point, but realized that her clothes were across the room and she didn’t want to run into the hallway naked. Mr. Sanmugarajah pulled her back down onto the bed and once he started to suck her breasts, this time with a greater intensity.

She described it as “really, really intense and hard” to the point that he was biting down, clamping and gnawing, or almost grinding his teeth on her breasts. She testified that she told him to stop, but he didn’t. This persisted for about 10 minutes, until the pain reached a point that she could feel tears in her eyes. [ 38 ] G.C. testified that Mr. Sanmugarajah didn’t say anything as he was doing this, rather he just held her tightly and was “just gnawing and biting”. She said he seemed to be “getting off on it,” and it was like he was hypnotized.

She estimates that she was held by the accused in this position for at least an hour. At times it seemed to her that he was sleeping, but the moment she moved to try to wiggle out, he would open his eyes and start biting her breasts again. She testified that she repeatedly asked him to stop. First she repeated the word “stop,” then later she said “please stop”, and finally she just started saying “please”. If she made any sound, such as moaning in pain, he would bite harder. G.C. said when she realized he wasn’t stopping, she tried to just lay still and wait for it to end. Eventually Mr.

Sanmugarajah stopped, and got up to go to the washroom. She said she lay there in shock. [ 39 ] When Mr. Sanmugarajah returned from the washroom she told him his time was up. While he dressed, he asked if he would be seeing her the following day, and she said yes, in order to get him out of the room. As he left, Mr. Sanmugarajah told G.C. he would set up their next visit through Jennifer or Fabio. She testified that she had no intention of seeing him the next day, but considered luring him back for a second meeting to that she could call the police to catch him.

She testified that what he had done to her was so extreme and wrong that she didn’t want it to happen to anyone else. She testified that he didn’t leave any money before he left, and that even if he had, the money wouldn’t “make up for what had happened”. [ 40 ] G.C. testified that when she walked into the bathroom and saw herself in the mirror, she was shocked. Her breasts and nipples were bruised and appeared twice their usual size. Her neck and shoulders had what appeared to be bite marks on them. The marks were dark red, “past a hickey”, around her breasts in a half-moon shape, “tracing where he had been”.

Her nipples were bleeding. [ 41 ] G.C. got dressed and went to her car. At 3:21 p.m. she texted Jennifer, whom she was expecting to be there, to advise that she was done. Jennifer replied that she was coming from Oshawa and would be 40 minutes late. She told G.C. to check out and come meet her at a Tim Horton’s. G.C. replied: “I’ll be there.

And I hope you have that spray”. [ 42 ] After over an hour of waiting, G.C. received the following message from the email account of “gtaspasensationspa_adult2014_2045@outlook.com”: HEY DEAR THERS BEEN A PROBLEM JENNIFER GOT INTO ACCIDENT 401, CANT’ VERY BAD CONDITOINS, NO PULSE, THE AMBULANCE TAKING HER TO HOSPITAL. NO ONE WILL AVAILABLE, YOUR NEXT APT CANCELLED TODAY ONLY . FABIO WILL MEE YOU CLOSE TO YOUR HOME TODAY AFTER 4 HRS. TO PAY YOU! SORRY DEAR !!

JUST C/OUT, LET US KNOW WHEN REACH HOME, AND YOUR ADDRESS, OR ANY TIM HORTON OR STARBUCKS HE CAN MEET YOU CLOSE TO YOUR HOME. [ 43 ] G.C. replied, and directed Fabio to a restaurant at Highway #7 and Leslie. No one attended. She sent a message directing them to another location in 30 minutes. Again there was no reply.

G.C. testified that her purpose in attempting to meet up with the spa management after the incident was not only to get paid, but also “to figure out who exactly I was in the room with and to tell them what happened.” [ 44 ] Finally, the next morning, she sent a message indicating that she believed she had another appointment with “John” that day however she needed to know the hotel name and address. No response ever came. G.C. testified that she sent this last message hoping to

set up a time and place so that she could tell the police where to go to find the man. G.C. ’s injuries [ 45 ] The day after the incident, G.C. took five photos of her neck, shoulder and breast area. The images were entered as exhibits. G.C. testified that prior to taking the photos, she had applied foundation to the bruises to her neck area in an effort to conceal them.

The images depict dark red, purplish marks to G.C.’s left shoulder, left and right upper neck, and over two large areas on both her left and right breasts, encircling the nipple area. [ 46 ] G.C. testified that her breasts were very swollen and painful following the incident. Her nipples were discharging pus and bleeding from the area of her nipple rings, which she testified that Mr. Sanmugarajah had torn with his teeth. For some time, G.C. found it too painful to wear a bra, and had to wear loose clothing so that nothing touched her breasts. [ 47 ] The following week, G.C. went her physician, Dr.

Dulay, for an examination. G.C. told her doctor that her injuries were the result of unwanted rough sex with a boyfriend. In her report, Dr. Dulay noted yellowing bruising around G.C.’s breasts, as well as an apparent tear of less than one cm to the area of the right nipple. There was discharge from this area which was indicative of an infection. The doctor noted G.C.’s complaint of pain to her neck, breast and back, as well as tenderness in the armpit area. Dr. Dulay prescribed an antibiotic for the infection to G.C.’s breast. G.C. was seen again by Dr. Dulay ten days after the event, on February 23 rd .

G.C. reported to Dr. Dulay that her pain had worsened over the week since the first examination, despite the use of antibiotics. By February 23 rd , the bruising was observed by Dr. Dulay to have resolved, and no further discharge was noted at the nipple area. G.C. still had some tenderness to her underarms. G.C. testified that it was “probably a month and a half” before she started feeling comfortable again, even after the swelling had gone down. G.C.’s position on consent [ 48 ] When asked by the Crown what she had consented to and with whom, there following were G.C.’s responses: Q.

What were you consenting to? A: I don’t feel like I was consenting to any of it, ‘cause at first I didn’t’ even, I didn’t even want to have sex, I just wanted to like give a massage and then all of a sudden I was messaging this person on my personal email and they had my email and they were telling me this is what they expected. And then I felt like I couldn’t back out, because they had my personal email and then I thought, okay, fine, then, since they have my personal email and they can track me down I’ll just have sex with him and that’s it, at most. But I didn’t want to and I didn’t want to go that day.

I just felt like I didn’t have a choice. … Q. who did you think that you were engaging in sexual relations with? A. A guy that just wanted sex. Q. and which guy? A. I don’t know. Some guy from – who worked for Magna, who lived in New York, who was a CEO of a company; who’d be like a decent man, hopefully. Q: if you knew that the person who was showing up at your door, the hotel, was actually the author, the person who wrote those emails to you, would you have agreed to engage in this activity?

A: no. [ 49 ] In cross-examination, it was suggested to G.C. that it was clear from her communications with Jennifer that she understood that she was agreeing not just to intercourse, but to “all those other things listed”. G.C. replied “if I was ok with them”. After reading the portion about breast-sucking, potential marks and the “special spray”, G.C. admitted that she expected there might be some marks to her breasts as a result if the interaction, but she maintained that what she expected was only “hickeys”, which to her meant areas of redness that might last a few hours or a day or two.

She was adamant that she never asked him to suck her boobs “harder,” as had been suggested in the email, but rather that she had asked him to stop several times. [ 50 ] G.C. did not deny having agreed, in the emails with Jennifer, to have sex with the man who came to her room. She agreed that he was a stranger, whose race and appearance she knew nothing about, and which were unimportant to her. Neither did she know, or care to know his name. She said she did care, however, what he did for a living. This factor, to her, related to her assurance of getting paid, and of being safe.

She said “they said that they were business people and I assume they’d be ok people.” ii) Evidence of T.A. Online exchanges with ‘spa’ personnel [ 51 ] T.A. is a 29 year old woman who immigrated to Canada in 2014 from Bangladesh. She is married, with two children. In late 2016, early 2017, her husband was on a disability pension, and the primary responsibility for earning the family income fell to her. Their financial situation was desperate.

In addition to supporting her own family, T.A. was also responsible for sending money each month to her mother in Bangladesh, who was at risk of eviction from her home. [ 52 ] On December 28, 2016, T.A. turned to online classifieds looking for work. She came upon Mr. Sanmugarajah’s job advertisement for massage therapy. She inquired about more details and indicated she was available right away. Mr. Sanmugarajah

replied the same day, inviting her to send pictures, measurements and work history. T.A. admitted she had no related work experience, but that she needed “urgent money”. She assumed at this point that the business was at some type of office, where clients came to get massages. [ 53 ] The next message to T.A. came from “Steve”, the manager. He provided his cell phone number and clarified that they offer “full service” to their VIP clients. T.A. told him she wasn’t interested.

A few days later, Steve called T.A. and explained that they were overbooked because of the approaching New Year, and as a result, were increasing the hourly rate to $500. per hour. [ 54 ] A few days later, T.A. was contacted by “Lisa”, who requested that she send in pictures immediately. Lisa assured T.A. that they served business and corporate clients only, who were non – Canadian. T.A. submitted a series of photos, and eventually, on January 2, 2017, indicated she was prepared to work.

From this point on, T.A.’s discussions with Steve were a mixture of both emails and phone calls. [ 55 ] T.A. was told that she would need to attend a hotel to meet a client, and needed to bring her own credit card to book the room, for which she would be reimbursed. T.A. was directed on what to wear and how to appear to the client. T.A. asked what would happen if a client wasn’t satisfied with her, and whether she would still get paid. She explained that she was inexperienced, was still “confused about the client and what they will ask from me”.

She expressed concern based on what she had seen in movies, where men hit women or force sex. The accused assured her that she would be paid, and told her that this is what she should expect from clients: GFE is a type of service we give our clients includes, NO RUSH, French kissing, hugging, kissing your whole body by tongue if the clients like to, Blow job without condom, kissing with tongue, cum on body, sexy shower, ball licking and sucking, fingering kkissing or sucking boobs and licking puzzy, Have sex many time…LET US KNOW YOU OK WITH THIS SERVICE.

We don’t like getting complain from this vip clients even they did suck your boops or you lips a little hard just be patients end of the day will pay little tips or book you for next day as well. We guaranteed if you do we’ll you you will be booked for next days. [ 56 ] T.A. responded that she was fine with the list, and asked how many hours she had been booked for the following day. She was told she was booked for 4 hours with the first client, 1.5 hours with the second and 1.5 with a third. T.A. testified that Steve had told her nothing would be forced, and assured her about the sort of person the client was.

She was told: Okay. He’s from America. The – he told me by phone that he’s coming from America and he’s the boss for one company in America – like he’s the owner, one company. He have one company in America and he’s very gentle and nice person and he’s the regular client and they have lots of staff, like other lady still with him, and he’s very nice guy. He told me this information about him, like he’s coming from America.

That’s why they put Mississauga, because when I told him I don’t know, it’s very far from my home, they said said no, the client is coming – landing from airport, so Mississauga – from the airport to Mississauga it’s very close. That’s why they gave me close address. [ 57 ] T.A. said she never thought that any violence or problem could happen, because she was “trusting every word. Whatever they told me, I trusted them” [ 58 ] T.A. assumed that the reference to the client potentially sucking her breasts a “little hard” meant just that: a little. Sexual Encounter with the ‘client’ – Mr.

Sanmugarajah [ 59 ] On January 3, 2017, T.A. left home at 8:30 a.m. for the hotel, which was over an hour away. Initially Steve had told her that he would be meeting her in the lobby to pay for the room, but as she got off the subway he called to tell her he was running late, so she would have to pay for the room herself. She was instructed to check in, pay for the room, and not ask any questions of the client. She checked into the room as instructed. At 11:13 a.m. she received a message from Steve that the client, named John was on his way to the room.

She was instructed to turn her cellphone off and told that he (Steve) would be there to meet her after the client left. He wished her good luck. [ 60 ] Just after 11:13 a.m., Mr. Sanmugarajah. He was wearing a black hat, and carrying a shopping bag containing orange juice. He entered the room, asked her for her name, then disrobed. He told her to do the same. Mr. Sanmugarajah lay on the bed and directed T.A. to perform fellatio on him. She did so for about 5-10 minutes, then he removed her bra and underwear. Their positions changed when Mr.

Sanmugarajah pulled T.A. on top of him and they began to have intercourse. He was holding her tightly, but she didn’t feel like she was being forced. She testified that during intercourse, Mr. Sanmugarajah used a flat or closed hand to strike her in the buttocks several times. She had not given him permission to do this. [ 61 ] During acts of intercourse, Mr. Sanmugarajah bit T.A.’s breasts very hard. She could not recall if this happened more than once. She estimates he did this for 5 to 15 minutes. She made a sound, like she got hurt, when she was bitten.

She used the word ‘bite’ to describe what he did because “there were teeth involved.” T.A. testified that during the conversations she had with Steve, there was never any suggestion of the client biting her breasts hard. Steve had said there would be no “forcing”. The client ever asked if he could bite her. [ 62 ] T.A. described Mr. Sanmugarajah’s demeanour through the majority of their sexual encounter as “robotic”. He mostly gave her instructions and she had to follow, as a result of her exchanges with the company by email. She testified: Like, I was not comfortable.

But like, already I am inside the room and he’s inside the room and I was agree with the company. I was agree with the company by mail – by email that, okay, whatever like – this is can happen, so I just keep myself silence and whatever he told me I do. [ 63 ] After intercourse, Mr. Sanmugarajah sat on the sofa and directed her to perform oral sex while kneeling in front of him. T.A. testified that this was the beginning of when the accused started really “forcing” her. After approximately 15 to 20 minutes of fellatio, she tried to take a break by pulling her head back.

When she did, he used his hands to push the back of her head back down onto his penis. Her throat and mouth were hurting, as were her knees. T.A. testified that she told him to stop, but he didn’t.

[ 64 ] Mr. Sanmugarajah moved to the bed, and directed T.A. to come there and continue. T.A. said when she got onto the bed, the accused put his two legs over her shoulders, and squeezed them on either side of her head to hold her in place. She couldn’t move her head, and struggled to breathe. He used his hands to pull her hair and to push her mouth onto his penis. She tried to push away, but couldn’t, as her hands were also constrained near the area of his genitals by the pressure which the accused was applying with his legs to her head and shoulders. T.A. described this activity as “a hundred percent” forced.

T.A. estimated that the oral sex continued like this for at least another 30 minutes. The accused was holding her face and shoulders in place with his legs. She testified that she tried two or three times to tell him to stop, by slapping or pushing against his belly, and by getting out the word “stop”. She testified that Mr. Sanmugarajah didn’t listen or stop. He ejaculated into her mouth, and T.A. vomited onto the bed. [ 65 ] After the accused ejaculated, he got up to shower. He told T.A. to come with him into the bathroom, and had her stand outside the shower while he bathed.

After he was finished showering, the accused got dressed. T.A. did as well. Mr. Sanmugarajah asked T.A. if it was her first time. She told him that it was, and elaborated on her previous employment experience, and current financial crisis. The accused put a $5.00 bill on the table, told her not to call the spa right away, and left. [ 66 ] T.A. showered, then called Steve. There was no answer. Within a few minutes, at 1:45 p.m., she received the following email: HEY DEAR THERS A PROBLEM MANAGER GOT IN TO ACCIDENT 427 Hwy, CANT VERY BAD CONDITIONS, NO PULSE, THE AMBULANCE TAKING HER TO HOSPITAL.

NO ONE WILL AVAILABLE, YOUR NEXT APT CANCELLED TODAY ONLY. TONIGHT SOMEONE WILL MEET YOU CLOSE TO YOUR HOME? TODAY AFTER 6 pm, TO PAY YOU! SORRY DEAR!! AFTER THIS CLIENT LEAVE, SORRY DEAR!! LET US KNOW WHERE TO MEET, MAIN INTERSECTION..OR ANY TIM HORTONS, MACDONALD CLOSER TO YOUR HOME. [ 67 ] T.A. testified that after receiving this email she started to realize that maybe this man might be the same person as who she had been dealing with. Over the next several hours and the following day, she attempted to reach Steve by both email and phone.

She did not want her husband find out what she had done and she was angry that she had been manipulated and had not been paid. When she spoke to the accused on the evening of January 4 th , she told him that she had taken a photo of the marks to her breast, which she threatened to show to the police. She testified that he told her he was not going to pay, that she couldn’t do anything about it. [ 68 ] On January 4 th , T.A. called 9-1-1 and reported the incident to police. She was interviewed by police and directed to obtain medical attention the following day, which she received.

T.A.’s injuries [ 69 ] On the day after the incident, T.A. took one photo with her cellphone camera of one of her breasts, in an effort to capture the red markings which she testified were caused when the accused bit her breast in the hotel room. This image was entered as an exhibit. T.A. stated that she took two extra-strength Tylenol to address her pain from that injury. [ 70 ] On January 4, 2017, T.A. was examined by Ms. J. Keeler of Trillium Hospital. Ms. Keeler is a very experienced Nurse Practitioner who specializes in conducting examinations of individuals who may have suffered physical or sexual abuse.

The physical examination form documenting Ms. Keeler’s observations was introduced as an exhibit. During her examination of T.A., Ms. Keeler noted three areas of discolouration. One small area of faint blue colour and non-defined margins on T.A.’s upper chest, and two slightly larger areas of red and purple bruising on lower portion of her right breast, which T.A. described as painful. Ms.

Keeler also noted that T.A. reported some pain and stiffness in her neck, as well as her lower back and buttocks, however these areas were without marks or bruising. [ 71 ] T.A. testified that even after she reported the incident to police, she still didn’t want her husband to be aware of what had happened. She testified that she gave Constable Machado whatever emails she had between herself and the spa. She told the officer that she had deleted some of the emails, because she was afraid her husband might discover them in on her laptop.

She also told them that after the event she had some back and forth with ‘Steve’ about having been scammed. [ 72 ] In cross-examination, T.A. was challenged to explain which emails she deleted, and why. She testified that in order to conceal the emails from her husband, she immediately deleted emails from her inbox, which she understood would remain in her trash box. She testified that after the incident she double deleted all of the communications with the spa.

She explained that she did this extra step to ensure that her husband would not find the emails, and because she was upset and afraid by what had happened. [ 73 ] Mr. Humphrey produced a series of emails exchanged between Mr. Sanmugarajah and T.A. between his departure from the hotel room on January 3 rd and January 4 th , 2017. None of these communications had been provided by T.A. to the police during her interview, as she had “double-deleted” and failed to mention them. It is clear from these exchanges that at the time they were written, T.A. had come to an awareness that she had been cheated by the spa.

She threatened to go to the police unless she got paid, told them that she would show her “body mark” and would “complain that you guys force me”. She said they would be in ‘big trouble” if they didn’t pay right away. T.A. also wrote: • Don’t think u can escape from me I already talk with hotel manager they hv cctv camera. So it’s easy to get ur pic from there. And with ur email n phn no. they can trak ur location. If u don’t pay me today u will loose u will be in big trouble.

I borrow money from my neaibour to pay hotel bill and now u r making a story with me • …I took the loan to pay for the room, I will not leave it simply, anyhow I will get my money back, I don’t care whatever I hv to do for this I will do, I want money • Keep ready ur mother and daughter and sister for tomorrow to fuck by police

• Police ask me to go to Mississauga hospital to do test. U hit me at hotel room I will not leave u simply. I don’t want u do same things with other girls. [ 74 ] T.A. agreed that she didn’t specifically tell the police that she had double-deleted the emails that she had with the spa in which she threatened to report them and used aggressive expletives after the incident. She acknowledged that she was upset, nervous and angry when she wrote these messages. [ 75 ] T.A. agreed Mr. Humphrey’s suggestion that if she had been paid the money she was owed, she would not have gone to the police.

She maintained that she what she was referencing in these emails, to having been forced, was true. T.A.’s position on consent [ 76 ] T.A. testified that until she got the email following the incident, she was sure that the client was the business man from America, who had just come from his flight. She said whatever she was told in the email, she trusted. In cross-examination, T.A. agreed that she didn’t care what the client’s name was or what he looked like, but as to what he did for a living, she testified they had already made clear to her that he was a vice-president from America.

When T.A. heard the accused’s voice in the hotel room, the thought did occur to her that there was a possibility he could have been the same man she had spoken to at the spa about setting up the date. She testified that when he arrived at the room wearing the clothes and hat which the spa had described as those worn by the “VIP” from America, she trusted that it must be him. She did not ask any questions of the client, because she had been firmly told not to do so. [ 77 ] T.A. accepted the possibility that the second and third clients which she had been told were booked for later that day were from Mississauga.

Later in her evidence she repeated that “[t]hey told me they are non – like non-Canadian. That’s why I agree”. She went on to explain that she did not want the risk of running into clients while in the community with her family. [ 78 ] T.A. said if she had known that the man who came to the hotel room was the person who had set her up with all of the emails, she would have taken her bag and walked out, even if he had offered her $5000, because, as she put it “he’s lying for everything”. iii) Evidence of the accused Senthilkumaran Sanmugarajah [ 79 ] Mr. Sanmugarajah came to Canada from Sri Lanka in 1993.

He is 41 years of age, married, and the father to two boys. At the time of the allegations, he was working mostly from home as a real-estate and mortgage broker. [ 80 ] Mr. Sanmugarajah admitted to having created and posted the ads which were entered into exhibits, as well as to having been the author of all of the communications on behalf of the purported spa with both G.C. and T.A. Creation of the Craigslist Ads [ 81 ] He testified that he initially went to Craiglist in late 2014 to post ads in relation to his real estate and mortgage business.

While there, he noticed that there were also chat rooms, where a lot of people were talking about financial issues. He entered and perused these financial chat rooms. He said that somehow he got into another chat room related to sex. [ 82 ] Mr. Sanmugarajah stated that once in this second ‘sex’ chat room, he heard another user talking about creating a fictional “full service” spa for eight years, using many characters, and then taking the place of the client to have sex with the women.

He scrolled back and read a thread of messages in this chat room, which he claims detailed the purported methodology for this elaborate ruse. Mr. Sanmugarajah testified that he can’t remember the name of the chat room, and didn’t save any of the logs.

Instead, he simply copied and pasted the wording that he needed from the chat room into a notepad on his cellphone. [ 83 ] The accused testified that the suggested payment method for this ‘scheme’ was to offer the prospective employees $500. - $600. per hour to get them “to come in”, but then to pay them only $40. to $80. per hour. [ 84 ] In addition to the promise of hugely inflated hourly rates, Mr. Sanmugarajah testified that his purpose in telling the women that there were multiple clients booked in the days to follow was to give them the impression of ongoing work. [ 85 ] Mr.

Sanmugarajah said that he started running these ads right after reading about them, in late 2014. His intention was to give the appearance that there was an actual organization, or business, for which he would then play a variety of fictional roles within the management. The accused admitted that his objective in posting the ads was to have sex with the women who responded.

He testified that he did all of this to avoid having to go to a prostitute and risk contracting a sexually transmitted infection. [ 86 ] He admitted that numerous references to “VIP clients” in his exchanges with both women were designed to impress the women, to encourage them to sign on to the spa position, and make them believe they were going to be treated well. Mr. Sanmugarajah acknowledged that the many references to the clients as being businessmen from America and Europe was intended to make the women more comfortable, safe and more likely to participate. [ 87 ] Mr. Sanmugarajah agreed with Mr.

Bernstein’s suggestion that he didn’t want the women to think that the person coming to see them was a working man from their local community. He also agreed that he didn’t want them to think the client was an unsuccessful real estate agent, such as himself. Finally, Mr. Sanmugarajah agreed that he knew neither G.C. nor T.A. was going to have sex with him – the real Mr.

Sanmugarajah – so he had to pretend to be someone else. [ 88 ] Similarly, he acknowledged that the use of multiple spa persona, including two female characters, was aimed at making them believe that the spa was “legitimate”, and also safe. [ 89 ] His request for photos from both complainants was aimed at determining if he was attracted to them. His directions to both G.C. and T.A. with respect to how to dress, style their hair and groom themselves were a reflection of his own sexual preferences.

[ 90 ] Mr. Sanmugarajah chose the Super 5 Hotel at Dixie and Dundas as the meeting place with both women, because he wanted to stay far away from where he lived, so his wife wouldn’t find out. [ 91 ] Mr. Sanmugarajah testified that he provided the women with the list of anticipated sexual activities so that the women would “know what to expect”. He acknowledged that he tailored the list to suit his sexual interests, in particular, his enjoyment of “boob sucking” which could potentially leave a mark.

He stated that the idea of a “special spray” to erase possible marks was not his own, but was one of the other ideas he had borrowed from the chat room. [ 92 ] Mr. Sanmugarajah admitted that his instructions to G.C. in the subsequent emails to say a variety of things to the client, including “suck my boobs harder” were his own suggestions. He said these words and actions would turn him on. Interaction with G.C. [ 93 ] Mr. Sanmugarajah testified that all of the sexual conduct between himself and G.C. was completely relaxed and consensual.

He said she never expressed her withdrawal of consent with any word or gesture. He interpreted G.C.’s response to his last email before their encounter in which she said “I don’t swallow cum, just letting you know, I will do all of that” as her expression of consent to everything except swallowing semen. [ 94 ] Mr. Sanmugarajah described his interaction with G.C. as involving three alternating sessions of fellatio and intercourse. He testified that in between these acts she showered once, and he twice. He said they watched television together and chatted a few times.

He could not recall the details of these chats, beyond her asking him about New York City and her taking courses. During the episodes of intercourse he testified he sucked G.C.’s breasts several times. [ 95 ] With respect to G.C.’s breasts, he admitted to “really hard sucking”, but denied ever biting them. After sucking her breasts he said he noticed “little hickey marks”. [ 96 ] With respect to oral sex, Mr. Sanmugarajah denied ever putting his legs over G.C.’s shoulders, pinning her head with his knees, or forcing her mouth to remain on his penis in any way.

He said that during the multiple incidents of fellatio, he was lying on the bed with his legs “open”. He said he did not ejaculate in her mouth. [ 97 ] Mr. Sanmugarajah testified that at no point during their sexual interaction did G.C. ever say stop, or appear to be unwilling to participate.

When asked what his belief was as to her consent, he testified that he could “feel it”, because during intercourse she indicated she was about to climax, and he felt that she wanted it to go on. [ 98 ] After the sex was over, Mr .Sanmugarajah testified that he retrieved $175. which he had rolled up in thread and secreted in a small hole in the liner of his suit jacket. He said he hugged G.C., kissed her, and gave her the money. He said this technique for concealing money from prostitutes was one which he had heard of in the chat room, which warned against the potential for theft. [ 99 ] Mr.

Sanmugarajah testified the email which he sent to G.C. at 4:43 p.m. indicating that Jennifer had been in an accident on the 401 and had “no pulse” was a script which he had “exactly copied” from the chat room and sent because this is what he was told to do on Craiglist . He explained that the purpose in sending this was to discourage G.C. from complaining about not being paid in full. The message was designed to maintain the ruse for a while before cutting her off. Interaction with T.A. [ 100 ] Mr.

Sanmugarajah admitted to following the same ‘script’ which he had used with G.C. to entice T.A. into accepting the same fictional offer of employment. He acknowledged that when T.A. initially expressed her disinterest in working as an escort, he responded by increasing the promised hourly rate, to entice her to agree. He acknowledged that these increases in the promised price were immaterial to him, because he had no intention of ever paying her such a generous rate. [ 101 ] As with G.C., Mr.

Sanmugarajah testified that having sent the ‘laundry list’ of sexual expectations to T.A. in advance, and received her response that she was willing, he believed that he had consent to do the things outlined in the emails. This included the potential for sucking her breasts “a little hard” and the potential for marks to be left on her breasts. [ 102 ] Mr. Sanmugarajah acknowledged that he did suck T.A.’s breasts “hard” but maintains that he never bit them. He testified that she never said the word ‘stop’, or otherwise conveyed any unwillingness or pain.

He said he received fellatio from T.A. three times, but that on each occasion (one on the couch, two on the bed) his legs were in an “open” position. [ 103 ] Mr. Sanmugarajah denied ever positioning himself in the manner described by T.A., with his legs over her shoulders, and knees pinning her head while she performed oral sex. According to him, he was unable to sustain an erection during the last episode of fellatio, so he decided to just end it by getting up and taking a shower. He testified that he never forced her head down onto his penis, or ejaculated in her mouth.

He denied seeing T.A. vomit onto the bed. [ 104 ] After the final act of fellatio, the accused says they both got dressed, he retrieved $300. from inside the lining of his coat, gave it to T.A., said goodbye and left. He acknowledges sending the same dramatic message about the manager having been in a near-fatal car accident to T.A. as the continuation of what he called his “runaround” script. He acknowledged exchanging additional messages with T.A. through January 3 rd and 4 th , 2017, in which her demands for payment and threats to report him to the police are conveyed. Patricia Perez, aka.

Constable Carla Machado [ 105 ] Mr. Sanmugarajah admitted that he continued running his ads after his dealings with T.A. on January 3 rd , 2017. On January 10 th , he received an expression of interest from a woman who identified herself as Patricia Perez. Unbeknownst to Mr. Sanmugarajah, Ms. Perez was in fact Constable Carla Machado of the Peel Regional Police Vice Unit. Constable Machado had received T.A.’s report on January 4, 2017, and promptly created her own fictional persona in order to investigate him.

[106] I don’t propose to review the details of Mr. Sanmugarajah’s numerous exchanges with Constable Machado between January 10th and January 17th, 2017. The seventeen (17) pages of messages between he and the officer are essentially a carbon copy of theonline interactions which Mr. Sanmugarajah had with both G.C. and T.A.

The script included essentially the same cast of characters,same assurances of high-end “nun-Canadian” clients, promises of absolute safety, and of course, the same itemized laundry list of sexualexpectations and directions not to complain. [107] In the same manner as he had done with G.C. and T.A., Mr. Sanmugarajah attended to the hotel room door on January 17, 2017,with the intention of having a sexual encounter with ‘Ms. Perez’, on the same terms. On this occasion, however, he was arrested by ateam of officers who were within the room. III. ANALYSIS

a) Fundamental principles [108] There are a number of binding legal principles that have guided my analysis and decision. First, the accused is presumedinnocent and bears no burden to prove his innocence. The presumption of innocence is only displaced if the Crown has established,beyond reasonable doubt, that he is guilty of the offence charged. The standard of proof is a high one (R v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 para. 27 and R. v. Starr, 2000 SCC 40para 242). [109] Second, the formula expressed in the Supreme Court of Canada's decision in R. v.

W. (D.) (1991), (SCC), 63C.C.C. (3d) 397 (S.C.C.) must govern my analysis. At its essence, the principles emerging from this decision centre on the Crown'sburden of proving guilt beyond reasonable doubt.

I am required to take the following approach in assessing the evidence in this case, andhave done so: • First, if I believe the evidence of the accused, I must acquit. • Second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit. • Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which Ido accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [110] Further, I remind myself that a criminal trial where the accused and complainants testify is not a credibility contest.

A judge isnot to simply compare the differing versions of events and choose which one the judge prefers (R. v. C.L.Y., 2008 SCC 2). Indeed, asJustice Cronk cautioned in R. v. O.M., 2014 ONCA 503: It is elementary that a complainant's credibility cannot be established by assuming the accused's guilt. Nor can an accused's evidence berejected simply because the evidence of a complainant is accepted. W.(D.) precludes this "either/or" approach to the assessment ofcredibility.

Instead, under the third step of W.(D.), the trial judge must ask whether, although she may not believe the accused's evidence,a reasonable doubt arises on the whole of the evidence that she does accept. [111] Finally, I may accept all, part, or none of a witness's evidence (R. v. Zimunya, 2013 ONCA 265para. 4)

b) Issues [112] The over-arching issue here is whether the Crown has proved that the accused is guilty of sexual assault based on thecomplainants’ lack of consent to the sexual touching by him. The Crown submits that lack of consent has been established in one ormore of the following four (4) ways: • Traditional lack of consent: the Crown invites me to accept the complainants’ evidence that at various instances during the prolongedsexual activity with the accused they withdrew their consent, with both words and gestures, which they said the accused ignored.

Hispersistence in engaging in sexual touching beyond their withdrawal of consent, it is argued, amounts to a sexual assault. • Consent vitiated by identity fraud: whatever agreement to sexual activity that the accused may have brokered online with thecomplainants in advance, under the auspices of his fictional role as manager of an erotic spa service, were obtained by fraud.

It is arguedthat the purported consent granted by the complainants to engage in sexual activity with a non-existent VIP “john” was vitiated, as it wasa fraud that went directly to the identity of the sexual participant. • Consent vitiated by non-payment: In addition, the notional consent granted by the complainants which was premised on the exchangeof sex for substantial financial reward was vitiated by non- payment; • Consent vitiated by bodily harm: that the damage caused to each of the complainant’s breasts, amounting to bodily harm, wassubjectively intended by the accused, thereby vitiating their consent;

c) Similar Act Application [113] The Crown has brought what is known as a "count to count" similar fact evidence application, which the parties agreed would bedealt with not as a pre-trial motion, but an argument as to admissibility at the conclusion of the case. This procedure was confirmed bythe SCC’s decision in Last (2010), 2009 SCC 45 , 247 C.C.C. (3d) 449 (SCC). [114] The Crown here is asking me to consider evidence relating to each of the complainant’s allegations of sexual assault by theaccused when considering the allegations in relation to the other.

[115] Evidence of other acts of discreditable conduct is presumptively inadmissible. This rule is intended to prevent the prejudice thatis caused by judging individuals based on their general character rather than on probative evidence, and to prevent trials of the specificallegations charged from becoming distracted or confused.

Justice McLachlin (as she then was) explained the essence of the similar factevidence rule with great clarity in R. v C.(M.H.), (SCC), [1991] 1 S.C.R. 763, at paras. 771-72: Evidence as to disposition, which shows only that the accused is the type of person likely to have committed the offence in question, isgenerally inadmissible. Such evidence is likely to have a severe prejudicial effect by inducing the jury to think of the accused as a "bad"person. At the same time it possesses little relevance to the real issue, namely, whether the accused committed the particular offence withwhich he stands charged.

There will be occasions, however, where the similar act evidence will go to more than disposition, and will beconsidered to have real probative value. That probative value usually arises from the fact that the acts compared are so unusual andstrikingly similar that their similarities cannot be attributed to coincidence.

Only where the probative force clearly outweighs theprejudice, or the danger that the jury may convict for non-logical reasons, should such evidence be received. … Thus, where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degreeof similarity of the alleged acts and decide whether the objective improbability of coincidence has been established.

Only then will theevidence have sufficient probative value to be admitted. [116] The burden on a similar fact evidence application is on the Crown to prove on a balance of probabilities that the probative valueof the evidence outweighs its presumed prejudicial effect. The Crown must demonstrate a connectedness, far beyond ambiguous orgeneric details, between the transactions affording probative value on specific issues for which there is an objective improbability ofcoincidence.

In performing this preliminary determination, the trial judge must also consider all of the dissimilarities between the allegedacts as well as the strength of the proposed evidence, including any potential for collusion. R. v. Handy (2002), 2002 SCC 56 ,164 C.C.C. (3d) 481 (S.C.

C) at paras. 31, 41, 45, 69-82, 99-101; R. v J.F., [2010] O.J. No 3415 (SCJ) at para 176; R. v. J.V., 2015ONCJ 815 , [2015] O.J. No. 7735 (C.J.) at para. 15. [117] As Justice Hill explained in R. v. J.F., supra, at para. 133: “ [t]he cogency of the evidence, derived from the improbability ofcoincidence, increases as the fact situation moves further to the specific end of the spectrum - also described as an "observed pattern ofpropensity operating in a closely defined and circumscribed context".

See also Handy, at paras. 87, 90, 110”. [118] Even when evidence disclosing the discreditable character of the accused is admitted to support proper, specific inferences, it isonly to be used for those inferences and not to draw the prohibited inference of general disposition: Handy at 55; [119] In Handy, the court suggested a non-exhaustive list of factors which assist the court’s evaluation of the degree of similaritybetween the proposed similar fact evidence and the offence(

s) charged: • Proximity in time of the similar acts; • Extent to which the other acts are similar in detail to the charged conduct; • Number of occurrences of similar acts; • Circumstances surrounding or relating to the similar acts; • Any distinctive feature(

s) unifying the incidents; • Intervening events; • Any other factors which would tend to support or rebut the underlying unity of the similar acts. (Handy, at para. 82) [120] I must remain mindful of the potential for similar act evidence to invite either moral and reasoning prejudice. Moral prejudiceoccurs when an inference of guilt is drawn from evidence of general disposition or discreditable character at large. Reasoning prejudicearises when the evidence distracts the trier or leads to sentiments of revulsion as opposed to dispassionate analysis(Handy, at paras. 74,139, 144-5; J.F. at paras. 132, 139; R. v.

Arp (1998), 129 C.C.C. (3d) 121 at paras. 45-48 (S.C.C.)) [121] The danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened in trials by judgessitting alone. R. v. J.M., 2010 ONCA 117 , [2010] O.J. No 585 (C.A), at para. 88 [122] The Crown argues that G.C. and T.A.’s accounts of their interaction with Mr.

Sanmugarajah, both in their online exchanges, butmore particularly in their physical and sexual interaction with him, satisfy the legal threshold for admissibility, and are relevant andprobative of the following issues: • Credibility • Actus reus -- whether the complainants consented; • Mens rea -- whether the accused honestly but mistakenly believed that the complainants had consented to all of the sexual activitiesengaged in; • Whether the accused has a propensity to force sexual conduct with female partners beyond what the women consented to, particularly

through aggressive breast-sucking and fellatio. [123] The Court in Handy cautioned against the admission of similar act evidence as probative of the general issue of credibility. As itstated at paragraphs 115 and 116: The Crown says the issue generally is “the credibility of the complainant” and more specifically “that the accused has a strongdisposition to do the very act alleged in the charges against him”, but this requires some refinement.

Care must be taken not to allow toobroad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of theCrown’s case (Sopinka, Lederman and Bryant, supra, at § 11.26). Credibility is an issue that pervades most trials, and at its broadestmay amount to a decision on guilt or innocence. Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant.

Identification ofcredibility as the “issue in question” may, unless circumscribed, risk the admission of evidence of nothing more than general disposition(”bad personhood”). [124] Were the Crown simply seeking to tender the evidence for the sole purpose of enhancing the credibility of the witnesses, Iwould not conclude that the similar fact evidence is probative of an issue at trial. However, in his detailed written and oral submissions,Ms.

Bernstein for the Crown has narrowed the issue in question to consideration of consent as it relates to the “distinctive nature” of thetypes of sexual conduct alleged to have been committed with each complainant.

He suggests that the similar act evidence is probative ofa “situation-specific” propensity to engage in such conduct, and to rebut the inference of innocent association or fabrication by thecomplainants. [125] The probative value of similar fact evidence has been recognized in cases were the similarity between the allegations shows anunderlying unity or system of course of conduct which provides a connecting link between them.

The evidence in these circumstances isprobative of truthfulness of the accounts of the complainants in relation to whether the offences occurred, and to show a pattern of similarbehavior that confirms that the offences took place as described. (R. v. R.B., [2005] 3575 (C.A.) at para. 11; R. v. T.C., (ON CA), [2005] O.J. No. 24 (C.A.) at para. 56. [126] The Crown submits that the complainants’ evidence demonstrates a consistent pattern of strikingly similar behavior by theaccused, both online and in the real world, which is probative of each of the issues for which admissibility of the evidence is sought.

Thepattern, says the Crown, began with Mr. Sanmugarajah’s use of the same elaborate Craigslist ruse to set up a false “date” with eachwoman, under the pretext of a promised generous payment, as a fictional erotic spa owner. With each complainant, he sought theiragreement in advance to a “laundry list” of sexual activities, including the distinctive request for possible breast-sucking, which might bea “little hard”.

Finally, it is suggested that this pattern included his failure to cease his activities (in particular, breast-sucking andaggressive fellatio) when both women demonstrated that they were no longer consenting. [127] The defence admits that there are similarities in the allegations between the two complainants, as well as in the circumstancessurrounding, and context of the two occurrences.

It is noted that that the incidents are temporally distinct (two years apart) and suggeststhat the allegations of forced fellatio are not so similar as to foreclose the possibility of a coincidence[1]. [128] I find that the proposed similar fact evidence is probative to the live and material issues of credibility of the complainants’accounts in relation to whether the offences occurred, actus reus, mens rea and rebuttal of defences including denial and fabrication. Ifind that the evidence bears a sufficient number of striking similarities which cannot be attributed to coincidence.

In arriving at thisconclusion have considered the following factors. [129] G.C. and T.A. don’t know each other. There is no basis for, or suggestion of any collusion between the two complainants. Theallegations occur and are reported approximately two years apart. [130] In considering the most critical of the Handy factors, namely, “the circumstances surrounding or relating to the similar acts” andthe presence of “any distinctive features unifying the incidents”, I make the following observations.

First, as stated above, the accusedhas admitted to using the same ruse to engage in numerous online exchanges with both complainants leading up to each of the incidentsgiving rise to the charges.

He recycled the same script of fictional characters, and followed the same pattern of exchanges in his lead-upto the final message to each woman in which the ‘laundry list” of expected sex acts were particularized by him. [131] Beyond the identical electronic transmissions both before and after the allegations of misconduct are the following similaritiesbetween those emails, and within the specific allegations said to have occurred inside the room: • Both allegations occurred at the same hotel; • The emails with both women referred to “a little hard” breast sucking, and a “special spray” to deal with any ‘marks’; • The emails to both women directed them to tell the client to “suck boobs harder”; • Both women described the accused’s aggressive sucking or biting of their breasts; • Both women described the sucking as being beyond what they would expect to experience from kissing or light sexual sucking; • Both complainants testified that they expressed and demonstrated pain in response to the accused’s aggressive conduct with theirbreasts; • Both complainants testified that they asked the accused to “stop” or “please stop” when he was biting their breasts;

• Both women alleged that the accused ignored their protests and continued; • Both women observed red marks or bruising to their breasts immediately following the incident, which they photographed; • Both complainants described the accused’s placement of his legs over their shoulders after they had begun

an act of fellatio on the bed; • Both complainants described the accused using his knees on either side of their heads as a ‘clamp’ to hold their heads in place, and their mouths on his penis; • Both complainants struggled, spoke or gestured to express their lack of consent to this activity and their wish to be released from this position; • The accused ignored their signals and maintained physical control of them with his legs and hands in order to force their mouths to remain on this genitals; • The accused ejaculated into both complainants’ mouths, despite having been told by both women that they did not consent to swallowing ejaculate. [ 132 ] I acknowledge that there were some differences between the allegations, however in my assessment these could only be described as minor.

With T.A., the oral sex started on the couch area, before it moved to the bed where the conduct resumed and he placed his legs over her shoulders in the ‘head lock’ position. G.C.’s experience of forced fellatio did not include this two-stage process. T.A.’s also alleges that the accused struck her buttocks with his hand during their sexual contact, a feature which is not alleged by G.C. Notwithstanding these distinctions, I find that there are a preponderance of similarities between the allegations of the two complainants, as they relate to the context and mechanics of the allegations of sexual misconduct.

There could be no possibility of coincidence as an explanation. [ 133 ] Despite the subtle differences between the occurrences in this case, I find that there is a connectedness, far beyond ambiguous or generic detail, between the allegations of G.C. and T.A., thereby affording probative value on the issues in question. [ 134 ] In making the final assessment of prejudice, I note that the seriousness or severity of each occurrence is equivalent.

They both involve allegations of sexual assault causing bodily harm to the same alleged areas of their bodies (their breasts). [ 135 ] Finally, this is a judge-alone trial. Accordingly the potential for moral or reasoning prejudice is diminished.

I find that in this case, the probative value of the evidence outweighs the prejudicial effect. [ 136 ] The evidence of each complainant is therefore admissible as evidence of other acts of discreditable conduct of the accused. [ 137 ] Having determined the threshold admissibility of the similar act evidence, I must now proceed to consider all of the available evidence, inclusive of the similar act evidence admitted only on the issues in question, in the resolution of the ultimate issue of whether the Crown has discharged its burden of proving Mr.

Sanmugarajah’s guilt of sexual assault causing bodily harm beyond a reasonable doubt

d) The Elements of sexual assault [ 138 ] There is no issue in this case that Mr. Sanmugarajah touched both G.C. and T.A. intentionally and that the physical contact was of a sexual nature. Therefore the Crown must prove that the complainants did not consent ( actus reus ) and that the accused did not have an honest but mistaken believe in consent ( mens rea ). [ 139 ] In its seminal decision in Ewanchuk [2] the Supreme Court of Canada expressed what has become and effective checklist for the core elements of the sexual assault provisions, and their intended application.

These concepts include: • the actus reus of sexual assault is unwanted sexual touching. • the absence of consent, as an element of the actus reus , is purely subjective.

It is to be assessed only by reference to the complainant’s internal state of mind toward the touching, at the moment it occurred; • the complainant’s testimony is the only source of direct evidence as to her state of mind, however, credibility on this issue must be assessed by the trier of fact in light of all of the evidence; • the complainant’s words or actions, before and during the incident, may raise a reasonable doubt against her assertion that in her mind, she did not want the sexual touching to occur • The trier of fact may come to only one of two conclusions: the complainant either consented, or she did not.

If the trial judge accepts the complainant’s evidence regarding the absence of her consent, the actus reus is established. There is no third option of “implied consent”; • The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched; • The accused assert an honest but mistaken belief in consent in denial of his mens rea .

Part of this assessment may include reference to the accused’s perception of the complainant’s state of mind; • Not all beliefs upon which an accused might rely will exculpate him. His belief that silence, passivity or ambiguous conduct by the

complainant amounts to her consent will not provide a defence; • If the complainant expresses, by her words or conduct, an unwillingness to have sexual contact, the accused must ensure that she hastruly changed her mind before proceeding with further intimacies. He cannot rely on a mere lapse of time or the complainant's silence orequivocal conduct is indication of the complainant’s permission or consent to proceed.

Nor can he engage in further sexual contact to“test the waters”. [140] The Supreme Court has emphasized that consent under s. 273.1 is defined in a robust manner which protects and promotespersonal integrity of every individual. As Justice Major explained, sexual autonomy is the core concept emanating the criminalization ofsexual assault: …Society is committed to protecting the personal integrity, both physical and psychological, of every indi

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