R. v. Kulkarni, 2011 ONCJ 309

WARNING An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code has been made in this proceeding. These sections of the Criminal Code provide: 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1 )(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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.

(3) In proceedings in respect of an offence under

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written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3 )( b). 486.6

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

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . COURT FILE No.: Brampton 10-4333 DATE: June 2, 2011 Citation: R. v. Kulkarni , 2011 ONCJ 309 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — dilip kulkarni Before Justice Richard H.K. Schwarzl Heard on December 10, 2010, January 7, March 3 and April 6, 2011

Reasons for Judgment released on June 2, 2011 Mr. Paul Renwick..................................................................................................... for the Crown Ms. Samantha Peeris............................................................................................. for the Accused SCHWARZL, J.: REASONS FOR JUDGMENT 1.0: Introduction [ 1 .] Mr. Dilip Kulkarni stands charged on Information 10-4333 with three offences arising from the summer of 2009. Count One alleges that on August 21, 2009 he sexually assaulted Ms. S. S.-R (“S.-R.”).

Count Two alleges that on September 5, 2009 he sexually assaulted Ms. H.L. (“L.”). Finally, Count Three alleges that on September 5, 2009 he sexually assaulted Ms. C. G.-S. (“G.-S.”). Mr. Kulkarni has pled not guilty to each of the three charges. [ 2 .] At all times I am mindful of the presumption of Mr. Kulkarni’s innocence on each charge. The unshifting burden is upon the Crown to prove the guilt of Mr.

Kulkarni beyond a reasonable doubt on all elements of each count. [ 3 .] In order for the prosecution to succeed on any count, it must prove beyond a reasonable doubt that the Accused intentionally applied force to the Complainant for a sexual purpose without her consent. If there is no consent, the Crown must negate any honest but mistaken belief as to consent. 2.0: Facts 2.1: Count #1 – S. S.-R [ 4 .] S. S.-R is an intelligent, articulate, and mature professional woman. In the summer of 2009, she began taking fitness classes at the B3 Fitness Club in Mississauga.

S.-R participated in yoga amongst other wellness and exercise programs at the club. Whenever the club was open, one or both the owners Anne Marie and Brad Baker were on site, though not necessarily involved in any given class. [ 5 .] The Accused was her yoga instructor. S.-R was a yoga novice, having participated in only a couple of classes before ever being instructed by the Accused. [ 6 .] The yoga studio is in the basement of the fitness club. It adjoins a corridor leading to the change rooms and a weight room. There is a sliding entry door into the studio.

Passers-by can look into the studio if the door is not fully closed. Inside the studio, one wall is covered in mirrors. [ 7 .] On August 21, 2009 S.-R went the Accused’s yoga class. She had been instructed by him three or four times before. It was a Friday night and not very busy. She was one of three to five students. Consistent with her prior experience, at the outset of the class the Accused asked each student if he could touch them in order to correct poses. While S.-R did not recall being touched by the Accused during this class, in the past he has touched her and always asked beforehand if he could.

She never refused in the past. Any time he touched her before, he was correcting her poses and simultaneously giving verbal instruction. [ 8 .] At some point during the class the Accused was giving instruction on the importance of breathing from the lower abdomen and recommended kegel exercises to improve one’s breathing. Such exercises involve the muscles in the pelvic and groin areas. S.-R

agreed in cross-examination that she told the police in her statement that the Accused spoke of breathing from the intestines. She did not refer to “kegels” when talking the police. This is an inconsequential omission or contradiction. It is clear both from her statement to the police and her evidence at trial that the Accused’s instructions to the students was that proper breathing for yoga must come from low in the torso. [ 9 .] S.-R had difficulty understanding and executing the recommended deep breathing.

When the class was finished, and while other students were putting their mats and equipment away, S.-R asked the Accused to help her. He agreed. [ 10 .] After everyone else had left, the Accused told S.-R that she was a shallow breather, drawing breath from higher up in her torso. While explaining the deep breathing technique to her, the Accused came behind S.-R and held her tightly by wrapping one arm between her navel and chest and put the other hand on her vaginal area. She could feel his body behind hers. They were facing the mirrored wall as he held her.

The fingertips of his hand were on the front of her vagina and he made eye contact with her in the mirror. As he held her thus, the Accused told S.-R to breathe and that her breathing was to “start down here” as one or two of his fingertips were tightly on her labia. [ 11 .] S.-R testified that as the Accused held her in this manner, she thought to herself, “This isn’t happening.” At the same time, his other hand began moving up towards her chest. As it did, she hoped “he doesn’t get up there, too” referring to her breasts. However, his hand never reached that far and returned to her belly.

At no time did S.-R feel an erection from the Accused. [ 12 .] S.-R could not say how long the Accused held her, but believed it felt like anywhere from two to ten minutes. She felt confused by what was happening and did not want to believe that the Accused was touching her crotch for any improper purpose especially considering their relationship as instructor and student. She wondered to herself that because she was new to yoga, perhaps such touching was necessary for him to teach her the correct technique. At the same time, she called to mind that in the past he had asked to touch her, but did not this time.

Despite all that was happening and her conflicted thoughts, S.-R said and did nothing. [ 13 .] After being held for an unspecified time, S.-R saw a shadow at the open studio door signally that someone was approaching which startled her. She felt embarrassed and did not want anybody to see her in this position. Consequent to her reaction, the Accused released her and backed off. The shadow at the door was that of Mr. Baker, one of the club owners, who came into the studio to change the garbage. As he did, the Accused kept explaining the breathing technique to S.-R but did not touch her in Baker’s presence.

S.-R said nothing to Baker. [ 14 .] When Baker left, the Accused came back behind S.-R. Before he could resume holding her, she said, “You know what? I don’t feel comfortable.” The Accused responded by stating that his actions were intended to teach her how to breathe properly. She felt that he was making an excuse to get his hand on her. However, she did not confront him about what happened. Instead, she left. On her way out of the club, she saw the Accused at the reception area but did not speak to him.

Nor did she say anything to the two owners who were also at the reception area when she left. [ 15 .] S.-R. never took another yoga class with the Accused. She has, however, continued to take yoga instructions at the same gym from different instructors. No instructor before, or since, has ever touched, or asked to touch, her crotch for any reason. All other instructors who discussed breathing techniques have demonstrated on themselves. [ 16 .] S.-R. testified that had the Accused asked if he could put his arms around her to demonstrate the breathing technique she would have agreed.

She stipulated, however, that had he said that he would put his hand on her vagina, she would have said no. 2.1.1: Credibility Assessment Credibility of S.-R. [ 17 .] I found S.-R. to be a credible and reliable witness. She was fair, clear, intelligible, and materially consistent on the central issues. Any inconsistencies or omissions were minor and did not detract from the believability of her testimony. I accept the evidence of S. S.-R. as true. 2.2: Count #2 – H. L. [ 18 .] H.L. is a kindergarten teacher. She is a well spoken, clear thinking, and intelligent woman. H.L. has been a life-long

practitioner of yoga, having done so for as long as she can remember. Typically, she does yoga in private but sometimes goes to a class. [ 19 .] In August of 2009, H.L. joined the B3 fitness club in order to work with an instructor named Karen-Lisa, whom H.L. knew from the YMCA. Prior to the incident on September 5, 2009 H.L. had attended between six and eight yoga classes at the B3 fitness club. Her instructors were usually either Karen-Lisa or Anne-Marie Baker but the Accused had been her instructor on one prior occasion. Classes were either sixty or ninety minutes long and had four to six students.

She described the yoga studio as having a frosted, or translucent, wall in which a translucent sliding glass door is located. Opposite that wall is a wall covered in mirrors. The two end walls are dry-walled. [ 20 .] H.L. testified that the role of the yoga instructor is to model various yoga postures and techniques. They will guide and assist students with words and/or light touches on the extremities in order to correct or sustain yoga poses. In her experience, the yoga instructor will always ask if they can touch the student.

Sometimes, the instructor will inform the student what they are about to do before touching the student. [ 21 .] In her first class with the Accused, he always asked each student if he could touch them and when he did, it was a guiding touch on the extremities only. [ 22 .] On September 5, 2009 H.L. attended the B3 yoga studio with her friend C. G.-S., who was visiting her from out of town for the long weekend. They had been students together at university and G.-S. was also an experienced yoga enthusiast. On arriving at the club both owners, Brad and Anne-Marie Baker, greeted them.

G.-S., who was not a member, was required to sign some club documentation to permit her to use the facilities. H.L. recalled that G.-S. was reluctant to sign the documents, but finally did. [ 23 .] After checking in, the two got ready in the club change room, which is very near the yoga studio. After getting changed, they entered the studio. Generally the frosted sliding door is closed so that the yoga class is not disturbed by others using nearby gym facilities.

However, H.L. could not specifically recall whether or not the door was in fact closed on this occasion. [ 24 .] H.L. and G.-S. were the only students for this class. Only on entering did H.L. discover that the Accused was the instructor. He had already set up the mats. His mat was closest to the mirrored wall while the student mats were in front of his, parallel to one another beyond arms’ reach, facing the mirrors. [ 25 .] H.L. recalled that the style of yoga that day was Hatha yoga.

She is very familiar with this style and did not expect anything new or strenuous. [ 26 .] The class began in a routine fashion with general warm ups and familiar poses. However, sometime in mid-class things changed and didn’t feel right to H.L.. During three different poses, the Accused touched her without first asking and without first telling her what he was going to do. She described each of these events as inappropriate touching. “Downward Dog” Pose [ 27 .] The first pose was the “downward dog.” In this pose, the student faces the floor with both hands on the ground and the arms fully extended.

Also, one’s feet are on the ground with the legs straight. The body is hinged at the hips, and is moved forward and down while the hands and feet remain on the ground. The pose is repeated several times. [ 28 .] H.L. said that during the “downward dog” pose, the Accused approached from her side and put one hand on her buttocks. She described that he made a quick poke with his finger on her pants as if to penetrate her anus. As he did so, he said, “Lift your tail bone.” He let go of her after he lifted her.

This lasted for two to three seconds. [ 29 .] During a subsequent repetition of the “downward dog”, the Accused wrapped one arm around her back, hooked her stomach with it and lifted her with the other hand while telling her to lift her tail. H.L. said that on this occasion, which also lasted only a couple of seconds, the Accused put his face near her buttocks when he lifted her again.

[ 30 .] H.L. felt shocked a little by the Accused’s actions. She thought, “Oh! That’s different” but said nothing. “Cat Cow” Pose [ 31 .] H.L. said that the Accused touched her again during the “cat cow” pose. In this pose, the student is on all fours. When inhaling one arches the spine with the head down, like a cat stretching. As one exhales the chin is lifted and the spine bowed, creating a bovine-like profile. While in the “cat cow” pose, the Accused was standing closer to her head. He put his hand between her legs, swiping her crotch and rubbing her vulva with his palm over her clothing.

He also touched her buttocks again. Each time she breathed, the Accused told her to inhale then exhale while at the same time moving his hand back and forth from her vulva to her buttocks. This touching lasted for between fifteen and thirty seconds. He used a fair degree of pressure when he did so, pushing against her body as he moved his hand. During the “cat cow” pose, the Accused did not touch her anus. “Bridge” Pose [ 32 .] The last pose during with the Accused touched the Complainant was the “bridge” pose.

This is the opposite of the “cat cow.” In the “bridge” pose, the student’s stomach is in the air while the hands and feet are firmly planted. H.L. recalls that this pose was done near the end of the session. While in the “bridge” pose the Accused was near her feet. He put both of his hands on H.L.’s buttocks, squeezed them and lifted her feet off the ground and causing her hands to start coming off the ground as well. She described his actions as putting her body into a position that was not any yoga pose known to her.

Once he had lifted her, the Accused told H.L. to slowly lower her hips as he continued to hold her buttocks. H.L. agreed that in an extended “bridge” pose, it is important to descend slowly, otherwise, one risk injury by coming down to fast and landing hard. However, she emphasized that there was no need to be held by the buttocks, nor have them squeezed, to adequately perform this particular pose. [ 33 .] Even after H.L. brought her body to the ground, the Accused continued to hold her buttocks for as much as ten seconds, although she said it felt much longer than that.

Overall, the total time the Accused clutched her buttocks in the “bridge” poses was approximately one minute. [ 34 .] At no time during any of the touching did H.L. say anything to the Accused or do anything to stop him or signal discomfort. She did not raise any concerns or confront the Accused inside the classroom, even when asked by him for feedback as the class concluded.

However, at no time did H.L. tell the Accused that he could touch her crotch or buttocks, nor did she ever say he could continue touching her in those places. [ 35 .] From time to time during the class H.L. noticed that the Accused was touching G.-S. but she could not say where he placed his hands upon her. H.L. also tried to make eye contact with her friend as if to inquire if anything was going on with her but G.-S. did not send any sign or say or do anything other than continue her poses. H.L. also recalled the Accused spoke to G.-S. during the class but did not recall what he said.

H.L. could not recall if the Accused was between herself and G.-S. when the Accused touched her. [ 36 .] Throughout the class, including those times when the Accused touched her, H.L. attempted to focus on her breathing and poses because yoga requires great concentration. She said that she was “trying to normalize what was going on.” She felt very uncomfortable and had to work harder to maintain her yoga pose when the Accused was touching her. She disagreed with the suggestion that she did not think the touching was inappropriate when it happened.

She agreed that at first it didn’t register that the touching was sexual. She agreed that she told the police that her first thought was that the touching was O.K., but it really wasn’t. [ 37 .] H.L.’s evidence is that she wasn’t ready to understand what was really going on when she was being touched. H.L. testified that she was confused about what had happened and didn’t fully appreciate that something negative was taking place. She didn’t want to break her concentration, she didn’t see or hear G.-S. complaining, and she did not want to the first one to say anything. This is why she did not tell Mr.

Kulkarni to stop. [ 38 .] H.L.’s experience with the Accused on this occasion did not fit her understanding of yoga because yoga is meant to be comforting and inviting but it was neither on this occasion. [ 39 .] Unlike the prior class she had taken with the Accused, during the one on September 5, 2009 he never asked either H.L. or G.- S. if he could touch them in way they complained of. She testified that had the Accused asked her if he could touch her buttocks, anus, or genital areas she would have refused.

[ 40 .] H.L. further testified that in all her years of yoga, no instructor has ever touched her genitals or her buttocks. [ 41 .] After class and on the way to the change room, H.L. and G.-S. spoke to each other for the first time since the class began. H.L. asked G.-S. if the class felt normal. G.-S. said that it did not and H.L. agreed.

They agreed that the actions of the Accused were inappropriate and decided to speak with him about it even though at first H.L. was reluctant to say anything because she did not want the Accused to feel awkward. [ 42 .] As H.L. and G.-S. were leaving the B3 Fitness Club they saw the Accused, his fiancé and Anne-Marie Baker in the foyer. Mr. Baker may have been there but H.L. did not remember if he was or not. The Accused was speaking with Ms. Baker. H.L. and G.-S. went outside and decided to go in and ask the Accused if they could speak with him. The Accused showed no reluctance in agreeing.

The Accused came outside with his fiancé who waited in the car while he spoke with H.L. and G.-S.in the club’s parking lot. [ 43 .] In the parking lot, H.L. and G.-S. told the Accused for the first time how they felt. H.L. said that she felt violated. She told him that if he is going to touch someone like that, he needs to say so first and say why before he does it. H.L. said the Accused replied, “OK. What should I do next time?” H.L. felt that the Accused did not appear to understand her complaint so she reiterated what she had just said.

The Accused told her that that was how he was trained as an instructor and added that because the two women were so flexible he wanted them to experience the full benefit of the postures. [ 44 .] Following their conversation with the Accused in the parking lot, H.L. and G.-S. went to a park. They discussed what happened and still did not feel right about their experience with Mr. Kulkarni, both in the yoga room and later in the parking lot. [ 45 .] The next day H.L. and G.-S. went to Toronto where they met L.E., a friend of G.-S.

H.L. and G.-S. discussed how they felt about the incident with L.E. and the three talked about what course of action to pursue. H.L. said they did not discuss details of the incident, but only how it made them feel, although she recalled hearing G.-S.give Ms.

L.E. a full description of the events. [ 46 .] H.L. and G.-S. decided to report the incident to the police because, as H.L. testified, “What really happened in the class sunk in.” She explained this by stating “In the moment things were happening so quickly and it’s not matching with what your intention and your focus is, but once you’ve stepped away from it and - and thought about it, you understand that what happened in that class is wrong and - and that that’s a total invasion of my privacy.” Ms.

L.E. was also adamant that the police should be called. [ 47 .] H.L. spoke with a policeman friend of hers for some advice because making a formal complaint was uncharted territory for her. After speaking with her friend, a call was made to the Toronto Police Service. H.L. was not sure who called, but believed upon reflection that it was probably Ms. L.E.. Two officers (neither of whom was H.L.’s friend) attended L.E.’s apartment. The officers took complaints from both H.L. and G.-S. in the presence of each other and in the presence of Ms. L.E..

The matter was subsequently referred to the Peel Regional Police Service. [ 48 .] On September 18, some two weeks after the event, Ms. H.L. gave a video statement to Peel Regional Police Detective Bender. Between the initial police contact on September 6 and the subsequent video statement, H.L. was too wrapped up with work as a teacher to think, let alone talk to G.-S., about the incident. When she gave her video statement, H.L. was instructed by the officer not to discuss the details with G.-S..

She followed that advice assiduously. 2.1.2: Credibility Assessment Credibility of H.L. [ 49 .] H.L. ’s evidence was firm, certain and constant regarding the core allegations involving the events at the yoga studio. Her recollections regarding events that followed were somewhat softer. Frequently she would frame a response to secondary events by explicitly or implicitly stating that due to the passage of time, it was hard for her to recall details. As but one example, she was unsure on who called the Toronto Police from L.E.’s place.

It was obvious that the focus of her memory was on the central allegations and not the events that followed. H.L. was candid about her evidentiary limitations. She was never cute or elusive, but instead was always forthright. Her evidence had the ring of truth to it. [ 50 .] It was submitted on behalf of Mr. Kulkarni in assessing the evidence the court should be distrustful of each of the accounts

given by H.L. and G.-S.due to the likelihood of subtle influence or “cross-pollination” caused by the multiple intense discussions beginning immediately after class and continuing through the next day about what happened to each of them.

After the yoga class H.L. and G.-S.spoke about what happened on several occasions: first in the change room immediately afterward; then at a local park; then with their friend L.E.; and finally together in each other’s presence to the attending Toronto Police officers. [ 51 .] I do not find that H.L. ’s evidence was materially influenced or infected by these post-event conversations. Having heard from G.-S. the details of her complaint, it would have been easy for H.L. to parrot or refer to them to the police or the court. But she did not.

Indeed, H.L. ’s testimony was that despite being in the same room at the same time with her friend when the events unfolded, she did not witness anything the Accused may have done to G.-S. in her presence. As will be discussed later, G.-S.gave evidence that she witnessed H.L. being touched inappropriately by the Accused in a “sit up” pose. H.L. could have, but did not, incorporate this into her narrative.

Nor did she adopt it in any part of her testimony when it would have been easy to do so in order to create homogeneity of the two Complainants’ accounts. [ 52 .] Despite the opportunity to have been influenced by the post-event discussions with G.-S., H.L. ’s evidence was the product of her own, independent recollections. [ 53 .] I found H.L. to be a reliable and satisfactory witness on all material issues. I accept her evidence relating to her count as true. 2.3: Count #3 – G.-S. [ 54 .] G.-S. is a twenty-one year old university student. She is extremely intelligent, comporting herself as intellectual.

G.-S. is an ardent yoga practitioner. She has been practising it fervently since age 15. Usually she does yoga on her own, but has taken at least twenty-five classes. In her experience, yoga instructors typically verbalize techniques to students and little touching is required. It was also her experience when instructors have touched students it was only ever on the peripheral aspects of the body.

She herself has only been touched by instructors once or twice in order to open her fingers wider. [ 55 .] G.-S. gave emphatic and unchallenged evidence that in yoga there is never a need to touch a student on the buttocks, vulva or chest. [ 56 .] On September 5, 2009 G.-S. went to the B3 fitness club in Mississauga with her old university friend H.L. . G.-S. was in town for the long weekend to visit Ms. H.L. who invited G.-S. to attend the yoga class.

She had never been there before and did not know the Accused. [ 57 .] On arriving at the club, G.-S. was required to pay a fee and fill out some forms to comply with the gym’s policies and requirements, including a health history form. While she didn’t recall being told that if she didn’t complete the paperwork, she would have to leave, G.-S. remembered being told that she couldn’t participate in the yoga class unless she signed. [ 58 .] G.-S. agreed that one can get injuries during yoga. Accordingly, the student’s state of health is useful information to the gym and the instructor.

She also received a written copy of the club’s rules [1] which included a rule that yoga instructors may at times request to physically correct or assist the student’s position or routine to ensure proper form. G.-S. said that this is a typical rule for yoga classes. [ 59 .] After completing the paperwork she and H.L. went to the change room, put on their yoga clothes and entered the yoga room. G.-S. described the studio as having the corridor wall made up of frosted glass sliding doors. In chief G.-S. said the sliding glass door was closed.

In cross-examination, she said the door was open “a tiny crack, no more than a foot.” She had told the police that the door was “a bit closed.” [ 60 .] She said the long interior wall was covered in mirrors while the end walls were bare. G.-S. and H.L. then pulled yoga mats from a corner and set them up parallel to each other about four to five feet apart. They then introduced themselves to the Accused, whom G.-S. believed was already in the yoga room as they entered. [ 61 .] The class started with meditation and breathing. G.-S. and H.L. were facing the Accused who led the exercises.

She was not sure what variety of yoga was being practised that day. G.-S. described the Accused as enthusiastic about yoga.

[ 62 .] The class proceeded uneventfully. The Accused frequently told them to relax and commented that he thought each of them was so flexible. At one point, the Accused asked G.-S. if he could touch her shoulder on a pose which she allowed him to do. G.-S. said that she was alright with the Accused helping with poses by touching peripheral parts of the body as in her experience this is normal. [ 63 .] As time went by G.-S. said that the Accused touched both her and H.L. inappropriately during four different yoga poses.

She recalls she was in the “cat”, “sit up”, “prayer” and “warrior/triangle” poses when the Accused touched her in an unwanted manner, but could not say in what order they were done. ”Cat Pose” [ 64 .] G.-S. recalled being touched while in the “cat” pose, which consists of being on one’s hands and knees arching and bowing one’s back in repeated cycles. H.L. called this the “cat cow” pose. According to G.-S., this is a very easy pose and is not one that ever requires being touched by the instructor. During one of the “cat” pose cycles, G.-S. was arching her back.

The Accused told her that he would help her arch some more and cupped her vulva with one hand while placing the other on her buttocks. He pulled her back, causing her to bow more and as he pushed her forward, her spine arched more. This pulling and pushing lasted two to three minutes and his hand was on her vulva the whole time. He was also continuously giving instructions while touching her. The Accused did not ask her permission to touch her in this manner.

Nor did the Accused explain that he needed to touch her vulva and buttocks to extend the pose. [ 65 .] While the Accused was touching her vulva in the “cat” pose G.-S. felt confused because nothing like that had ever happened to her before. She also saw that the Accused did the same thing to H.L. . G.-S. thought that since (

a) H.L. had been in the Accused’s class before and (

b) H.L. was not complaining that his conduct must be a part of the yoga instruction. “Sit Up” Pose [ 66 .] The Accused touched G.-S. while in the “sit up” pose. In this pose, the student sits erect with legs extended, raises the rear and reaches back. The Complainant has practised this pose a lot. She had never needed assistance with it nor has an instructor touched her while doing it before. [ 67 .] On this occasion, the Accused twice used both of his hands to take G.-S. by her buttocks and lifted her up and down.

At no time did the Accused explain in advance what he going to do other than stating, “Let’s extend this pose.” Each time he lifted G.-S. he held her for as long as a minute while saying, “the longer you hold it up the better the benefit.” Notwithstanding this assertion, G.-S. received no benefit for his actions. [ 68 .] G.-S. did not say anything to the Accused because she had seen him do the same thing to H.L. earlier.

In the absence of any complaint from H.L. , G.-S. wondered if she was wrong to think it was inappropriate. “Praying” Pose [ 69 .] G.-S. was in what she called the “praying” pose which involves pushing the chest out with the chin down whilst on one’s knees with the back straight up and the arms reaching back to hold one’s ankles. During this pose, the Accused put both of his hands on her back to push her chest out further. He pushed her so far that he was holding her in the air, causing her to come out of the pose entirely. G.-S. said there was nothing sexual about this manoeuvre but it was unnecessary.

It felt to her like the Accused just wanted to touch her for the sake of touching her, not because she needed it. “Warrior/Triangle” Pose [ 70 .] G.-S. described a further instance of inappropriate touching by the Accused. This time it happened in the “warrior/triangle” pose. In this position, the student stands with one leg extended back with the other leg bent at the knee. When the arms are both extended straight out the sides, this is called the “warrior” pose. When the arms are both extended straight above the head, it is called the “triangle” pose.

[ 71 .] While in this stance, the Accused placed one hand on G.-S.’ back and the other one on her buttock, holding her firmly for one to two minutes. This took place near the end of the class. While the Accused was holding her buttock, G.-S. thought to herself, “This is definitely inappropriate.” Never having been in such a situation before, she did not know what to do. She also thought that perhaps H.L. would explain later that the Accused was merely eccentric. As a result, G.-S. said and did nothing while it was happening. [ 72 .] During the yoga class, G.-S. observed the Accused touch H.L. inappropriately.

When he touched H.L. , it seemed to G.-S. like the Accused was touching H.L. longer than her. G.-S. agreed that her time estimates were not reliable because often distasteful things seem to take longer than they actually do. She adopted her statement to the police wherein she said that the touching in each pose “was just a little prolonged holding that I felt was really unnecessary.” [ 73 .] The Complainant also described other inappropriate touching by the Accused. From time to time during the class, the Accused touched both women`s faces and brushed their hair away from their faces, too.

G.-S. said that there was no need for the Accused to do that and no other yoga instructor has ever done that to her. [ 74 .] When asked if all the inappropriate touching was over the clothes, G.-S. testified, “Yes. Well, no, actually. The touching of my vulva and my butt was done over my clothing, but there was some inappropriate touching of my forehead, which is not over clothing, but everything else was.” [ 75 .] At no time during or after any of the times she was touched by the Accused without her permission did G.-S. say or do anything to object while the class was in session.

At the end of the class the Accused asked both Complainants if they had any questions. G.-S. did not confront him or complain about what happened because he kept talking so that she felt she could not get a word in. [ 76 .] G.-S. said that she did not say anything while the inappropriate touching was happening she was confused with conflicting thoughts. In particular, she did not complain because (

a) H.L. didn’t complain, (

b) since H.L. had been instructed by the Accused before, G.-S. thought that such behaviour was normal in his class, (

c) perhaps he also touched men the same way, (

d) given the Accused’s foreign culture, such touching may be acceptable where he comes from, and (

e) she wasn’t sure whether he was doing it to be a good teacher or for a sexual purpose. [ 77 .] After leaving the room and changing, G.-S. brought the issue up and asked H.L. if that had ever happened before with the Accused. H.L. said it had not.

When G.-S. said the touching was in appropriate, H.L. told her that she felt gross but didn’t say anything because G.-S. hadn`t spoken up at the time. [ 78 .] G.-S. told H.L. that they should tell the Accused how they felt about his inappropriate behaviour in the hopes that he would acknowledge that he needs to get consent before touching someone like that. [ 79 .] As G.-S. and H.L. were heading to the club exit together, they saw the Accused with his wife or girlfriend speaking to a manager. G.-S. wanted to speak with him but went outside. Once they had left the building, they decided to stay.

H.L. went back in to ask the Accused to come out to talk to them. Ten or fifteen minutes later, the Accused came out. G.-S. and H.L. then spoke to him in the parking lot. [ 80 .] When the Accused arrived outside, he told them about his girlfriend and that she spoke little English as Spanish is her first language. G.-S. and H.L. listened politely, waiting for an opportunity to bring up the topic they were anxious to discuss. Eventually, G.-S. told the Accused that he had touched them inappropriately during class and that he must not do that.

G.-S. told the Accused that he needed to ask people of clear consent before touching them. She told him that if he needed to touch someone in a private area he had to tell them why he wanted to and why it would be beneficial. The Accused responded by stating, “Oh, I didn’t think of it that way. I didn’t think I had to ask if I could touch your gluteus maximus.” G.-S. told him that he still needed to get people`s consent with full understanding.

During the conversation, she referred to being touched on the bottom, but did not mention her vulva to the Accused. [ 81 .] The Accused then thanked both women and told them they were both so smart. G.-S. felt that the Accused did not appear to understand her complaint. [ 82 .] G.-S. and her friend then left the fitness club and drove to a park where they discussed what happened. They didn’t stay long

because G.-S. was feeling weird about the situation and how the conversation with the Accused did not seem to impress upon him any sense of responsibility on his part. [ 83 .] Not being sure what to do next G.-S. called her mother, told her what happened and sought her advice. The next day the two drove to Toronto where they visited G.-S.’ friend L.E.. G.-S. and H.L. told L.E. what had happened to them.

G.-S. was feeling bad that she thought that the Accused might be a person to take advantage of his position as a yoga instructor to touch a student inappropriately. [ 84 .] After calling a couple of health lines, G.-S. called a sexual assault helpline for assistance in determining if what had happened was sexual assault. After all of this discussion G.-S. decided that the police should be called. Ms. L.E. made the call for the two women, both of whom were crying by this time. [ 85 .] Two Toronto Police Service officers came to L.E.’s whereupon G.-S. and H.L. gave their stories to the officers together.

An officer told them either that night or the next day not to discuss the details with each other. G.-S. obeyed the direction. About a week and a-half later on September 15, 2009 G.-S. gave a formal, video recorded statement to the Peel Regional Police. [ 86 .] Between the time that the Toronto police officers took the initial complaint and the making of her video statement to the Peel Police, G.-S. and H.L. spoke to one another about the case.

However, their discussions were limited to their feelings and how the club owner Anne-Marie Baker had been calling H.L. , but not the details of the events themselves. [ 87 .] Early in her evidence, when asked what she did for a living, G.-S. described herself as a mediator.

Later, she identified herself as a full time student who volunteered as a mediator for a restorative justice organization in Kitchener. 2.3.2: Credibility Assessment Credibility of G.-S. [ 88 .] While giving her evidence, G.-S. was occasionally precise to such a degree as to leave one to wonder if she was being overly careful or was instead being obstinate and abstruse.

An example of this preciseness was her response about the inappropriate touching being over the clothes except for her face which was not clothed. [ 89 .] Many of her recollections and observations of the relevant events were different from those of H.L.. For example, H.L. described the touches she received as brief, but G.-S. described the touches H.L. received as much longer. G.-S. recalls that H.L. was touched during the “sit up” pose, but H.L. did not mention that pose or being touched during it. G.-S. recalled that the Accused touched both women`s faces, but H.L. did not mention that.

G.-S. said preceding some of the touching, the Accused said, “let`s extend that pose” but H.L. did not volunteer this, but neither was H.L. asked about it either. The differences in the two women’s testimony did not negatively impact on the honesty or reliability of either as a witness. Some discrepancies are to be expected. [ 90 .] G.-S.’ evidence also contained some inconsistencies. For example, at first she said the yoga studio door was closed, but later said it was open a one-foot crack.

Since most doors are about three to four feet wide at the most, this “crack” meant the door was open between a quarter and a third of the way. Another example is that in chief she described the duration of the inappropriate touching in terms of minutes for each but later agreed that each touch was only for a just a little longer than necessary, suggesting the time was measured in seconds, not minutes. She also described herself as a mediator, then modified that by saying she is a full-time student and volunteer mediator.

In considering these inconsistencies, amongst others, I do not find that they fatally undermined her credibility regarding the core events complained of. [ 91 .] G.-S. testified about the events as she independently recalled them. As with H.L. , it was submitted that all of the post-event discussion between the two women may have coloured the witness’ evidence so as to make the court unsure that the version G.-S. gave may have been adulterated. I disagree. If that were the case, I would have expected more synchronization between the two Complainants’ accounts. But that did not happen.

Each told it as they individually remembered it. While the gist is the same, namely that the accused touched each complainant on the vulva and/or buttocks without first asking, their recollections of the poses and the duration of the touches was different. I do not find that G.-S.’ testimony was influenced by her post-event discussions with H.L. or in H.L. ’s presence. [ 92 .] In assessing G.-S. as a witness, I find that she was careful and contemplative before answering. She was always honest. She was occasionally exact nearly to a fault.

While there were some inconsistencies, they did not create any scepticism in my mind regarding the bona fides of her evidence. Overall, I found G.-S. to be a reliable and credible witness. I accept her evidence in its entirety as it relates to what happened to her.

3.0: Did the Accused intentionally apply force to the Complainant? 3.1: Count #1 – S. S.-R. 3.1.1: Position of the Defence [ 93 .] The Defence submits that the highest

interpretation of the evidence is that while the Accused was demonstrating to the Complainant how to breathe correctly from the lower intestines, the tips of his fingers inadvertently came into contact with her upper vaginal area. 3.1.2: Position of the Crown [ 94 .] The Crown submits that there is no ambiguity and that they have proven beyond a reasonable doubt that the Accused wilfully applied force to the genital area of S.-R.. 3.1.3: Analysis [ 95 .] S. S.-R.was a credible and reliable witness. Although there some minor inconsistencies, none of them were material or gave me any cause for concern.

She was steadfast in the essence of her testimony. [ 96 .] On the totality of the evidence regarding this count, the Crown has proven beyond a reasonable doubt that the Accused intentionally applied force to S.-R.. The touching of her genitalia with his fingertips was neither incidental nor inadvertent. He took physical control of the Complainant. She did not guide or assist his movements. He put his fingertips directly on S.-R.’ vaginal labia and purposely kept them there until Mr. Baker entered the studio.

The touching with his fingertips was not fleeting, but an integral part of the entire period he held her. 3.2: Count #2 – H.L. 3.2.1: Position of the Defence [ 97 .] The Defence did not seriously dispute H.L.’s evidence concerning the issue of whether or not the Accused intentionally applied force to her. The Defence does not dispute that the Accused touched H.L. while she was engaged in yoga poses during his class on September 5, 2009.

However, the Defence submits that there is a reasonable doubt that he applied force to H.L. ’s vagina. 3.2.2: Position of the Crown [ 98 .] The Crown submits that the evidence establishes beyond a reasonable doubt that Mr. Kulkarni intentionally applied force to H.L. by touching her buttocks, anus and vaginal area over her clothes. 3.2.3: Analysis [ 99 .] Throughout the evidence, H.L. referred to being touched on the vagina over her clothes. In cross-examination, she agreed that the Accused never actually touched her vagina but instead touched her vulva. The vagina is one of the internal female sexual organs.

The vulva is the external portion of the female reproductive anatomy consisting, amongst other features, of the labia (both majora and minora ) and the opening to, but the actual, vagina. The use of the word “vagina” is often used in a generic sense to communicate the female crotch. In the case before me, all of the touching is said to have been external, over the clothed bodies of the Complainants and non-penetrative. Accordingly, any time when the word “vagina” was used, I understood it to be in fact the vulva.

I agree with the Defence that there is no evidence that the vagina per se was touched by the Accused. [ 100 .] The touching was not accidental, but purposeful. The application of force by the Accused happened several times. He was in control of the Complainant when he applied the force. The pressure used was more than the gentle, guiding kind H.L. had experienced any other time an instructor touched her. [ 101 .] On the evidence, I find that the Crown has proven beyond a reasonable doubt that the Accused intentionally applied force to H.L. as follows:

(

a) Twice during the “downward dog” pose. The first time the Accused placed a hand on H.L. ’s buttocks for a couple of seconds and poked her anus while telling her to lift her tail. The second time the Accused briefly hooked his arm around her waist and told her again to lift her tail; (

b) The Accused put a hand between H.L. ’s legs, swiped her crotch and rubbed her vulva with his palm firmly over her clothing for up to thirty seconds during the “cat cow” pose. He moved his hand in rhythm to his instructions for H.L. to inhale then exhale. He also touched her buttocks again; and (

c) The Accused grabbed, squeezed and lifted H.L. ’s buttocks causing her feet to leave the ground during the “bridge” pose. He held onto her as she descended to the floor, telling her to move slowly. Once on the ground he kept his hands on her buttocks.

This event lasted about a minute. 3.3: Count #3 – G.-S. 3.3.1: Position of the Defence [ 102 .] The Defence does not dispute that the Accused touched G.-S. while she was engaged in yoga poses during his class on September 5, 2009. 3.3.2: Position of the Crown [ 103 .] Given the position taken by the Defence, it was not necessary for the Crown to address this issue. 3.3.3: Analysis [ 104 .] There is no suggestion that the touching of G.-S. by the Accused was inadvertent or incidental. The touching was deliberate and accompanied by verbal instruction.

The application of force by the Accused was repeated several times. Mr. Kulkarni was in control of the G.-S. when he applied the force to her. [ 105 .] I find that the Crown has proven beyond a reasonable doubt that the Accused intentionally applied force to G.-S. as follows: (

a) The Accused cupped her vulva and held on to her buttock while pushing and pulling her and giving instructions to extend her position during the “cat” pose; (

b) The Accused lifted her by holding her buttocks with both hands during the “sit up” pose while telling her that the longer she held it up the better the benefit; (

c) During the “praying” pose and while telling her to extend the pose, the Accused used both hands on her back to push her chest further forward to the point that she came out of the pose entirely; (

d) At various times when the Accused touched G.-S.’ face and/or forehead; and (

e) While she was in the “warrior/triangle” pose, the Accused put one hand on her back and the other firmly on her buttock. 4.0: Did the Complainant not consent to the application of force? 4.0.1: General

[ 106 .] It is for the Crown to prove beyond a reasonable doubt that each Complainant did not consent to the application of force by the Accused. Consent, or the absence of consent, is a state of mind of the Complainant towards the application of force at the time it occurred. Consent means the voluntary agreement of the Complainant to take

part in the activity that happened in each case. [ 107 .] In all three counts, the Complainant understood and accepted the role of the Accused as a yoga instructor and this included an agreement that they could expect physical contact from him to teach them proper or better yoga techniques and poses. Instructors also touch students to prevent them from hurting themselves. This expectation was codified in the health rules and regulations as set out in Exhibit #1.

It was further understood by each of them that any contact would be limited to an extremity or peripheral aspect of the body and not any intimate area. [ 108 .] In each case, the Complainant had previous experience being touched by this Accused and other instructors. All of them said that in the past instructors, including the Accused, had first asked permission before touching them. S.-R. and H.L. were in prior classes with the Accused wherein he asked permission to touch.

G.-S. was asked to be touched by the Accused earlier in the only class she ever had with him. [ 109 .] In each case, the only time the Accused did not ask permission from any of the Complainants was when he touched them in the manner complained of as set out, above. [ 110 .] In no case did the Complainant request the Accused to touch her in an intimate area such as the vulva, anus, or buttocks. [ 111 .] In no case did any Complainant say or do anything to the Accused while being touched in the manners described. Nor did any of them do anything while the Accused touched them.

On their own, acquiescence and compliance signal only a failure to object; they do not constitute consent. From the evidence, yoga students expect to be touched to correct poses or enhance the benefit of same, but experience and the club rules state that the instructor is to first ask each student if it is alright to touch them. This would be particularly so whenever such touching would encroach upon, or enter, the genital and anal areas of the student. No student would want a private part of the body touched without informed consent.

If touched in such a place without notice, it is natural for a student to wonder whether such a touching was necessary for the Accused to carry out his duties. Wishing to be instructed, wishing to believe that one’s instructor would not touch one for a nefarious purpose, and wishing to concentrate on one’s exercise/pose, I am not at all surprised that none of them immediately protested. It took time for each Complainant to question themselves why they were so touched and to absorb and act upon the realization that they had been touched inappropriately. 4.1: Count #1 – S.

S.-R. 4.1.1: Position of the Defence [ 112 .] S.-R. approached the Accused after class to show her how to do deep breathing. At her request he showed her. The Defence submits S.-R. consented to the application of force. 4.1.2: Position of the Crown [ 113 .] The Crown submits that S.-R. consented to be touched, but that her consent did not extend to being touched on her crotch. 4.1.3: Analysis [ 114 .] I find that S. S.-R. consented to the Accused touching her in order demonstrate the deep breathing technique.

She approached him because she had difficulty in comprehending the technique despite his verbal instructions. Even though (

a) she did not explicitly invite him to touch her, and (

b) he did not explicitly ask if he could touch her, S.-R.’s consent to be touched was communicated by the entirety of the circumstances, which included asking for his assistance and having being touched by the Accused in the past for instructional purposes. [ 115 .] Notwithstanding the consent of Ms. S.-R. to be touched by the Accused for instructional reasons, the Crown has proven beyond a reasonable doubt that her consent did not extend to touching her crotch for any reason. S.-R. and the Accused had a professional relationship only.

There was no personal connection and no reason for her to let him touch her crotch for any reason. There is no evidence that touching S.-R. was needed to prevent injury. After Mr. Baker left, S.-R. made it perfectly clear that further touching was unwelcome because when the Accused approached her, she said, “You know what? I don’t feel comfortable” and left shortly after his

explanation that he was only trying to help. [ 116 .] I find that the absence of any complaint or gesture by S.-R. to the Accused to desist from touching her vulva does no raise a reasonable doubt that she did not consent. In my view, her failure to object merely reflected her confusion and discomfort as to what was happening. It will be recalled that while being touched she told herself that “this isn’t happening.” [ 117 .] In these circumstances, I find that the Crown has proven beyond a reasonable doubt that S.

S.-R. did not consent to being touched on the vulva by the Accused for any reason. 4.2: Count #2 – H.L. 4.2.1: Position of the Defence [ 118 .] The Defence argued that H.L. consented to being touched by the Accused.

She understood from her extensive yoga experience that it is common for instructors to touch students to correct and enhance yoga poses or to prevent injury. 4.2.2: Position of the Crown [ 119 .] The Crown submits that H.L.’s consent was limited to peripheral parts of her body only, and not to her buttocks or vulva. 4.2.3: Analysis [ 120 .] On the evidence of H.L., she was fully prepared to allow the Accused to touch her on the extremities to assist her in her yoga experience. H.L. was not injured or in jeopardy of hurting herself.

To the contrary, the Accused told her how flexible she was. [ 121 .] H.L.’s relationship with the Accused was strictly business and not personal in any way. There is no evidence to suggest that she welcomed being touched by the Accused in the way she described. Her silence and acquiescence during the impugned activity was explained by her.

She said she was confused, was trying to look past his behaviour and concentrate on her poses, and was influenced by G.-S.’ silence. [ 122 .] On the totality of the evidence the Crown has proven beyond a reasonable doubt that H.L. did not consen to being touched by the Accused on vulva, anus, or buttocks. 4.3: Count #3 – G.-S. 4.3.1: Position of the Defence [ 123 .] The Defence position with respect to G.-S. is the same as that taken with H.L. .

That is, G.-S. consented to be touched for instructional purposes. 4.3.2: Position of the Crown [ 124 .] The Crown position regarding G.-S. is the same as its position re H.L., namely that G.-S.’ consent did not extend beyond the periphery of her body to her private areas such as her buttocks and vulva. 4.3.3: Analysis [ 125 .] G.-S. understood that from time to time yoga instructors touch students. Indeed, the Accused had asked her earlier in the class if he could touch her to correct a pose, to which she agreed.

She was, however, firm that a yoga instructor never needs to touch a student on the chest, buttocks, or vulva for any reason. There is nothing to contradict this evidence and I accept it. There is no evidence G.-S. was injured or on the cusp of overdoing it. Indeed, her evidence was that in the prayer pose, it was the Accused who pushed her to the point where she lost control of the pose. By pushing her out of control of the pose, it was the Accused who in fact created a risk of injury to her.

[126.] G.-S.’ relationship with Mr. Kulkarni was purely professional. In fact, they were total strangers before this particular class. There is no evidence that G.-S. was interested in the Accused in any personal way. Her failure to complain or communicate herdispleasure or concern to the Accused during the activity does not raise a reasonable doubt in my mind that that she did not consent.

Iaccept her explanation that she was confused by his conduct and did not see or hear her friend, H.L. , object at the time. [127.] I find that the Crown has proved beyond a reasonable doubt that G.-S. did not consent, to having her buttocks or vulva touchedby the Accused. 5.0: Did the Accused honestly believe that the Complainant consented to the force applied? 5.0.1: General [128.] The Accused in this case says that he honestly believed that each Complainant consented to the application of force now beingcomplained of.

He does not have to prove that he honestly believed that the Complainant voluntarily participated in the activity withwhich he is charged. It is the duty of the Crown to prove beyond a reasonable doubt that Mr. Kulkarni had no such belief. [129.] The issue of honest belief as to consent involves an assessment of the Accused’s state of mind, which requires the court toconsider the totality of the circumstances in each charge including the words and conduct of each party before, during, and after theimpugned behaviour. As the Supreme Court said in R. v.

Ewanchuk (1999), (SCC), 131 C.C.C. (3d) 481 at page 504,“the question which must be answered is whether the Accused honestly believed that the complainant had communicated consent. Anyother belief, however honestly held, is not a defence.” (emphasis in original). [130.] A belief by the Accused that the Complainant’s silence, passivity, or ambiguous conduct, if any, amounted to consent is not adefence: R. v.

Ewanchuk, supra. at page 501. [131.] The court must consider the nature of what happened between the Accused and the Complainant, any remarks or gestures madeby either party at the time, and any other circumstance that indicated that the Accused honestly believed that the Complainant voluntarilyallowed him to touch her in the manner described. [132.] An honest belief as to consent cannot exist if the Accused saw the risk that the Complainant would not agree or want toparticipate in the activity complained of but went ahead in spite of that risk.

There can be no honest belief as to consent if the Accusedwas aware that he needed to find out whether the Complainant would agree to the activity now complained of, but did not because hedidn’t want to know the truth. Nor can there be an honest belief in the Complainant’s willing participation unless the Accused took thesteps that a reasonable person would take in the circumstances known to him at the time to find out whether or not the Complainantwould agree. [133.] While the belief of the Accused must be honest, it need not be reasonable.

However, the reasonableness of the belief is a factorto consider in deciding whether the Accused actually had the honest belief he claims. One must consider the totality of thecircumstances in each charge to decide this issue. 5.1: Count #1 – S. S.-R. 5.1.1: Position of the Defence [134.] The Defence submits that the Accused honestly believed S. S.-R. consented to the application of force, or that there is areasonable doubt that he honestly believed she consented.

This is based on his prior experience with her in touching her to provide yogainstruction and her request on this occasion to be instructed how to properly execute the yoga breathing technique. Her compliance andfailure to object are said to have reinforced his honest belief as to S.-R.’s consent.

5.1.2: Position of the Crown [ 135 .] The Crown submits that in previous classes with Accused always asked permission before touching S.-R. but did not on the one occasion he touched her in the most personal of areas.

The Crown submits that given the Accused’s position as a yoga instructor, his impersonal relationship with S.-R., and his failure to seek permission when he always asked for it before, the Accused did not honestly believe that S.-R. wished to be touched on her crotch by him. 5.1.3: Analysis [ 136 .] In the past, the Accused asked S.-R.’ permission to touch her in order to demonstrate proper yoga techniques. But this time, when he touched her vulva, he did not.

Even though S.-R. was the one who invited the Accused to show her how to breathe properly, I do not find that he honestly thought that this was an invitation to encroach upon and touch her vulva. He had never touched S.-R. in the crotch before. There was no evidence to show that it was necessary for him to do so on this occasion in order to show her how to breathe properly. [ 137 .] The Accused was aware that before touching students he needed to ask their permission. He knew it would unreasonable to touch the private area of a student without first making sure it was alright.

If the Accused believed that it was necessary to place his fingers on S.-R.’s vulva in order to provide proper yoga instruction, he knew that he had a duty to ask, and she had the right to asked, first but he did not. I find that the Accused did not ask S.-R. if he could touch her in her crotch because he knew that she would have said no for any reason. [ 138 .] Given the Accused’s knowledge that he needed to first ask before touching a yoga student, he could not, and did not, honestly think that S.-R.’s silence or failure to resist was a green light to continue. [ 139 .] In the case of S.

S.-R., I find that the Crown has proven beyond a reasonable doubt that the Accused did not honestly believe that she consented to being touched on her vulva by his fingers. 5.2: Count #2 – H.L. 5.2.1: Position of the Defence [ 140 .] The Defence submits that either the Accused honestly believed H.L. consented to the application of force or there is a reasonable doubt that he did. This is based on his prior experience of touching H.L. to provide yoga instruction.

The Defence submits that H.L.’s failure to communicate any objection reinforced his honest belief as to H.L.’s consent. 5.2.2: Position of the Crown [ 141 .] During the only other class with H.L., the Accused sought her permission before touching her and even then he did not touch H.L. anywhere other than on her extremities. The only time the Accused did not ask H.L. for permission to touch her was when he touched her vulva, anus, and buttocks.

The Crown submits that in these circumstances the Accused did not honestly believe that H.L. consented to being touched on her vulva, anus, and buttocks. 5.2.3: Analysis [ 142 .] H.L. is an extremely experienced yoga practitioner. The Accused by all accounts is also experienced and knowledgeable in yoga. If he were not, it is doubtful that he would be a yoga instructor.

Equally, since he was an instructor at the B3 club, he must have been aware of the rules and regulations, including the rule that instructors may at times request to physically correct or assist the student’s position or routine to ensure proper form. In other words, as an instructor, the Accused would know that he had to ask before he touched a student, even for instructional purposes. [ 143 .] In previous class, the Accused had asked H.L. ’s permission to touch her to aid her yoga.

In the past he had only ever touched H.L. on the periphery of her body. [ 144 .] Given their prior individual and collective yoga experience and knowledge, it would be honest and reasonable that the Accused would believe that H.L. would agree to allow him to touch her in such routine and common places such as the hands, arms, feet, legs and other similar parts of her body in order to guide her. The same cannot be said on this to touching her in an intimate place.

[ 145 .] If in the past the Accused had touched H.L. in the manner complained of knowing that she agreed, then I would have less difficulty in finding that her failure to object, complain, or resist on this occasion might raise a reasonable doubt as to the honesty of his belief of consent on this occasion. However, the evidence is that he never touched her buttocks, anus, or vulva before.

He had no prior experience with touching H.L. ’s private areas to help inform a belief that it would be acceptable to do so without first asking at the time of these events. [ 146 .] The Accused argues that he honestly believed H.L. communicated her consent. The basis for this submission is that she didn’t stop him or complain after he first started touching her in the ways she described.

This, of course, does not provide a basis for honestly believing H.L. would agree to the first such touch. [ 147 .] Nor does her failure to complain or resist after the first touch offer any reasonable doubt as the purported honesty of his belief in consent for any subsequent touching of her vulva, anus, or buttocks. To so find would be to ignore his knowledge of his duty to first seek permission before touching any student.

It would also ignore firstly his experience with H.L. wherein he had hitherto sought her permission before touching her and secondly that he had never touched her in an intimate zone before. [ 148 .] I find that the Accused did not have an honest belief as to consent to touch H.L. on her buttocks, anus, or vulva. He knew that if he sought out her permission to do so, she would have denied such permission.

He saw the risk that H.L. would say no and went ahead anyway. [ 149 .] The Crown has proven beyond a reasonable doubt that the Accused did not have an honest belief as to consent in the case of H.L. . 5.3: Count #3 – G.-S. 5.3.1: Position of the Defence [ 150 .] The Defence submits that either the Accused honestly believed G.-S. consented to being touched on her vulva and buttocks or, in the alternative, there is a reasonable doubt that he did.

The Defence submits that G.-S.’ failure to communicate any objection justified his honest belief as to her consent. 5.3.2: Position of the Crown [ 151 .] The Crown submits that in these circumstances the Accused did not honestly believe that G.-S. consented to being touched on her vulva and buttocks. 5.3.3: Analysis [ 152 .] G.-S. and the Accused were strangers until September 5, 2009. Early in the session the Accused asked her if he could touch her shoulder to help with a pose.

Thus the Accused sought specific consent to touch a neutral and innocuous part of her body, but yet did not later ask to touch her groin, the most intimate and personal place. [ 153 .] From G.-S.’ evidence, it is never necessary for an instructor to touch the chest, vulva or buttocks of a student. Nor has any other instructor touched her in those places. The Accused had a duty to ask G.-S. for permission to touch her. He complied with that duty earlier in the lesson, but failed to exercise it when he touched her vulva and buttocks. The only conclusion I can draw for Mr.

Kulkarni failing to ask the permission that he was mandated by his obligations as an instructor to seek was that he knew Ms. G.-S. would not have agreed to have him, a stranger with no instructional imperative, touch her groin and buttocks. [ 154 .] Ms. G.-S. did not by word or gesture signal the Accused to stop what he was doing. In light of his duties to seek permission before touching a student at any time and the absence of any experience with G.-S. before to this session, the Accused could not honestly

view G.-S.’ silence as acceptance or invitation. To do so would require Mr.

Kulkarni to both abdicate his responsibility as an instructor and also deliberately ignore the rules of the club he taught at. [ 155 .] The Crown has proven beyond a reasonable doubt that the Accused did not honestly believe that G.-S. consented to being touched by him on her vulva and buttocks. 6.0: Did the Accused apply force to the Complainant in circumstances of a sexual nature? 6.0.1: General [ 156 .] Sexual assault is general intent crime which is committed in circumstances of a sexual nature such that the sexual integrity of the complainant is violated.

The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one. The burden is upon the Crown to prove beyond a reasonable doubt that a reasonable observer, taking all of the circumstances into account, would view the conduct as sexual. [ 157 .] In deciding, if possible, whether the behaviour is sexual or not a number of factors must be considered including the part(

s) of the body touched, the nature of the contact, the situation within which it occurred, the words and gestures accompanying the act, the presence or absence of threats, any motive or sexual gratification, the nature of the relationship between the complainant and the accused, and all other circumstances surrounding the conduct. 6.1: Count #1 – S. S.-R. 6.1.1: Position of the Defence [ 158 .] The Defence submits that even though the Accused touched S.-R.’ vulva, the nature of the contact was not sexual, but was educational. The touching was done to improve S.-R.’ yoga breathing skill and nothing more.

In the alternative, the Defence submits that the evidence regarding the nature of the touching is ambiguous enough to raise a reasonable doubt that it was sexual. 6.1.2: Position of the Crown [ 159 .] The Crown submits that the touching of S.-R. by the Accused was sexual in nature. 6.1.3: Analysis [ 160 .] There are a number of circumstances to consider, some of which may speak to the touching being educational or non-sexual while others could be viewed as showing the touching was sexual. I have considered all of the circumstances and in particular the following evidence: (

a) The instructor/student nature of the parties’ relationship; (

b) S.-R.’ equivocation at the time as to whether the touching was sexual or not; (

c) S.-R. did not feel any arousal from the Accused while he was holding her close and firmly from behind; (

d) The context of the touching which included: (i.) It followed a request by S.-R. to be shown how to breathe deeply; (ii.) It occurred at a yoga studio, but after the other students had left the room; (iii.) The Accused knew the owners and other club members were on the premises, thereby running the risk of detection; (iv.) There was simultaneous verbal instruction by the Accused; (v.) The part of the body touched was clearly private, intimate and sexual;

(vi.) The Accused’s body and fingertips were held tightly against S.-R.; and (vii.) Despite asking S.-R.’ permission in the past to touch her in non-sexual areas of her body, this time the Accused did not ask S.-R. if he could touch her vulva before doing so. [ 161 .] I found S.-R. to be unequivocal about the nature of what was going on. When the Accused was holding her and touching her vulva she told herself, “this isn’t happening.” She was worried he would touch her breasts, too.

While she briefly wondered if his touching of her vulva was necessary to teach her the correct technique, she called to mind that any other time the Accused had touched her to show her the proper way to do things, he asked first. When the Accused re-approached her after Mr. Baker left, she told Mr. Kulkarni she didn’t feel comfortable.

S.-R. may have had an internal dialogue in an attempt to rationalize why he was touching her in the way he did, but she clearly believed that the touching was sexual. [ 162 .] While the presence of an erection would be a clear manifestation of sexual gratification by the Accused, the absence of feeling an erection is of limited assistance. There is no evidence the Accused was capable of achieving an erection.

Physical arousal is not a sine qua non for sexual intent or sexual interest. [ 163 .] The risk of detection by someone coming into the room was diminished by the translucent quality of the exterior wall thereby allowing the opportunity of seeing the shadows of approaching individuals. [ 164 .] In assessing the context of the touching, I take into account my earlier findings that Mr. Kulkarni intentionally touched S.-R. on her vulva without her consent, knowing full well that he was supposed to because any other time he touched her for instructional reasons he asked first.

I find that the simultaneous verbal instructions given by the Accused while holding S.-R. was a means of projecting a false aura of legitimacy disguising the true nature of the touching. [ 165 .] In considering the totality of the circumstances, S.-R.’ sexual integrity was infringed by the Accused. Had any reasonable person borne witness to the events as described by S.-R., it would be apparent that the touching of her vulva was sexual in nature. [ 166 .] I find that the Crown has proven beyond a reasonable doubt that the nature of the touching of S.

S.-R. by the Accused was sexual in nature. 6.2: Counts #2 and #3 – H.L. and G.-S. 6.2.0: General [ 167 .] The circumstances of counts 2 and 3 are the same thus it is unnecessary to deal with the question of the nature of the touching of each Complainant separately. Accordingly, I will roll up the incidents involving H.L. and G.-S. together for this particular issue. 6.2.1: Position of the Defence [ 168 .] The Defence submits that even though the Accused may have touched H.L. ’s vulva, anus and buttocks and may have touched G.-S.’ vulva and buttocks, the nature of the contact was not sexual.

The touching was done to extend their poses and increase the benefits of yoga. The Defence also submits that the evidence regarding the nature of the touching is of such a quality as to raise a reasonable doubt that it was sexual. 6.2.2: Position of the Crown [ 169 .] The Crown agrees with the Defence that when the Accused hooked his arm around H.L. ’s waist in the “downward dog” pose and told her lift her tail, there was no sexual purpose in this instance because no private areas were touched at that time.

Similarly, the crown agrees that there was no sexual nature to the Accused touching G.-S.’ face or pushing her out of the “prayer” pose. Otherwise, the Crown submits that in those instances where the Accused touched the anus, buttocks or vulva of either Complainant, the nature of the touching was sexual. 6.2.3: Analysis [ 170 .] I have considered all of the circumstances in which H.L. and G.-S. were touched on their intimate areas and in particular the

following evidence: (

a) Each complainant had only a business relationship with the Accused; (

b) The Complainants equivocation at the time as to whether the touching was sexual or not; (

c) The pressure of the touching such as rubbing the vulva and poking at H.L. ’s anus being greater that the gentle, guiding touch expected from a yoga instructor; (

d) That touching of an intimate area such as the chest, buttocks or vulva is not necessary to teach yoga; (

e) The context of the touching including: (i.) It occurred during a yoga class; (ii.) The touching took place in full view of another student; (iii.) The Accused knew the owners and other club members were on the premises, thereby running the risk of detection; (iv.) A statement by the Accused that he found both H.L. and G.-S. to be very flexible; (v.) Despite asking for permission in the past to touch the Complainant in non-sexual areas of her body, this time the Accused did not ask he if he could touch her genitalia and buttocks before doing so; (vi.) Some of the touching was preceded by statements by the Accused such as “let’s extend that pose;” (vii.) The touching was accompanied by concurrent verbal instructions; (

f) During the discussion in the parking lot, the Accused (i.) Said such things as “What should I do next time?” and “I didn’t think I had to ask if I could touch your gluteus maximus”; and (ii.) Told the Complainants he wanted them to experience the full benefit of the poses because they were so flexible; [ 171 .] The risk of detection by someone coming into the room was diminished by the translucent quality of the exterior wall thereby allowing the opportunity of seeing the shadows of approaching individuals. [ 172 .] The only times the Accused did not ask for permission to touch either Complainant was when he touched her most private places.

By doing this, Mr. Kulkarni violated the club rules and the common, universal yoga convention that the instructor is expected to first ask permission before touching the student. [ 173 .] It was submitted that at the time of the incident neither H.L. nor G.-S. knew for sure the touching was sexual. However, as I have found earlier in my reasons, each Complainant was in a state of disbelief, confusion, or denial. When circumstances permitted reflection, it was clear to each of them that the touching was sexual . [ 174 .] Great emphasis was placed by the Defence upon (

a) the verbal instructions that accompanied the touches and (

b) the Accused’s statements in the parking lot to the effect that he didn’t realize he had done anything inappropriate. It seemed to G.-S. that he didn’t accept any responsibility, suggesting perhaps that he did not perceive that what he did was sexual. [ 175 .] I find that the verbal instructions and his professed naivety were smoke screens designed to camouflage his true purpose when touching of each Complainant in her private zones. In the parking lot, Mr. Kulkarni said he didn’t think he had to ask to touch their bottoms. I disbelieve him.

His statement is contrary to the club rules, contrary to his prior experience with each Complainant, and contrary to any prior yoga experience of either H.L. or G.-S., each of whom is a knowledgeable and advanced yoga student. Mr. Kulkarni’s feigned innoce

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