R. v. Mayuran, 2011 ONCJ 603

COURT FILE No.: Halton 10-1067 Citation: R. v. Mayuran , 2011 ONCJ 603 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — THUSITHA MAYURAN Before Justice S. O’Connell Heard on May 20 th , July 28 th , September 7 th , 2011 Reasons for Judgment released on October 18 th , 2011 Ms Lori Jago .............................................................................................................. for the Crown Mr. Robert Brooks .................................................................... for the accused, Thusitha Mayuran O’Connell J.: Introduction: [ 1 ] The defendant, Ms. Thusitha Mayuran, is charged with five counts of fraud, contrary to section 380 (1) (

a) of the Criminal Code . As the value of the alleged fraud exceeds $5,000.00 all five counts are straight indictable offences. The defendant has admitted jurisdiction, date and identity. The defendant has also admitted to committing the wrongful acts that comprise the physical elements or the actus reus of the offence of fraud. The determinative issue in this case is whether the defendant had the mens rea or the mental awareness of the prohibited acts which is necessary for a finding of guilt. Overview: [ 2 ] The Crown alleges that during the fall of 2008, Ms. Mayuran initiated an elaborate cheque kiting scheme.

Ms. Mayuran made five separate on-line applications to the Ontario Ministry of Government Services and obtained five separate business names for five sole proprietorships. From August of 2008 to January of 2009, Ms. Mayuran used the business papers to open multiple business chequing accounts at several different banks and branches. Over the next several months, Ms. Mayuran registered intermittent transactions on the accounts.

This activity legitimized the various accounts and established a “no hold” policy for deposited cheques of no more than $5,000.00. [ 3 ] During a twelve day period from January 29 to February 9, 2009, Ms. Mayuran made several worthless deposits to each of these accounts using cheques issued by fictitious companies. Each of the cheques was below the $5,000.00 threshold that the banks would require a “hold”. The cheques required approximately two days to clear the issuing bank. The worthless cheques falsely built up the balance of the accounts. Ms Mayuran deposited approximately eighty cheques in total. [ 4 ] Ms.

Mayuran then made large cash withdrawals and transfers from the accounts before the cheques cleared the issuing banks. The bad cheques were later returned from the banks and the negative balances were applied to Ms. Mayuran’s accounts. Numerous efforts were made by the banks to collect the outstanding balances by telephoning Ms. Mayuran. Ms. Mayuran avoided the banks efforts to collect. [ 5 ] The Bank of Nova Scotia or Scotia Bank suffered a loss of $230,655.54. In particular, the Milton branch of the Bank of Nova Scotia suffered a loss of $157,765.55.

The CIBC suffered a loss of $34,855.00 at an Oakville branch and $29,120.00 at their Milton branch. The entire loss was approximately $273,000.00. The entire time period during which these events occurred lasted a period of approximately eight months. [ 6 ] Ms. Mayuran admits to establishing the five businesses, opening up all of the bank accounts, moving money from account to account, and depositing cheques into the various accounts. She further admits to withdrawing in excess of $250,000.00 in

cash from these accounts. However, she submits that she did not know that what she was doing was unlawful and fraudulent. She submits that she was deceived by criminals who profited from this scheme at her expense. [ 7 ] The issue therefore, is whether Ms. Mayuran was aware or had knowledge of the prohibited acts and whether she was aware that the prohibited acts could have as a consequence the deprivation of others. In the alternative, the issue is whether Ms. Mayuran was wilfully blind to the prohibited acts. The Evidence: [ 8 ] Ms Mayuran made two voluntary statements to the police.

Both of these statements were admitted into evidence on consent and the transcripts and video/audio tapes were entered as exhibits to the proceedings. Both of these statements were made to Detective Constable Stephen Martin, the investigating officer. D.C. Martin has been a police officer for twenty-six years and he is a member of the fraud unit with the Halton Regional Police Service. D.C. Martin took the first statement from Ms Mayuran in March of 2010 and the second statement in June of 2010. [ 9 ] In the first statement, made on March 25, 2010, Ms.

Mayuran admitted to rotating cheques between bank accounts to inflate the balance on the accounts and then withdrawing the cash. She states that she did this to get her credit rating up. In response to D.C. Martin’s question about her involvement in processing a number of cheques through various accounts and then withdrawing large amounts of cash, Ms Mayuran stated the following: ‘What it was supposed to do was I wanted to rotate cheques between two accounts to get my credit rating up, cause my credit rating was pretty low.

But then I got stuck for cash and I started to get cash out and it just kept letting me.” [ 10 ] Ms Mayuran stated that she made all of the withdrawals from all of the accounts that she had set up and in particular, she stated that she had done so between January 30, 2009 and February 9, 2009, when most if not all of the money had disappeared. She stated that she had taken “a lot” from these accounts but seemed surprised when advised by D.C. Martin that the total amount was approximately $273,000.00. She estimated that the amount was approximately $150,00.00 [ 11 ] When asked where all the money went, Ms.

Mayuran told D.C. Martin that she spent most of it at the casino. She stated that there was nobody else involved in the scheme, that nobody convinced her to do this, and that nobody had talked her into it. She further denied any involvement by her husband. [ 12 ] In her second video and audio taped statement made to D.C. Martin on June 18, 2010, Ms. Mayuran explained a very different version of the events. This statement was given after she retained counsel, and was arranged through counsel. [ 13 ] In this statement, Ms. Mayuran advised D.C.

Martin that she had not been truthful in her first statement and in fact, she was directed by two other individuals named, “Esan” and “Thiva.” She again stated that she got involved with these people because she wanted to get her credit rating up. They told her that all she had to do was open up the business accounts and then move the money around in the various accounts. They gave her the cheques to deposit and then drove her around to all of the banks, where she physically withdrew the money after the accounts were inflated and she gave the cash to them.

She said that they were the masterminds and that she was just a “puppet.” She admitted to lying in her first statement and she said that once the banks started calling her, Thiva threatened her and her family if she stopped withdrawing the cash. [ 14 ] Ms Mayuran did not have a last name for Thiva and or Esan. She stated that she did not know that what she was doing was illegal and that she trusted “the wrong people.” She said that she just wanted to increase her credit rating. [ 15 ] Ms. Mayuran provided D.C. Martin with an address for someone known as Yogeswaran Ganeshalingam, in Brampton, Ontario. D.C.

Martin attended at Mr. Ganeshalingam’s home. Mr. Ganeshalingam identified himself and said he was also known as Esan. He initially admitted to knowing Ms. Mayuran as “Thusi” but when advised that the inquiry was in connection with a fraud investigation, he said he did not know Ms Mayuran. He denied knowing any person known as “Thiva”. [ 16 ] D.C. Martin made several inquiries through the local police data base about “Thiva”, including the nick-name data base, but was not successful in finding a match. He testified that he also made inquiries through the license plate provided by Ms.

Mayuran and was unable to track down Thiva or any connection between the person who owned the car and Ms. Mayuran. He could not find any additional information to corroborate that Thiva existed. [ 17 ] Nevertheless, D.C. Martin testified in cross-examination that the “kiting” scheme was sophisticated and well-timed and that he believed other people were involved. Despite investigative efforts, he could not locate or confirm the existence of Thiva or find any evidence to connect Esan to the fraud. D.C.

Martin also testified that he was curious as to whether there was a Tamil Tiger connection to the scheme, given that Ms. Mayuran is of Tamil descent and the Tamil Tigers quite often utilized “kiting” schemes to raise funds for their activities. [ 18 ] D. C. Martin also obtained a Consumer Credit Report of Ms. Mayuran, dated February 17, 2009, which was filed as an exhibit in these proceedings. The credit report indicated that Ms. Mayuran had approximately $17,000.00 in debt at the time of the alleged offences. All payments were being made on consistent and regular basis and the report indicated that Ms.

Mayuran had a good credit rating. D. C. Martin obtained a subsequent credit report approximately one year later in February of 2010 (after the kiting scheme was discovered) and at that time, Ms. Mayuran’s credit rating had significantly changed and she now has a very poor credit rating.

[ 19 ] The only defence evidence in this case is that of the defendant, Ms. Mayuran. Ms. Mayuran’s evidence at trial was somewhat similar to the second statement that she gave to the police in June of 2010. [ 20 ] Ms. Mayuran is 26 years old and the mother of two young children. She resides in Mississauga with her children and her parents. She is separated from her husband who came to Canada from Sri Lanka approximately five years ago. She grew up in Canada, having emigrated from Sri Lanka when she was six years old. She has a university degree.

She has worked as a bookkeeper doing data entry for several companies and she is currently employed in customer servicing and purchasing at J. and J. Display Sales in Mississauga. [ 21 ] Ms Mayuran testified in her examination in chief that she met Esan through her husband and that Esan was an acquaintance of her husband.

She testified that she was trying to improve her credit rating and that Esan told her that “there are people prepared to move money around and cheques around between your own accounts to get the rating up.” He advised her that all she had to do was open the accounts and that all they were going to do was move money within the accounts to get her rating up. [ 22 ] Ms Mayuran testified that upon being advised of this scheme, the “first thing” that she asked was whether the police were going to get involved.

She testified that in response to this question, they [presumably Esan and Thiva] told her that there was nothing to worry about and that all they were doing was moving money around in her own accounts. She testified that she trusted them and gave the following evidence in her direct examination: “From that point on I opened the accounts. I handed in every bank, gave all their information in like a portfolio, like a folder, and I handed that over and they said you have to order cheques. So, I ordered the cheques and they said to make it easier on them to sign off on cheques.

So, I did that, too, signed off on about half the cheques, gave it to them and they moved money around and at times would come to me either with cash, certified cheque or another like a business cheque or bank draft. I think it was.

Yeah, it was certified-and they would give it to me and tell me where to go deposit it or sometimes go withdraw this amount of money and we’ll pick it up later and that’s what happened for about I don’t know maybe eight or nine months this is what happened.” (Lines 9 to 21 of transcript dated May 20, 2011.) [ 23 ] Ms Mayuran testified that after approximately eight or nine months, Thiva and Esan directed her to start taking the cash out of the various bank accounts.

She testified that Thiva drove her around to all of the Scotia and CIBC accounts and told her to withdraw various amounts of cash, never exceeding $5,000.00. Ms Mayuran testified that because she had been doing this for about nine months, she trusted them and she thought that “they were speeding things up to get the credit rating up.” [ 24 ] Ms Mayuran then testified to the following: “And then the banks started calling.

After the Scotia Bank and the CIBC got hit, got hit meaning suffered, the bank manager started calling and everybody started calling me and so I called them and said, “Something’s up.” I called Esan, “Something’s up.” May 20 th , 2011 transcript, page 8, lines 4 to 8 “After the banks started calling me I got- I started to get nervous because they were asking me for all this money and I-for me the only contact for Thiva was through Esan. So I called up Esan and said that-the money, they want the money back, right? When’s it going to be deposited back the way it usually is? And, he said, “No, no, no.

It’ll be okay, don’t worry, don’t worry. And that was the last time I talked to Esan., After that they just came back and said okay we’re going to do the next and the next banks. They tried like but it got frozen so that was just two banks that, suffered.” May 20 th , 2011 transcript, page 8, lines 30 to 33, page 9, lines 1 to 7 [ 25 ] Ms Mayuran testified that she then started saying no to Thiva and Esan because they did show up again and wanted to do the rest of the banks.

She testified that when she refused initially “they said we’ll come after you.” She testified that they said to her “you’ve got kids” and for her that was enough, “that was enough to scare her to take the money out.” She testified that the banks continued to call her and both Thiva and Esan came back and told her that they were “going to do the next bank.” However, when they went to that bank, the accounts were frozen, as were the accounts of all the subsequent banks they went to.

She testified that after that, she never heard from Thiva again. [ 26 ] In cross-examination, Ms Mayuran admitted to the following: 1) After the banks started calling and asking for money, she never contacted the banks or the police; 2) After the police started calling, she did not return the police calls; 3) She lied to the police in her first statement, and in particular, she lied about arranging and masterminding the scheme on her own and further that she had spent the $273,000.00 at a casino; 4) Even though she agreed to participate in the scheme to improve her credit rating, she testified that during the entire period that she was involved (August 2008 to approximately March 2009) she never checked her credit rating;

5) At the time she started in the scheme, she owed a debt of $17,000.00, yet she withdrew and turned over cash in the amount of$273,000.00 to Thiva without asking questions.

She testified that she did not ask any questions; 6) She admitted that when it came to going to the banks, she opened up false companies, and although she admitted that this was not“a bright idea”, she did not know it was for an illegitimate purpose. [27] It is also worth noting that in her first statement to the police, Ms Mayuran admitted that she knew it was a criminaloffence to take money and that “the problem with the banks is that they hold everything which is fine..but then they start releasing..andthat’s when the problems start coming up right?” Analysis: [28] This charge is a Criminal Code offence and as with all Criminal Code offences the onus is upon the Crown, on thetotality of the evidence, to prove the offence beyond a reasonable doubt in order for the accused to be found guilty of the offencecharged.

The accused is presumed innocent. [29] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R.v. Lifchus(1997), 118 C.C.C. (3d) at para 24, Cory J. stated: Ordinarily even the most important decisions of a lifetime are based upon carefully calculated risks. They are made on the assumptionthat certain events will in all likelihood take place or that certain facts are in all probability true.

Yet to invite jurors to apply to a criminaltrial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which theprosecution must be held. Indeed, to liken reasonable doubt in any way to daily activities weakens the special significance of the criminal standard of proof uniqueto the legal process.” [30] Later on in the Lifchus case the Supreme Court of Canada held that the meaning of proof beyond a reasonable doubt is asfollows: “the standard of proof is higher than…a balance of probabilities yet less than proof to an absolute certainty”.

In R. v. Starr(2000) 2000 SCC 40 , 147 C.C.C. (3d) 449, the Supreme Court of Canada indicated that in order to convict, something less thanabsolute certainty and something more than probable guilt is required. The court further defined the reasonable doubt standard byexplaining that it falls much closer to absolute certainty than to proof on a balance of probabilities. [31] In assessing the evidence, and in particular, the credibility of the accused I have considered the direction provided by the Supreme Court of Canada in R. v. W.(D.) (1991) 63 CCC (3rd ) 397.

The Supreme Court of Canada has clearly indicated that in caseswhere the credibility of the accused is a fundamental issue that the rule of reasonable doubt applies to that issue. At page 409 of thatdecision the Supreme Court of Canada provided the following instruction to trial judges: [32] First, if the trial judge believes the evidence of the accused, the accused must be acquitted. Second, if the trial judge doesnot believe the evidence of the accused but is left in reasonable doubt by it, the accused must be acquitted.

Third, even if the trial judgeis not left in doubt by the evidence of the accused, the trial judge must still decide, whether the guilt of the accused has been establishedbeyond a reasonable doubt on the whole of the evidence. [33] Time and again the Supreme Court of Canada and the Ontario Court of Appeal have made it clear that the court’s verdictshould not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, thecourt is left with a reasonable doubt as to the accused’s guilt (R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546(Ont.

C.A.), at pp. 556-57; R. v. MacKenzie, (SCC), [1993] 1 S.C.R. 212, at pp. 219 and 240). [34] In analyzing this case in accordance with the principles set out above, Ms Mayuran’s evidence is rejected. Ms Mayuran’sevidence had a number of inconsistencies, and contradictions and she admitted to lying. Her evidence in her first statement to the police,her second statement, and her testimony at trial was inconsistent and contradictory.

As she readily admitted, her earlier statements to thepolice, filed as evidence in these proceedings, were clearly false. [35] There were also other aspects of her evidence that did not accord with common sense. It simply does not make sense thatMs Mayuran would engage in this scheme over a period of eight months to improve her credit rating, by withdrawing over $250,000.00dollars in cash from banks where she had set up false businesses, and then hand the cash over to Thiva and Esan without asking anyquestions with the hope that this would improve her credit rating.

According to the evidence and the exhibit filed, Ms Mayuran’s creditrating was actually good during the time that the scheme started. Further, most significantly, Ms Mayuran admitted to never checking hercredit rating to see if it had improved during the entire period that she was engaged in this scheme.

If she was truly involved to improveher credit rating, then common sense would indicate that she would have at least checked her credit rating during the eight to nine monthperiod to see if it had improved. [36] Further, although soft spoken and at times difficult to hear, Ms Mayuran is an intelligent, educated and articulate youngwoman. She presented this way at trial and in both video and audio taped statements to the police.

It is simply not credible that sheengaged in this scheme for a period of approximately eight months, including the setting up of the false businesses and the withdrawal ofover $250,000.00 in cash in the naive belief that this was a legal endeavour to improve her credit rating. [37] It also does not accord with common sense that Ms Mayuran did not immediately go the police and the banks once the

banks and the police started calling her, and that she did not report Thiva and Esan’s threats to the police once she refused to continuewith the scheme.

Even if I accept that Ms Mayuran continued to engage in the kiting scheme after the first bank “got hit” as she put it,because she felt threatened by Thiva, (whom the police could not establish existed), this does not change my findings that for thepreceding eight months, she was actively involved in the scheme and knew what she was doing was fraudulent. [38] I do not believe the evidence of Ms Mayuran, I am not left in doubt by her evidence, and on the whole of the evidence, MsMayuran’s guilt has been established beyond a reasonable doubt. [39] If Ms Mayuran did not have actual knowledge of the particular offences, which I am satisfied that she did, thenalternatively, she was wilfully blind to the unlawful conduct that she was engaged in.

Ms Mayuran clearly admitted in her directexamination, that upon being advised of this scheme, the “first thing” that she asked was whether the police were going to get involved.She testified that in response to this question, they [presumably Esan and Thiva] told her that there was nothing to worry about and thatall they were doing was moving money around in her own accounts. She then admitted to not asking any further questions over the nexteight months while she set up false businesses and handed over more than $250,000.00 in cash to Thiva and Esan without askingquestions.

This occurred despite Ms Mayuran’s awareness that the bank’s hold policy (as she explained to D.C. Martin in her firststatement) permitted her to deposit approximately 80 cheques in individual amounts of less than $5,000.00 which she later withdrewduring the two day time window it took before the bank could clear the issuing cheques. [40] As the Supreme Court of Canada states in R. v. Briscoe, 2010 SCC 13 , [2010] 1 S.C.R. 411, “Wilful blindnessdoes not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is acomponent of the mens rea.

The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the pointwhere he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55.

As Sopinka J. succinctlyput it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut hiseyes because he knew or strongly suspected that looking would fix him with knowledge?"....Courts and commentators have consistentlyemphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating.

As the Court explained in Sansregret (at p.584): ... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that theprohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to makethe inquiry because he does not wish to know the truth.

He would prefer to remain ignorant.” ...it is justified by the accused's fault indeliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]” [41] On the totality of the evidence, I am satisfied beyond a reasonable doubt that the Crown has established the essentialelements of the offence, and in particular, that Ms Mayuran was aware that she was engaged in fraudulent acts or she chose to be wilfullyblind to the prohibited conduct. Ms Mayuran will be found guilty of the five offences of fraud over $5,000.00, contrary to the CriminalCode.

Released: October 18, 2011 Signed: “Justice Sheilagh O’Connell”