R v. Sanmugarajah, 2018 ONCJ 661

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

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

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

ONTARIO COURT OF JUSTICE

Date: September 24, 2018

Court File No.: 17-769

Between:

Her Majesty the Queen

— and —

Senthilkumaran Sanmugarajah

Before: Justice A. Dellandrea

Heard on: April 30, May 1, 2, 3, 4, June 15, 19, September 21, 2018

Reasons for Judgment released on: September 24, 2018

Counsel:

Mr. Adam Bernstein — counsel for the Crown

Mr. David Humphrey — counsel for the accused Mr. Sanmugarajah

DELLANDREA J.:

I. Introduction

1Mr. Sanmugarajah is charged with two counts of sexual assault causing bodily harm, contrary to section 272(1)(c) of the Criminal Code.

2The case centers on the issue of consent to sexual activity in the modern, digital age. More precisely, it focuses on the question of whether and how consent to sexual activity can be effectively communicated and received between parties who have never physically met, and whose only exchanges about the terms of their potential physical sexual engagement have taken place online.

3It is not disputed that on two occasions, two years apart, Mr. Sanmugarajah used a complicated online ruse to deceive two separate women into having sexual contact with him. He posed as someone other than who he really was, then took the place of the fictional third party with whom the sexual contact had been brokered, and engaged in a variety of sex acts with each woman. What is disputed is whether the women consented to sexual contact with the accused, whether he exceeded the boundaries of any consent given, or alternatively, whether the nature of his deceit vitiated their consent to sexual activity at the outset.

4Mr. Sanmugarajah used the same ruse with each of the two women: first in 2015 then again in 2017. He created a Craigslist ad in which he purported to be the owner of an adult spa service seeking to hire female applicants to provide full service massages to "high-end" clients. Successful applicants were promised an hourly rate of between $200 and $500, in addition to a signing bonus of up to $1500. Neither of the complainants who responded to his ad had ever considered working in the erotic escort industry before, until they each found themselves in a situation of financial desperation.

5After a lengthy series of online exchanges with the accused, who posed as a variety of persona within the fictional spa organization, each of the complainants ultimately agreed to engage in sexual contact with an out-of-town, 'VIP' client, in exchange for the assurance of significant financial payment. Any of their reservations or concerns as to their safety or payment were met by the accused's repeated assurances that the spa dealt exclusively with high-end, out of town business clients, and that the business had been in operation for years. They were assured that nothing would be forced. The accused qua spa owner went on to provide a list of specific sexual activities which the complainants were told to expect during the date with the particular client.

6The list of anticipated sexual activities provided to the complainants by the accused included the full spectrum of oral and genital forms of sexual contact, but excluded anal intercourse. In addition, the complainants were advised to expect that the client might suck their breasts "a little hard", but instructed them not to complain if he did so. They were told to do what the client asked, and not to complain.

7On February 13, 2015, G.C. attended at the spa's direction at the Super 5 Inn, where she met with the client, who was in fact Mr. Sanmugarajah. The two engaged in a series of sexual acts, during which she says his conduct went beyond those which she had nominally agreed to in her exchanges with the spa. In particular, she says that the accused sucked on and bit her breasts with such force that his actions caused her pain, significant bruising and swelling to her breasts. She told him to stop, and he didn't. The Crown alleges that the accused intended to cause bodily harm, and did so, such that there could be no consent. It is also alleged that Mr. Sanmugarajah forced G.C. to continue an act of prolonged fellatio against her expressed wishes.

8Two years later, on January 30, 2017, T.A. was directed by the accused to the same Super 5 Inn in Mississauga, where once again the 'client' who attended was Mr. Sanmugarajah. The parties engaged in a variety of sexual conduct during which T.A. alleges that the accused bit her breasts without her consent, resulting in bruising. She says that she told him to stop and he didn't. She also alleges that while engaged in an act of fellatio, the accused pinned her head with his legs such that she couldn't move or stop, despite her clear efforts to do so.

9Finally, Mr. Sanmugarajah used the same scam to negotiate a meeting with a third woman, who he directed to the same hotel, in February of 2017. This woman turned out to be Constable Machado, a member of the Peel Police Vice unit. When he arrived at the hotel on this occasion, Mr. Sanmugarajah was arrested.

Positions of the Parties

10The Crown's position is that Mr. Sanmugarajah is guilty of sexual assault based on three routes of legal liability: "traditional" non-consent, consent vitiated by fraud, and consent vitiated by bodily harm. The Crown argues that the accused's evidence must be rejected as incapable of belief, or of raising a reasonable doubt as to his guilt for both offences. It is submitted that the evidence of each complainant is compelling, credible, and abundantly establishes the accused's guilt beyond any reasonable doubt. Further, the Crown applies to admit the evidence of each complainant in support of the allegations of the other, via a 'count-to-count' similar act application.

11Mr. Humphrey argues that in his online exchanges with each of the complainants, Mr. Sanmugarajah sought and obtained the complainants' valid, advance consent to each of the sexual activities which they engaged in. While Mr. Sanmugarajah's use of the Craigslist 'scheme' to achieve sexual contact with both complainants is admitted, Mr. Humphrey argues that his client's deception did not rise to the level required by s. 265(3)(c) to vitiate consent, and render the sexual activity unlawful. He further submits that the Crown's evidence has failed to establish that the accused both intended and caused bodily harm to either complainant. He submits that the Crown's similar act application should be dismissed, and that Mr. Sanmugarajah should be acquitted.

II. Review of the Evidence

i) Evidence of G.C.

Online exchanges with 'spa' personnel

12In 2015, G.C. was a recent graduate of university faced with a mountain of student debt. She went on Kijiji and then Craigslist looking for bartending jobs, which she discovered to be in short supply. By contrast, there were an abundance of positions being offered in the adult massage and escort business, which offered generous hourly rates. On February 5, 2015, G.C. saw an ad from a 'spa' looking to hire applicants to offer massages. She responded, indicating she was interested in part time work, and wanting to know if the business was really a spa, or an escort service. She initially said she "would not participate" in escorting.

13Mr. Sanmugarajah was the creator of the ad. During his testimony he admitted to having posted a series of near identical ads on Craigslist, a representative sample of which were entered as exhibits. They read as follows:

Willing to make more each day, If your 18 to 35 years, Make B.I.G.

Willing to make more each day, if your 18 to 35 years, Make BIG, only for massage S.P.A., make big amount per hrs

Make B.I.G, Make B.I.G., Make B.I.G

1500 Joining Bonus

Make B.I.G, Make B.I.G, Make B.I.G.

Two thousand five hundred to Five Thousand seven hundred week

IF YOU ARE 18-35 YEARS OLD, HAVE A BEAUTIFUL APPEARANCE

Female only pls

14Mr. Sanmugarajah did not actually own or operate either a spa or an escort service. However in the prolonged series of exchanges which he had with G.C. between February 5 and February 13, he posed as a variety of fictional characters associated with the imaginary spa in order to pretend that he did.

15Mr. Sanmugarajah responded to G.C. by asking about her background, her measurements and requesting three photos. He told her their business was located near the Kipling subway, and that they only dealt with VIP clients from USA and Europe, "business clients not working clients." He told her that she could start the following Monday. Mr. Sanmugarajah advised G.C. that when VIP clients are offered "a little extra, you will get pay from $250 to $300 hr". He assured her that it was "100% safe".

16G.C. pointedly asked what services he was referring to. Mr. Sanmugarajah replied "we offer full service", and increased the offer to $350 to $450 per hour. He asked G.C. to identify her "do's and don't's". She replied that she was willing to do dates, massages, hand jobs, dominatrix, but not "sex, head, anal". Mr. Sanmugarajah clarified that "full service" includes intercourse and oral sex. When G.C. repeated that these are among her "don'ts", she was reminded of the high hourly wage, and told "we don't give this to regular walk in clients, only to high end VIP clients, mostly business they don't stay in Toronto". G.C. indicated that she will keep that in mind.

17After four days, Mr. Sanmugarajah reached out to G.C., stating that they urgently needed help, and were able to increase offer $450 - $550 per hr. G.C. asked what kind of security was offered for visits with VIP clients. She received Mr. Sanmugarajah's repeated assurance that "it is 100% safe, we offer this to our high-end clients only, not walk-in clients".

18G.C. clarified: "if I begin working this would include the $1000 from your original offer and $500 per hour, correct?" Mr. Sanmugarajah replied "yes" and told G.C. that she simply had to send in some pictures of herself to confirm.

19Over the course of the following two days, G.C. was directed to submit photos of herself in a variety of poses and outfits, on the basis that "clients pay high we make sure give what they ask for".

20On February 11, 2015, G.C. received correspondence from a number of new 'characters' within the supposed spa organization. At 11:15 a.m., Mr. Sanmugarajah wrote to her as "Fabio" a supposed manager, and asked her if she can begin on Friday. Speaking as "Fabio", he directed G.C. to convey her final indication of interest to a second manager, "Jennifer" whose email address he provided. G.C. responded to this direction, by sending the following message at 10:15 pm on February 11, 2015:

Jennifer,

I'm not sure who I was speaking to, I believe it was two men, one I know for sure was Fabio, however it's been a constant back and forth with the same information being passed and it's highly frustrating. I'm not sure what's wrong with the email on Craigslist but they keep voicing that I am not replying back when I am. Now they keep asking me to start on Friday, and state that you guys are very busy however they have not fully explained the system to me besides the fact that these are VIP clients you deal with who are of the upper class, and apparently that you don't provide security. I've told them I am available on Friday, however they keep changing the price we had confirmed which was $500 per hour as well as the additional $1000 for beginning. If you would like someone to the the Friday and you are interested in hiring me please contact me at this email, I will gladly reply back.

G.

21For the remainder of his exchanges with G.C., between 10:41 p.m. on February 11, 2015, leading up to the moment of his physical encounter with her as the 'client' on February 13, 2015, Mr. Sanmugarajah corresponded with G.C. exclusively through the email address associated to the fictional manager, 'Jennifer Lawrence'.

22'Jennifer' confirmed that G.C. would be paid the $500 hourly rate, in cash. Jennifer indicated that the clients pay in advance through PayPal and that after each client G.C. would get paid by her directly.

23At 12:04 a.m. on February 12, 2015, 'Jennifer' told G.C. that they have a "high end client from magna, Vice President of the company regular client coming from the USA". She adds that he comes every 4 to 6 months and that he is a "very nice client". G.C. is advised that in order for her to be booked with this client she needs to look like a "doll", as the client likes girls who model, are hairless, and have an "office girl look". G.C. was directed to submit photos from her wardrobe for Jennifer's approval, and instructed to straighten her hair, according to the client's preference.

24Jennifer told G.C. the location where she would be meeting this client, who had make a booking for four hours, with the potential for a second day "if he likes" her. G.C. was advised that the room would be booked under her name, and that she would need to provide a credit card to secure the room.

25Jennifer told G.C. on a number of occasions that she would see her personally on the day of the anticipated date, in order to pay her in cash, take her for lunch, and drop her home. G.C. sought confirmation that since she was booked for 4 hours she would be receiving a total of $3000. Jennifer confirmed the payment for the first date, and added that there might be potential for a second one, but only after a break during which Jennifer would come and "see how [she] felt". Jennifer asked G.C. for the make, model and colour of her vehicle, and told her that after the first client left, she would meet G.C. beside her car.

26G.C. was instructed not to ask the client how much he paid, or any personal information.

27G.C. asked Jennifer "what is exactly is my routine" for the meeting with the client. She received the following response, on February 12 at 9:41 p.m.:

This is what you will be expecting tomorrow, your name is Michele, soon he come inside pls hugging and start give him French kissing to show how friendly your, you will expecting all this today, no rush, French kissing, hugging, Kissing your whole body by tongue if the clients like to, Blow job without condom, kissing with tongue, cum on body, sexy shower, ball licking and sucking, rim job, kissing or sucking boobs and licking Virgina, have sex many time. I don't like getting complain from this vip clients even they did suck your boops or you lips little hard just be patients end of day will pay little tips or book you for next day as well. If any marks on your boobs it's ok I have a spray it will be gone in 10 min. When you with clients turn your cell either off or silent, don't play with cell, they don't like it, and try to turn your self into sex real mood. After he leave let Me know. I will come down to get feed back from you, and pay, let's go to lunch.

2. pls don't ask clients how much he pay us, or any personal info. We know we have told, just to make sure.

3. i know this client very well, he stay with so many our girls many time, he may ask you to take shower every 1 hr or so take shower make sure put make up, perfume, fresh breath and every time need to look like a doll, and perfume as well. Change the dress & make up in the washroom.

4. if clients like to leave early, its ok let, This specific client only leave early if he doesn't like your attaute or You not doing what he ask to do, otherwise he will stay full hrs, if he like to keep you for 1 or 2 hrs extra it's fine, he paid 2 days, try to keep him to say more hrs possible, this way we all can make $$$ and may keep you for until he need it, and will all ways book the same girl next day as well.

28After receiving these instructions, G.C. indicates she is concerned with the risk of contracting a sexually transmitted infection from performing oral sex without a condom. Jennifer responds with the assurance that clients are "high end, they are clean, we been doing this business last 15 years".

29On the morning of the meeting, G.C. discovered that the hotel room had not been paid for, so she was required to put her own credit card down for $60 or $80. She texted Jennifer the room number. Jennifer told G.C. that the client, whose name is John, was 10 minutes away. Jennifer transmitted the following list of final instructions:

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

He's coming up, turn the cell off or silent, remember 4 hours, he can stay extra 2 hrs if he like it, try to make him stay more pls.

Good luck!!!!!

30G.C.'s final reply to Jennifer was: "I don't swallow cum just letting you know. I will do all of that." G.C. testified that at this point she was getting fed up, because they were telling her everything she had to do, and she felt she "had no rights in it."

Meeting with the 'client' – Mr. Sanmugarajah

31Mr. Sanmugarajah arrived at the hotel room. He carried a plastic bag containing a box of condoms, and orange juice. He told G.C. that he lived in New York, and had recently been travelling for business to Asia.

32Mr. Sanmugarajah told G.C. that he was "good friends" with the spa managers, and was happy that they had "hooked him up" with her for the few days he was in town. He disrobed and moved her to the bed.

33When G.C. removed her blouse and bra, Mr. Sanmugarajah immediately began sucking on her breasts, and her neck. She testified that she told him "you're going to give me hickeys, don't do that". She explained that she didn't want any visible marks on her body that her mother might see. She described the degree of force of the accused's sucking of her neck and breasts at this point to be "moderate".

34They proceeded to have intercourse for approximately 10 minutes. Mr. Sanmugarajah ejaculated. G.C. got up and went to the washroom to change, as she had been told by 'Jennifer' to change her outfits frequently. She put on a new bra and panties and returned to bed. Mr. Sanmugarajah began sucking and biting her breasts with moderate force, which she could initially deal with. However she testified that then bit her shoulder "really hard". She had not asked him to do this, but ignored it.

35Mr. Sanmugarajah told her to perform oral sex. When G.C. positioned herself on the edge of the bed and began to do so, the accused put his legs over her shoulders and pushed her down so that she couldn't move. She testified that he pushed her head down toward his penis with his hands, and that when she tried to pull her head back to avoid gagging, he used his legs which were over her shoulders to push her back down. She was told to lick him under his testicles. Upon doing so, Mr. Sanmugarajah used his knees to clamp her head in place so she couldn't move. She testified that it felt like a head-lock, and that it was very painful. If she stopped licking, he would squeeze his legs against her head even harder, until she continued.

36G.C. returned her mouth to Mr. Sanmugarajah's penis. When G.C. realized the accused was about to ejaculate, she tried to pull back, but couldn't because his legs were still over her shoulders and his knees were pinning her head. He ejaculated into her mouth, then held her there for 30-60 seconds before he let go of his legs. G.C. ran to the sink and spat out his ejaculate.

37G.C. testified that she thought about leaving at this point, but realized that her clothes were across the room and she didn't want to run into the hallway naked. Mr. Sanmugarajah pulled her back down onto the bed and once he started to suck her breasts, this time with a greater intensity. She described it as "really, really intense and hard" to the point that he was biting down, clamping and gnawing, or almost grinding his teeth on her breasts. She testified that she told him to stop, but he didn't. This persisted for about 10 minutes, until the pain reached a point that she could feel tears in her eyes.

38G.C. testified that Mr. Sanmugarajah didn't say anything as he was doing this, rather he just held her tightly and was "just gnawing and biting". She said he seemed to be "getting off on it," and it was like he was hypnotized. She estimates that she was held by the accused in this position for at least an hour. At times it seemed to her that he was sleeping, but the moment she moved to try to wiggle out, he would open his eyes and start biting her breasts again. She testified that she repeatedly asked him to stop. First she repeated the word "stop," then later she said "please stop", and finally she just started saying "please". If she made any sound, such as moaning in pain, he would bite harder. G.C. said when she realized he wasn't stopping, she tried to just lay still and wait for it to end. Eventually Mr. Sanmugarajah stopped, and got up to go to the washroom. She said she lay there in shock.

39When Mr. Sanmugarajah returned from the washroom she told him his time was up. While he dressed, he asked if he would be seeing her the following day, and she said yes, in order to get him out of the room. As he left, Mr. Sanmugarajah told G.C. he would set up their next visit through Jennifer or Fabio. She testified that she had no intention of seeing him the next day, but considered luring him back for a second meeting so that she could call the police to catch him. She testified that what he had done to her was so extreme and wrong that she didn't want it to happen to anyone else. She testified that he didn't leave any money before he left, and that even if he had, the money wouldn't "make up for what had happened".

40G.C. testified that when she walked into the bathroom and saw herself in the mirror, she was shocked. Her breasts and nipples were bruised and appeared twice their usual size. Her neck and shoulders had what appeared to be bite marks on them. The marks were dark red, "past a hickey", around her breasts in a half-moon shape, "tracing where he had been". Her nipples were bleeding.

41G.C. got dressed and went to her car. At 3:21 p.m. she texted Jennifer, whom she was expecting to be there, to advise that she was done. Jennifer replied that she was coming from Oshawa and would be 40 minutes late. She told G.C. to check out and come meet her at a Tim Horton's. G.C. replied: "I'll be there. And I hope you have that spray".

42After over an hour of waiting, G.C. received the following message from the email account of "gtaspasensationspa_adult2014_2045@outlook.com":

HEY DEAR THERS BEEN A PROBLEM JENNIFER GOT INTO ACCIDENT 401, CANT' VERY BAD CONDITOINS, NO PULSE, THE AMBULANCE TAKING HER TO HOSPITAL. NO ONE WILL AVAILABLE, YOUR NEXT APT CANCELLED TODAY ONLY . FABIO WILL MEE YOU CLOSE TO YOUR HOME TODAY AFTER 4 HRS. TO PAY YOU! SORRY DEAR !! JUST C/OUT, LET US KNOW WHEN REACH HOME, AND YOUR ADDRESS, OR ANY TIM HORTON OR STARBUCKS HE CAN MEET YOU CLOSE TO YOUR HOME.

43G.C. replied, and directed Fabio to a restaurant at Highway #7 and Leslie. No one attended. She sent a message directing them to another location in 30 minutes. Again there was no reply. G.C. testified that her purpose in attempting to meet up with the spa management after the incident was not only to get paid, but also "to figure out who exactly I was in the room with and to tell them what happened."

44Finally, the next morning, she sent a message indicating that she believed she had another appointment with "John" that day however she needed to know the hotel name and address. No response ever came. G.C. testified that she sent this last message hoping to set up a time and place so that she could tell the police where to go to find the man.

G.C.'s injuries

45The day after the incident, G.C. took five photos of her neck, shoulder and breast area. The images were entered as exhibits. G.C. testified that prior to taking the photos, she had applied foundation to the bruises to her neck area in an effort to conceal them. The images depict dark red, purplish marks to G.C.'s left shoulder, left and right upper neck, and over two large areas on both her left and right breasts, encircling the nipple area.

46G.C. testified that her breasts were very swollen and painful following the incident. Her nipples were discharging pus and bleeding from the area of her nipple rings, which she testified that Mr. Sanmugarajah had torn with his teeth. For some time, G.C. found it too painful to wear a bra, and had to wear loose clothing so that nothing touched her breasts.

47The following week, G.C. went her physician, Dr. Dulay, for an examination. G.C. told her doctor that her injuries were the result of unwanted rough sex with a boyfriend. In her report, Dr. Dulay noted yellowing bruising around G.C.'s breasts, as well as an apparent tear of less than one cm to the area of the right nipple. There was discharge from this area which was indicative of an infection. The doctor noted G.C.'s complaint of pain to her neck, breast and back, as well as tenderness in the armpit area. Dr. Dulay prescribed an antibiotic for the infection to G.C.'s breast. G.C. was seen again by Dr. Dulay ten days after the event, on February 23. G.C. reported to Dr. Dulay that her pain had worsened over the week since the first examination, despite the use of antibiotics. By February 23, the bruising was observed by Dr. Dulay to have resolved, and no further discharge was noted at the nipple area. G.C. still had some tenderness to her underarms. G.C. testified that it was "probably a month and a half" before she started feeling comfortable again, even after the swelling had gone down.

G.C.'s position on consent

48When asked by the Crown what she had consented to and with whom, there following were G.C.'s responses:

Q. What were you consenting to?

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

Q. who did you think that you were engaging in sexual relations with?

A. A guy that just wanted sex.

Q. and which guy?

A. I don't know. Some guy from – who worked for Magna, who lived in New York, who was a CEO of a company; who'd be like a decent man, hopefully.

Q: if you knew that the person who was showing up at your door, the hotel, was actually the author, the person who wrote those emails to you, would you have agreed to engage in this activity?

A: no.

49In cross-examination, it was suggested to G.C. that it was clear from her communications with Jennifer that she understood that she was agreeing not just to intercourse, but to "all those other things listed". G.C. replied "if I was ok with them". After reading the portion about breast-sucking, potential marks and the "special spray", G.C. admitted that she expected there might be some marks to her breasts as a result if the interaction, but she maintained that what she expected was only "hickeys", which to her meant areas of redness that might last a few hours or a day or two. She was adamant that she never asked him to suck her boobs "harder," as had been suggested in the email, but rather that she had asked him to stop several times.

50G.C. did not deny having agreed, in the emails with Jennifer, to have sex with the man who came to her room. She agreed that he was a stranger, whose race and appearance she knew nothing about, and which were unimportant to her. Neither did she know, or care to know his name. She said she did care, however, what he did for a living. This factor, to her, related to her assurance of getting paid, and of being safe. She said "they said that they were business people and I assume they'd be ok people."

ii) Evidence of T.A.

Online exchanges with 'spa' personnel

51T.A. is a 29 year old woman who immigrated to Canada in 2014 from Bangladesh. She is married, with two children. In late 2016, early 2017, her husband was on a disability pension, and the primary responsibility for earning the family income fell to her. Their financial situation was desperate. In addition to supporting her own family, T.A. was also responsible for sending money each month to her mother in Bangladesh, who was at risk of eviction from her home.

52On December 28, 2016, T.A. turned to online classifieds looking for work. She came upon Mr. Sanmugarajah's job advertisement for massage therapy. She inquired about more details and indicated she was available right away. Mr. Sanmugarajah replied the same day, inviting her to send pictures, measurements and work history. T.A. admitted she had no related work experience, but that she needed "urgent money". She assumed at this point that the business was at some type of office, where clients came to get massages.

52The next message to T.A. came from "Steve", the manager. He provided his cell phone number and clarified that they offer "full service" to their VIP clients. T.A. told him she wasn't interested. A few days later, Steve called T.A. and explained that they were overbooked because of the approaching New Year, and as a result, were increasing the hourly rate to $500 per hour.

53A few days later, T.A. was contacted by "Lisa", who requested that she send in pictures immediately. Lisa assured T.A. that they served business and corporate clients only, who were non-Canadian. T.A. submitted a series of photos, and eventually, on January 2, 2017, indicated she was prepared to work. From this point on, T.A.'s discussions with Steve were a mixture of both emails and phone calls.

54T.A. was told that she would need to attend a hotel to meet a client, and needed to bring her own credit card to book the room, for which she would be reimbursed. T.A. was directed on what to wear and how to appear to the client. T.A. asked what would happen if a client wasn't satisfied with her, and whether she would still get paid. She explained that she was inexperienced, was still "confused about the client and what they will ask from me". She expressed concern based on what she had seen in movies, where men hit women or force sex. The accused assured her that she would be paid, and told her that this is what she should expect from clients:

GFE is a type of service we give our clients includes, NO RUSH, French kissing, hugging, kissing your whole body by tongue if the clients like to, Blow job without condom, kissing with tongue, cum on body, sexy shower, ball licking and sucking, fingering kissing or sucking boobs and licking puzzy, Have sex many time…LET US KNOW YOU OK WITH THIS SERVICE. We don't like getting complain from this vip clients even they did suck your boops or you lips a little hard just be patients end of the day will pay little tips or book you for next day as well. We guaranteed if you do we'll you you will be booked for next days.

55T.A. responded that she was fine with the list, and asked how many hours she had been booked for the following day. She was told she was booked for 4 hours with the first client, 1.5 hours with the second and 1.5 with a third. T.A. testified that Steve had told her nothing would be forced, and assured her about the sort of person the client was. She was told:

Okay. He's from America. The – he told me by phone that he's coming from America and he's the boss for one company in America – like he's the owner, one company. He have one company in America and he's very gentle and nice person and he's the regular client and they have lots of staff, like other lady still with him, and he's very nice guy. He told me this information about him, like he's coming from America. That's why they put Mississauga, because when I told him I don't know, it's very far from my home, they said said no, the client is coming – landing from airport, so Mississauga – from the airport to Mississauga it's very close. That's why they gave me close address.

56T.A. said she never thought that any violence or problem could happen, because she was "trusting every word. Whatever they told me, I trusted them"

57T.A. assumed that the reference to the client potentially sucking her breasts a "little hard" meant just that: a little.

Sexual Encounter with the 'client' – Mr. Sanmugarajah

58On January 3, 2017, T.A. left home at 8:30 a.m. for the hotel, which was over an hour away. Initially Steve had told her that he would be meeting her in the lobby to pay for the room, but as she got off the subway he called to tell her he was running late, so she would have to pay for the room herself. She was instructed to check in, pay for the room, and not ask any questions of the client. She checked into the room as instructed. At 11:13 a.m. she received a message from Steve that the client, named John was on his way to the room. She was instructed to turn her cellphone off and told that he (Steve) would be there to meet her after the client left. He wished her good luck.

59Just after 11:13 a.m., Mr. Sanmugarajah arrived. He was wearing a black hat, and carrying a shopping bag containing orange juice. He entered the room, asked her for her name, then disrobed. He told her to do the same. Mr. Sanmugarajah lay on the bed and directed T.A. to perform fellatio on him. She did so for about 5-10 minutes, then he removed her bra and underwear. Their positions changed when Mr. Sanmugarajah pulled T.A. on top of him and they began to have intercourse. He was holding her tightly, but she didn't feel like she was being forced. She testified that during intercourse, Mr. Sanmugarajah used a flat or closed hand to strike her in the buttocks several times. She had not given him permission to do this.

60During acts of intercourse, Mr. Sanmugarajah bit T.A.'s breasts very hard. She could not recall if this happened more than once. She estimates he did this for 5 to 15 minutes. She made a sound, like she got hurt, when she was bitten. She used the word 'bite' to describe what he did because "there were teeth involved." T.A. testified that during the conversations she had with Steve, there was never any suggestion of the client biting her breasts hard. Steve had said there would be no "forcing". The client never asked if he could bite her.

61T.A. described Mr. Sanmugarajah's demeanour through the majority of their sexual encounter as "robotic". He mostly gave her instructions and she had to follow, as a result of her exchanges with the company by email. She testified:

Like, I was not comfortable. But like, already I am inside the room and he's inside the room and I was agree with the company. I was agree with the company by mail – by email that, okay, whatever like – this is can happen, so I just keep myself silence and whatever he told me I do.

62After intercourse, Mr. Sanmugarajah sat on the sofa and directed her to perform oral sex while kneeling in front of him. T.A. testified that this was the beginning of when the accused started really "forcing" her. After approximately 15 to 20 minutes of fellatio, she tried to take a break by pulling her head back. When she did, he used his hands to push the back of her head back down onto his penis. Her throat and mouth were hurting, as were her knees. T.A. testified that she told him to stop, but he didn't.

63Mr. Sanmugarajah moved to the bed, and directed T.A. to come there and continue. T.A. said when she got onto the bed, the accused put his two legs over her shoulders, and squeezed them on either side of her head to hold her in place. She couldn't move her head, and struggled to breathe. He used his hands to pull her hair and to push her mouth onto his penis. She tried to push away, but couldn't, as her hands were also constrained near the area of his genitals by the pressure which the accused was applying with his legs to her head and shoulders. T.A. described this activity as "a hundred percent" forced. T.A. estimated that the oral sex continued like this for at least another 30 minutes. The accused was holding her face and shoulders in place with his legs. She testified that she tried two or three times to tell him to stop, by slapping or pushing against his belly, and by getting out the word "stop". She testified that Mr. Sanmugarajah didn't listen or stop. He ejaculated into her mouth, and T.A. vomited onto the bed.

64After the accused ejaculated, he got up to shower. He told T.A. to come with him into the bathroom, and had her stand outside the shower while he bathed. After he was finished showering, the accused got dressed. T.A. did as well. Mr. Sanmugarajah asked T.A. if it was her first time. She told him that it was, and elaborated on her previous employment experience, and current financial crisis. The accused put a $5.00 bill on the table, told her not to call the spa right away, and left.

65T.A. showered, then called Steve. There was no answer. Within a few minutes, at 1:45 p.m., she received the following email:

HEY DEAR THERS A PROBLEM MANAGER GOT IN TO ACCIDENT 427 Hwy,

CANT VERY BAD CONDITIONS, NO PULSE, THE AMBULANCE TAKING HER TO HOSPITAL. NO ONE WILL AVAILABLE, YOUR NEXT APT CANCELLED TODAY ONLY. TONIGHT SOMEONE WILL MEET YOU CLOSE TO YOUR HOME? TODAY AFTER 6 pm, TO PAY YOU! SORRY DEAR!! AFTER THIS CLIENT LEAVE, SORRY DEAR!! LET US KNOW WHERE TO MEET, MAIN INTERSECTION..OR ANY TIM HORTONS, MACDONALD CLOSER TO YOUR HOME.

66T.A. testified that after receiving this email she started to realize that maybe this man might be the same person as who she had been dealing with. Over the next several hours and the following day, she attempted to reach Steve by both email and phone. She did not want her husband find out what she had done and she was angry that she had been manipulated and had not been paid. When she spoke to the accused on the evening of January 4, she told him that she had taken a photo of the marks to her breast, which she threatened to show to the police. She testified that he told her he was not going to pay, that she couldn't do anything about it.

67On January 4, T.A. called 9-1-1 and reported the incident to police. She was interviewed by police and directed to obtain medical attention the following day, which she received.

T.A.'s injuries

68On the day after the incident, T.A. took one photo with her cellphone camera of one of her breasts, in an effort to capture the red markings which she testified were caused when the accused bit her breast in the hotel room. This image was entered as an exhibit. T.A. stated that she took two extra-strength Tylenol to address her pain from that injury.

69On January 4, 2017, T.A. was examined by Ms. J. Keeler of Trillium Hospital. Ms. Keeler is a very experienced Nurse Practitioner who specializes in conducting examinations of individuals who may have suffered physical or sexual abuse. The physical examination form documenting Ms. Keeler's observations was introduced as an exhibit. During her examination of T.A., Ms. Keeler noted three areas of discolouration. One small area of faint blue colour and non-defined margins on T.A.'s upper chest, and two slightly larger areas of red and purple bruising on lower portion of her right breast, which T.A. described as painful. Ms. Keeler also noted that T.A. reported some pain and stiffness in her neck, as well as her lower back and buttocks, however these areas were without marks or bruising.

70T.A. testified that even after she reported the incident to police, she still didn't want her husband to be aware of what had happened. She testified that she gave Constable Machado whatever emails she had between herself and the spa. She told the officer that she had deleted some of the emails, because she was afraid her husband might discover them in on her laptop. She also told them that after the event she had some back and forth with 'Steve' about having been scammed.

71In cross-examination, T.A. was challenged to explain which emails she deleted, and why. She testified that in order to conceal the emails from her husband, she immediately deleted emails from her inbox, which she understood would remain in her trash box. She testified that after the incident she double deleted all of the communications with the spa. She explained that she did this extra step to ensure that her husband would not find the emails, and because she was upset and afraid by what had happened.

72Mr. Humphrey produced a series of emails exchanged between Mr. Sanmugarajah and T.A. between his departure from the hotel room on January 3 and January 4, 2017. None of these communications had been provided by T.A. to the police during her interview, as she had "double-deleted" and failed to mention them. It is clear from these exchanges that at the time they were written, T.A. had come to an awareness that she had been cheated by the spa. She threatened to go to the police unless she got paid, told them that she would show her "body mark" and would "complain that you guys force me". She said they would be in 'big trouble" if they didn't pay right away. T.A. also wrote:

• Don't think u can escape from me I already talk with hotel manager they hv cctv camera. So it's easy to get ur pic from there. And with ur email n phn no. they can trak ur location. If u don't pay me today u will loose u will be in big trouble. I borrow money from my neaibour to pay hotel bill and now u r making a story with me

• …I took the loan to pay for the room, I will not leave it simply, anyhow I will get my money back, I don't care whatever I hv to do for this I will do, I want money

• Keep ready ur mother and daughter and sister for tomorrow to fuck by police

• Police ask me to go to Mississauga hospital to do test. U hit me at hotel room I will not leave u simply. I don't want u do same things with other girls.

73T.A. agreed that she didn't specifically tell the police that she had double-deleted the emails that she had with the spa in which she threatened to report them and used aggressive expletives after the incident. She acknowledged that she was upset, nervous and angry when she wrote these messages.

74T.A. agreed Mr. Humphrey's suggestion that if she had been paid the money she was owed, she would not have gone to the police. She maintained that she what she was referencing in these emails, to having been forced, was true.

T.A.'s position on consent

75T.A. testified that until she got the email following the incident, she was sure that the client was the business man from America, who had just come from his flight. She said whatever she was told in the email, she trusted. In cross-examination, T.A. agreed that she didn't care what the client's name was or what he looked like, but as to what he did for a living, she testified they had already made clear to her that he was a vice-president from America. When T.A. heard the accused's voice in the hotel room, the thought did occur to her that there was a possibility he could have been the same man she had spoken to at the spa about setting up the date. She testified that when he arrived at the room wearing the clothes and hat which the spa had described as those worn by the "VIP" from America, she trusted that it must be him. She did not ask any questions of the client, because she had been firmly told not to do so.

76T.A. accepted the possibility that the second and third clients which she had been told were booked for later that day were from Mississauga. Later in her evidence she repeated that "[t]hey told me they are non – like non-Canadian. That's why I agree". She went on to explain that she did not want the risk of running into clients while in the community with her family.

77T.A. said if she had known that the man who came to the hotel room was the person who had set her up with all of the emails, she would have taken her bag and walked out, even if he had offered her $5000, because, as she put it "he's lying for everything".

iii) Evidence of the accused Senthilkumaran Sanmugarajah

78Mr. Sanmugarajah came to Canada from Sri Lanka in 1993. He is 41 years of age, married, and the father to two boys. At the time of the allegations, he was working mostly from home as a real-estate and mortgage broker.

79Mr. Sanmugarajah admitted to having created and posted the ads which were entered into exhibits, as well as to having been the author of all of the communications on behalf of the purported spa with both G.C. and T.A.

Creation of the Craigslist Ads

80He testified that he initially went to Craigslist in late 2014 to post ads in relation to his real estate and mortgage business. While there, he noticed that there were also chat rooms, where a lot of people were talking about financial issues. He entered and perused these financial chat rooms. He said that somehow he got into another chat room related to sex.

81Mr. Sanmugarajah stated that once in this second 'sex' chat room, he heard another user talking about creating a fictional "full service" spa for eight years, using many characters, and then taking the place of the client to have sex with the women. He scrolled back and read a thread of messages in this chat room, which he claims detailed the purported methodology for this elaborate ruse. Mr. Sanmugarajah testified that he can't remember the name of the chat room, and didn't save any of the logs. Instead, he simply copied and pasted the wording that he needed from the chat room into a notepad on his cellphone.

82The accused testified that the suggested payment method for this 'scheme' was to offer the prospective employees $500 - $600 per hour to get them "to come in", but then to pay them only $40 to $80 per hour.

83In addition to the promise of hugely inflated hourly rates, Mr. Sanmugarajah testified that his purpose in telling the women that there were multiple clients booked in the days to follow was to give them the impression of ongoing work.

84Mr. Sanmugarajah said that he started running these ads right after reading about them, in late 2014. His intention was to give the appearance that there was an actual organization, or business, for which he would then play a variety of fictional roles within the management. The accused admitted that his objective in posting the ads was to have sex with the women who responded. He testified that he did all of this to avoid having to go to a prostitute and risk contracting a sexually transmitted infection.

85He admitted that numerous references to "VIP clients" in his exchanges with both women were designed to impress the women, to encourage them to sign on to the spa position, and make them believe they were going to be treated well. Mr. Sanmugarajah acknowledged that the many references to the clients as being businessmen from America and Europe was intended to make the women more comfortable, safe and more likely to participate.

86Mr. Sanmugarajah agreed with Mr. Bernstein's suggestion that he didn't want the women to think that the person coming to see them was a working man from their local community. He also agreed that he didn't want them to think the client was an unsuccessful real estate agent, such as himself. Finally, Mr. Sanmugarajah agreed that he knew neither G.C. nor T.A. was going to have sex with him – the real Mr. Sanmugarajah – so he had to pretend to be someone else.

87Similarly, he acknowledged that the use of multiple spa persona, including two female characters, was aimed at making them believe that the spa was "legitimate", and also safe.

88His request for photos from both complainants was aimed at determining if he was attracted to them. His directions to both G.C. and T.A. with respect to how to dress, style their hair and groom themselves were a reflection of his own sexual preferences.

89Mr. Sanmugarajah chose the Super 5 Hotel at Dixie and Dundas as the meeting place with both women, because he wanted to stay far away from where he lived, so his wife wouldn't find out.

90Mr. Sanmugarajah testified that he provided the women with the list of anticipated sexual activities so that the women would "know what to expect". He acknowledged that he tailored the list to suit his sexual interests, in particular, his enjoyment of "boob sucking" which could potentially leave a mark. He stated that the idea of a "special spray" to erase possible marks was not his own, but was one of the other ideas he had borrowed from the chat room.

91Mr. Sanmugarajah admitted that his instructions to G.C. in the subsequent emails to say a variety of things to the client, including "suck my boobs harder" were his own suggestions. He said these words and actions would turn him on.

Interaction with G.C.

92Mr. Sanmugarajah testified that all of the sexual conduct between himself and G.C. was completely relaxed and consensual. He said she never expressed her withdrawal of consent with any word or gesture. He interpreted G.C.'s response to his last email before their encounter in which she said "I don't swallow cum, just letting you know, I will do all of that" as her expression of consent to everything except swallowing semen.

93Mr. Sanmugarajah described his interaction with G.C. as involving three alternating sessions of fellatio and intercourse. He testified that in between these acts she showered once, and he twice. He said they watched television together and chatted a few times. He could not recall the details of these chats, beyond her asking him about New York City and her taking courses. During the episodes of intercourse he testified he sucked G.C.'s breasts several times.

94With respect to G.C.'s breasts, he admitted to "really hard sucking", but denied ever biting them. After sucking her breasts he said he noticed "little hickey marks".

95With respect to oral sex, Mr. Sanmugarajah denied ever putting his legs over G.C.'s shoulders, pinning her head with his knees, or forcing her mouth to remain on his penis in any way. He said that during the multiple incidents of fellatio, he was lying on the bed with his legs "open". He said he did not ejaculate in her mouth.

96Mr. Sanmugarajah testified that at no point during their sexual interaction did G.C. ever say stop, or appear to be unwilling to participate. When asked what his belief was as to her consent, he testified that he could "feel it", because during intercourse she indicated she was about to climax, and he felt that she wanted it to go on.

97After the sex was over, Mr. Sanmugarajah testified that he retrieved $175 which he had rolled up in thread and secreted in a small hole in the liner of his suit jacket. He said he hugged G.C., kissed her, and gave her the money. He said this technique for concealing money from prostitutes was one which he had heard of in the chat room, which warned against the potential for theft.

98Mr. Sanmugarajah testified the email which he sent to G.C. at 4:43 p.m. indicating that Jennifer had been in an accident on the 401 and had "no pulse" was a script which he had "exactly copied" from the chat room and sent because this is what he was told to do on Craigslist. He explained that the purpose in sending this was to discourage G.C. from complaining about not being paid in full. The message was designed to maintain the ruse for a while before cutting her off.

Interaction with T.A.

99Mr. Sanmugarajah admitted to following the same 'script' which he had used with G.C. to entice T.A. into accepting the same fictional offer of employment. He acknowledged that when T.A. initially expressed her disinterest in working as an escort, he responded by increasing the promised hourly rate, to entice her to agree. He acknowledged that these increases in the promised price were immaterial to him, because he had no intention of ever paying her such a generous rate.

100As with G.C., Mr. Sanmugarajah testified that having sent the 'laundry list' of sexual expectations to T.A. in advance, and received her response that she was willing, he believed that he had consent to do the things outlined in the emails. This included the potential for sucking her breasts "a little hard" and the potential for marks to be left on her breasts.

101Mr. Sanmugarajah acknowledged that he did suck T.A.'s breasts "hard" but maintains that he never bit them. He testified that she never said the word 'stop', or otherwise conveyed any unwillingness or pain. He said he received fellatio from T.A. three times, but that on each occasion (one on the couch, two on the bed) his legs were in an "open" position.

102Mr. Sanmugarajah denied ever positioning himself in the manner described by T.A., with his legs over her shoulders, and knees pinning her head while she performed oral sex. According to him, he was unable to sustain an erection during the last episode of fellatio, so he decided to just end it by getting up and taking a shower. He testified that he never forced her head down onto his penis, or ejaculated in her mouth. He denied seeing T.A. vomit onto the bed.

103After the final act of fellatio, the accused says they both got dressed, he retrieved $300 from inside the lining of his coat, gave it to T.A., said goodbye and left. He acknowledges sending the same dramatic message about the manager having been in a near-fatal car accident to T.A. as the continuation of what he called his "runaround" script. He acknowledged exchanging additional messages with T.A. through January 3 and 4, 2017, in which her demands for payment and threats to report him to the police are conveyed.

Patricia Perez, aka. Constable Carla Machado

104Mr. Sanmugarajah admitted that he continued running his ads after his dealings with T.A. on January 3, 2017. On January 10, he received an expression of interest from a woman who identified herself as Patricia Perez. Unbeknownst to Mr. Sanmugarajah, Ms. Perez was in fact Constable Carla Machado of the Peel Regional Police Vice Unit. Constable Machado had received T.A.'s report on January 4, 2017, and promptly created her own fictional persona in order to investigate him.

105I don't propose to review the details of Mr. Sanmugarajah's numerous exchanges with Constable Machado between January 10 and January 17, 2017. The seventeen (17) pages of messages between he and the officer are essentially a carbon copy of the online interactions which Mr. Sanmugarajah had with both G.C. and T.A. The script included essentially the same cast of characters, same assurances of high-end "non-Canadian" clients, promises of absolute safety, and of course, the same itemized laundry list of sexual expectations and directions not to complain.

106In the same manner as he had done with G.C. and T.A., Mr. Sanmugarajah attended to the hotel room door on January 17, 2017, with the intention of having a sexual encounter with 'Ms. Perez', on the same terms. On this occasion, however, he was arrested by a team of officers who were within the room.

III. ANALYSIS

a) Fundamental principles

107There are a number of binding legal principles that have guided my analysis and decision. First, the accused is presumed innocent and bears no burden to prove his innocence. The presumption of innocence is only displaced if the Crown has established, beyond reasonable doubt, that he is guilty of the offence charged. The standard of proof is a high one (R v. Lifchus, 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 para. 27 and R v. Starr, 2000 SCC 40 para 242).

108Second, the formula expressed in the Supreme Court of Canada's decision in R v. W.(D.), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) must govern my analysis. At its essence, the principles emerging from this decision centre on the Crown's burden of proving guilt beyond reasonable doubt. I am required to take the following approach in assessing the evidence in this case, and have done so:

• First, if I believe the evidence of the accused, I must acquit.
• Second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit.
• Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

109Further, I remind myself that a criminal trial where the accused and complainants testify is not a credibility contest. A judge is not to simply compare the differing versions of events and choose which one the judge prefers (R v. C.L.Y., 2008 SCC 2). Indeed, as Justice Cronk cautioned in R v. O.M., 2014 ONCA 503:

It is elementary that a complainant's credibility cannot be established by assuming the accused's guilt. Nor can an accused's evidence be rejected simply because the evidence of a complainant is accepted. W.(D.) precludes this "either/or" approach to the assessment of credibility. Instead, under the third step of W.(D.), the trial judge must ask whether, although she may not believe the accused's evidence, a reasonable doubt arises on the whole of the evidence that she does accept.

110Finally, I may accept all, part, or none of a witness's evidence (R v. Zimunya, 2013 ONCA 265 para. 4).

b) Issues

111The over-arching issue here is whether the Crown has proved that the accused is guilty of sexual assault based on the complainants' lack of consent to the sexual touching by him. The Crown submits that lack of consent has been established in one or more of the following four (4) ways:

Traditional lack of consent: The Crown invites me to accept the complainants' evidence that at various instances during the prolonged sexual activity with the accused they withdrew their consent, with both words and gestures, which they said the accused ignored. His persistence in engaging in sexual touching beyond their withdrawal of consent, it is argued, amounts to a sexual assault.

Consent vitiated by identity fraud: Whatever agreement to sexual activity that the accused may have brokered online with the complainants in advance, under the auspices of his fictional role as manager of an erotic spa service, were obtained by fraud. It is argued that the purported consent granted by the complainants to engage in sexual activity with a non-existent VIP "john" was vitiated, as it was a fraud that went directly to the identity of the sexual participant.

Consent vitiated by non-payment: In addition, the notional consent granted by the complainants which was premised on the exchange of sex for substantial financial reward was vitiated by non-payment.

Consent vitiated by bodily harm: That the damage caused to each of the complainant's breasts, amounting to bodily harm, was subjectively intended by the accused, thereby vitiating their consent.

c) Similar Act Application

112The Crown has brought what is known as a "count to count" similar fact evidence application, which the parties agreed would be dealt with not as a pre-trial motion, but an argument as to admissibility at the conclusion of the case. This procedure was confirmed by the SCC's decision in Last, 2010, 2009 SCC 45 (CanLII), 247 C.C.C. (3d) 449 (SCC).

113The Crown here is asking me to consider evidence relating to each of the complainant's allegations of sexual assault by the accused when considering the allegations in relation to the other.

114Evidence of other acts of discreditable conduct is presumptively inadmissible. This rule is intended to prevent the prejudice that is caused by judging individuals based on their general character rather than on probative evidence, and to prevent trials of the specific allegations charged from becoming distracted or confused. Justice McLachlin (as she then was) explained the essence of the similar fact evidence rule with great clarity in R v C.(M.H.), 1991 CanLII 94 (SCC), [1991] 1 S.C.R. 763, at paras. 771-72:

Evidence as to disposition, which shows only that the accused is the type of person likely to have committed the offence in question, is generally inadmissible. Such evidence is likely to have a severe prejudicial effect by inducing the jury to think of the accused as a "bad" person. At the same time it possesses little relevance to the real issue, namely, whether the accused committed the particular offence with which he stands charged. There will be occasions, however, where the similar act evidence will go to more than disposition, and will be considered to have real probative value. That probative value usually arises from the fact that the acts compared are so unusual and strikingly similar that their similarities cannot be attributed to coincidence. Only where the probative force clearly outweighs the prejudice, or the danger that the jury may convict for non-logical reasons, should such evidence be received.

Thus, where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted.

115The burden on a similar fact evidence application is on the Crown to prove on a balance of probabilities that the probative value of the evidence outweighs its presumed prejudicial effect. The Crown must demonstrate a connectedness, far beyond ambiguous or generic details, between the transactions affording probative value on specific issues for which there is an objective improbability of coincidence. In performing this preliminary determination, the trial judge must also consider all of the dissimilarities between the alleged acts as well as the strength of the proposed evidence, including any potential for collusion. R v. Handy, 2002 SCC 56 (CanLII), 164 C.C.C. (3d) 481 (S.C.C) at paras. 31, 41, 45, 69-82, 99-101; R v. J.F., [2010] O.J. No 3415 (SCJ) at para 176; R v. J.V., 2015 ONCJ 815 (CanLII), [2015] O.J. No. 7735 (C.J.) at para. 15.

116As Justice Hill explained in R v. J.F., supra, at para. 133: "[t]he cogency of the evidence, derived from the improbability of coincidence, increases as the fact situation moves further to the specific end of the spectrum - also described as an 'observed pattern of propensity operating in a closely defined and circumscribed context'". See also Handy, at paras. 87, 90, 110.

117Even when evidence disclosing the discreditable character of the accused is admitted to support proper, specific inferences, it is only to be used for those inferences and not to draw the prohibited inference of general disposition: Handy at 55.

118In Handy, the court suggested a non-exhaustive list of factors which assist the court's evaluation of the degree of similarity between the proposed similar fact evidence and the offence(s) charged:

• Proximity in time of the similar acts;
• Extent to which the other acts are similar in detail to the charged conduct;
• Number of occurrences of similar acts;
• Circumstances surrounding or relating to the similar acts;
• Any distinctive feature(s) unifying the incidents;
• Intervening events;
• Any other factors which would tend to support or rebut the underlying unity of the similar acts. (Handy, at para. 82)

119I must remain mindful of the potential for similar act evidence to invite either moral and reasoning prejudice. Moral prejudice occurs when an inference of guilt is drawn from evidence of general disposition or discreditable character at large. Reasoning prejudice arises when the evidence distracts the trier or leads to sentiments of revulsion as opposed to dispassionate analysis (Handy, at paras. 74, 139, 144-5; J.F. at paras. 132, 139; R v. Arp, 1998, 129 C.C.C. (3d) 121 at paras. 45-48 (S.C.C.)).

120The danger that a conviction will be rooted in either reasoning or moral prejudice is significantly lessened in trials by judges sitting alone. R v. J.M., 2010 ONCA 117 (CanLII), [2010] O.J. No 585 (C.A), at para. 88.

121The Crown argues that G.C. and T.A.'s accounts of their interaction with Mr. Sanmugarajah, both in their online exchanges, but more particularly in their physical and sexual interaction with him, satisfy the legal threshold for admissibility, and are relevant and probative of the following issues:

• Credibility
• Actus reus -- whether the complainants consented;
• Mens rea -- whether the accused honestly but mistakenly believed that the complainants had consented to all of the sexual activities engaged in;
• Whether the accused has a propensity to force sexual conduct with female partners beyond what the women consented to, particularly through aggressive breast-sucking and fellatio.

122The Court in Handy cautioned against the admission of similar act evidence as probative of the general issue of credibility. As it stated at paragraphs 115 and 116:

The Crown says the issue generally is "the credibility of the complainant" and more specifically "that the accused has a strong disposition to do the very act alleged in the charges against him", but this requires some refinement. Care must be taken not to allow too broad a gateway for the admission of propensity evidence or, as it is sometimes put, to allow it to bear too much of the burden of the Crown's case (Sopinka, Lederman and Bryant, supra, at § 11.26). Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence.

Anything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant. Identification of credibility as the "issue in question" may, unless circumscribed, risk the admission of evidence of nothing more than general disposition ("bad personhood").

123Were the Crown simply seeking to tender the evidence for the sole purpose of enhancing the credibility of the witnesses, I would not conclude that the similar fact evidence is probative of an issue at trial. However, in his detailed written and oral submissions, Ms. Bernstein for the Crown has narrowed the issue in question to consideration of consent as it relates to the "distinctive nature" of the types of sexual conduct alleged to have been committed with each complainant. He suggests that the similar act evidence is probative of a "situation-specific" propensity to engage in such conduct, and to rebut the inference of innocent association or fabrication by the complainants.

124The probative value of similar fact evidence has been recognized in cases were the similarity between the allegations shows an underlying unity or system of course of conduct which provides a connecting link between them. The evidence in these circumstances is probative of truthfulness of the accounts of the complainants in relation to whether the offences occurred, and to show a pattern of similar behavior that confirms that the offences took place as described. (R v. R.B., [2005] 3575 (C.A.) at para. 11; R v. T.C., 2005 CanLII 371 (ON CA), [2005] O.J. No. 24 (C.A.) at para. 56).

125The Crown submits that the complainants' evidence demonstrates a consistent pattern of strikingly similar behavior by the accused, both online and in the real world, which is probative of each of the issues for which admissibility of the evidence is sought. The pattern, says the Crown, began with Mr. Sanmugarajah's use of the same elaborate Craigslist ruse to set up a false "date" with each woman, under the pretext of a promised generous payment, as a fictional erotic spa owner. With each complainant, he sought their agreement in advance to a "laundry list" of sexual activities, including the distinctive request for possible breast-sucking, which might be a "little hard". Finally, it is suggested that this pattern included his failure to cease his activities (in particular, breast-sucking and aggressive fellatio) when both women demonstrated that they were no longer consenting.

126The defence admits that there are similarities in the allegations between the two complainants, as well as in the circumstances surrounding, and context of the two occurrences. It is noted that that the incidents are temporally distinct (two years apart) and suggests that the allegations of forced fellatio are not so similar as to foreclose the possibility of a coincidence.

127I find that the proposed similar fact evidence is probative to the live and material issues of credibility of the complainants' accounts in relation to whether the offences occurred, actus reus, mens rea and rebuttal of defences including denial and fabrication. I find that the evidence bears a sufficient number of striking similarities which cannot be attributed to coincidence. In arriving at this conclusion have considered the following factors.

128G.C. and T.A. don't know each other. There is no basis for, or suggestion of any collusion between the two complainants. The allegations occur and are reported approximately two years apart.

129In considering the most critical of the Handy factors, namely, "the circumstances surrounding or relating to the similar acts" and the presence of "any distinctive features unifying the incidents", I make the following observations. First, as stated above, the accused has admitted to using the same ruse to engage in numerous online exchanges with both complainants leading up to each of the incidents giving rise to the charges. He recycled the same script of fictional characters, and followed the same pattern of exchanges in his lead-up to the final message to each woman in which the 'laundry list" of expected sex acts were particularized by him.

130Beyond the identical electronic transmissions both before and after the allegations of misconduct are the following similarities between those emails, and within the specific allegations said to have occurred inside the room:

• Both allegations occurred at the same hotel;
• The emails with both women referred to "a little hard" breast sucking, and a "special spray" to deal with any 'marks';
• The emails to both women directed them to tell the client to "suck boobs harder";
• Both women described the accused's aggressive sucking or biting of their breasts;
• Both women described the sucking as being beyond what they would expect to experience from kissing or light sexual sucking;
• Both complainants testified that they expressed and demonstrated pain in response to the accused's aggressive conduct with their breasts;
• Both complainants testified that they asked the accused to "stop" or "please stop" when he was biting their breasts;
• Both women alleged that the accused ignored their protests and continued;
• Both women observed red marks or bruising to their breasts immediately following the incident, which they photographed;
• Both complainants described the accused's placement of his legs over their shoulders after they had begun an act of fellatio on the bed;
• Both complainants described the accused using his knees on either side of their heads as a 'clamp' to hold their heads in place, and their mouths on his penis;
• Both complainants struggled, spoke or gestured to express their lack of consent to this activity and their wish to be released from this position;
• The accused ignored their signals and maintained physical control of them with his legs and hands in order to force their mouths to remain on this genitals;
• The accused ejaculated into both complainants' mouths, despite having been told by both women that they did not consent to swallowing ejaculate.

131I acknowledge that there were some differences between the allegations, however in my assessment these could only be described as minor. With T.A., the oral sex started on the couch area, before it moved to the bed where the conduct resumed and he placed his legs over her shoulders in the 'head lock' position. G.C.'s experience of forced fellatio did not include this two-stage process. T.A.'s also alleges that the accused struck her buttocks with his hand during their sexual contact, a feature which is not alleged by G.C. Notwithstanding these distinctions, I find that there are a preponderance of similarities between the allegations of the two complainants, as they relate to the context and mechanics of the allegations of sexual misconduct. There could be no possibility of coincidence as an explanation.

132Despite the subtle differences between the occurrences in this case, I find that there is a connectedness, far beyond ambiguous or generic detail, between the allegations of G.C. and T.A., thereby affording probative value on the issues in question.

133In making the final assessment of prejudice, I note that the seriousness or severity of each occurrence is equivalent. They both involve allegations of sexual assault causing bodily harm to the same alleged areas of their bodies (their breasts).

134Finally, this is a judge-alone trial. Accordingly the potential for moral or reasoning prejudice is diminished. I find that in this case, the probative value of the evidence outweighs the prejudicial effect.

135The evidence of each complainant is therefore admissible as evidence of other acts of discreditable conduct of the accused.

136Having determined the threshold admissibility of the similar act evidence, I must now proceed to consider all of the available evidence, inclusive of the similar act evidence admitted only on the issues in question, in the resolution of the ultimate issue of whether the Crown has discharged its burden of proving Mr. Sanmugarajah's guilt of sexual assault causing bodily harm beyond a reasonable doubt.

d) The Elements of sexual assault

137There is no issue in this case that Mr. Sanmugarajah touched both G.C. and T.A. intentionally and that the physical contact was of a sexual nature. Therefore the Crown must prove that the complainants did not consent (actus reus) and that the accused did not have an honest but mistaken believe in consent (mens rea).

138In its seminal decision in Ewanchuk the Supreme Court of Canada expressed what has become and effective checklist for the core elements of the sexual assault provisions, and their intended application. These concepts include:

• the actus reus of sexual assault is unwanted sexual touching.
• the absence of consent, as an element of the actus reus, is purely subjective. It is to be assessed only by reference to the complainant's internal state of mind toward the touching, at the moment it occurred;
• the complainant's testimony is the only source of direct evidence as to her state of mind, however, credibility on this issue must be assessed by the trier of fact in light of all of the evidence;
• the complainant's words or actions, before and during the incident, may raise a reasonable doubt against her assertion that in her mind, she did not want the sexual touching to occur
• The trier of fact may come to only one of two conclusions: the complainant either consented, or she did not. If the trial judge accepts the complainant's evidence regarding the absence of her consent, the actus reus is established. There is no third option of "implied consent";
• The mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched;
• The accused assert an honest but mistaken belief in consent in denial of his mens rea. Part of this assessment may include reference to the accused's perception of the complainant's state of mind;
• Not all beliefs upon which an accused might rely will exculpate him. His belief that silence, passivity or ambiguous conduct by the complainant amounts to her consent will not provide a defence;
• If the complainant expresses, by her words or conduct, an unwillingness to have sexual contact, the accused must ensure that she has truly changed her mind before proceeding with further intimacies. He cannot rely on a mere lapse of time or the complainant's silence or equivocal conduct is indication of the complainant's permission or consent to proceed. Nor can he engage in further sexual contact to "test the waters".

139The Supreme Court has emphasized that consent under s. 273.1 is defined in a robust manner which protects and promotes personal integrity of every individual. As Justice Major explained, sexual autonomy is the core concept emanating the criminalization of sexual assault:

…Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non –consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner" (para. 28).

140In R v. C.P., 2017 ONCJ 221, at para. 66, Justice K. Crosbie provided a very helpful distillation of the Supreme Court's more recent observations on the nature of consent in R v. J.A., 2011 SCC 28 (CanLII), [2011] 2 SCR 440:

• Consent requires a conscious, operating mind, capable of granting revoking or withholding consent to each and every sexual act;
• A complainant has to be given the ability to decide, at each and every point of sexual activity, whether and on what terms she is willing to engage in the behavior;
• A complainant must be able to evaluate each and every sexual activity or encounter;
• A complainant must be able to change her mind partway through and withdraw her earlier consent. As the Chief explained, "Parliament requires ongoing, conscious consent to ensure that women and men are not victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point" (paras. 3, 21, 34, 42, 43, 44, 60 and 66).

141If the trial judge believes beyond a reasonable doubt that the complainant did not voluntarily agree to the sexual activity in question, or, withdrew her consent to engage in continued sexual activity, then the Crown will have proven the absence of consent.

Sexual assault is a crime of general intent (R v. Chase, 1987, 37 C.C.C. (ed) 97 (S.C.C.) at para. 12). The mens rea of sexual assault is established on evidence of an intentional application of force with knowledge of a lack of consent.

e) W.D. analysis and factual findings

142Resolution of the issues in this case requires that I first make assessments of credibility and determinations of fact. In so doing, I must instruct myself to adhere carefully to the instructions of W.D. I begin with my assessment of the evidence of the accused, Mr. Sanmugarajah.

i) Testimonial credibility of the accused Mr. Sanmugarajah

143With his usual professionalism, Mr. Humphrey began his submissions on his client's evidence with his candid concession that the conduct which brought Mr. Sanmugarajah before the court is "founded on deceit and dishonesty". Accordingly, he fairly acknowledged that an acquittal based on the first branch of W.D. was very unlikely to be available on his client's evidence. He suggested, however, that Mr. Sanmugarajah's evidence ought to at least raise a reasonable doubt as to his guilt. Mr. Humphrey argued that although Mr. Sanmugarajah was admittedly deceitful with each of the two complainants, when he testified in court he was at least honest about lying.

144Beyond the obvious and significant blemishes to the accused's credibility which inevitably flow from the nature of the prolonged deceptions which he admits to having perpetrated on both complainants, I found the accused's testimonial denials to be entirely unpersuasive in both content and presentation. I do not accept the evidence of Mr. Sanmugarajah. Nor is it sufficient to raise a reasonable doubt.

145The accused's explanation of having somehow found his way from a financial chat forum on Craigslist into a sex-themed room where he inadvertently discovered posts from the creator of an online scam designed to trick women into having sex, based on the illusion of their employment as escorts, simply defies credulity. I find that Mr. Sanmugarajah's evidence on this issue is a transparent effort on his part to distance himself from the deception which was the foundation for his subsequent conduct. I am satisfied that Mr. Sanmugarajah didn't find the scam online, he invented it himself. I make this finding based on both my assessment of his oral testimony, the transcript, as well as my review of all of the communications between the parties which have been entered as exhibits.

146I had the opportunity to carefully review all of the ads, as well as all of the email exchanges between Mr. Sanmugarajah, the two complainants, and Constable Machado. Combined, they capture over 60 pages of correspondence. Mr. Sanmugarajah's admission that he was the author of the back-and-forth exchanges with the women, but not the author of the "laundry list" and other sexual instructions which he claims he simply copied from the chat room, is absurd. It is readily apparent from the syntax, spelling and punctuation of all these materials, that they were created by the same author, and that the author was the accused. Mr. Sanmugarajah's evidence of having made only two minor revisions to the list (namely, the exclusion of anal sex, and inclusion of "boob sucking a little hard") was also illogical. On his evidence, the reference to the spa having a relief spray available to remove any marks left on the women's breasts was part of the original message which he claims to have cut and pasted. Yet he testified that it was he who inserted the portion related to vigorous breast-sucking.

147Mr. Sanmugarajah conceded in cross-examination that his proficiency in oral and written English isn't very good. I reject his evidence that he merely modified a few words of what was otherwise a boiler plate script, replete with coincidental spelling and grammatical errors, lifted from a chat room. I find as a fact that Mr. Sanmugarajah authored the advertisements, email exchanges, and all of the details included within each of these, of his own accord and in accordance with his own personal sexual preferences.

148Even Mr. Sanmugarajah's testimony about the circumstances of his arrest was patently incredible. He testified that upon knocking on the hotel room door on January 17, 2017 with the anticipation of scamming yet another woman for sex under his assumed guise as a fictional "John", he heard a voice from inside saying "police lay down". He testified that he immediately followed the request, and lay down outside the door. He said he didn't see any officers coming out of the room, and he certainly didn't try to run away, or put up a fight. I have no difficulty in rejecting the accused's evidence on this issue as it simply defies credulity as well as common sense. I prefer the evidence of Constable Darcy North, who described he and his partner opening the door, identifying themselves as police officers and articulating the words of arrest. In the next moment, Mr. Sanmugarajah turned and tried to flee. The officers' first attempts to gain control of the accused were frustrated by Mr. Sanmugarajah flailing his arms and kicking at the officers. Constable North was ultimately able to take him to the ground, and place him into handcuffs. While it may seem like an inconsequential point of the narrative, the impact of this portion of the accused's testimony on my assessment of his credibility was significant. The version of events which he gave to this court about his voluntary and passive surrender to the police was contrived by Mr. Sanmugarajah, I must assume, to cast himself in a more favourable light by the court. The result of his efforts led to the opposite result, namely, my determination that his evidence can neither be accepted nor raise a reasonable doubt as to the allegations.

149Of course my rejection of Mr. Sanmugarajah's evidence does not end my analysis. I must determine whether the Crown's evidence satisfies me of his guilt beyond a reasonable doubt. I will now move to my consideration of the evidence of each of the complainants.

ii) Ms. G.C.

150I found G.C. to be a straightforward, honest witness. Her evidence was consistent, and unwavering. She testified in a detailed, logical, reasonable manner. As the Crown emphasized in his submissions, there were numerous instances in her testimony when G.C. was quite noticeably restrained in her descriptions of the accused's conduct inside the hotel room. Having described her overall sense of feeling frustrated by all of the instructions she had received by the spa, and resigned to essentially go along with it, she was careful to characterize Ms. Sanmugarajah's conduct in the earlier part of the narrative as "tolerable", and unforced. She distinguished between his actions which she considered to be acceptable or "moderate" and to which she had consented, and those which were painful, "really hard" or to which she had not consented.

151There is one area of G.C.'s evidence which requires particular scrutiny: her testimony with respect to duration of her bruising. It is not disputed that G.C. had several visible bruises to her breasts which appeared immediately following the incident. Mr. Sanmugarajah admitted to having seen what he described as only "little hickeys" on her breasts before he left the hotel room. The photos which have been entered into evidence reflect several areas of significant, dark purple and blue areas of bruising to the area encircling both breasts, as well as both sides of her neck, and one shoulder. In her testimony, G.C. stated that it was over a month and a half until her bruises were fully resolved.

152G.C. was examined by her physician Dr. Dulay five days after the incident. On that date, Dr. Dulay confirmed and documented the extensive areas of bruising, as well as G.C.'s observed pain to her breasts and neck. She also documented a tear to the skin of G.C.'s right nipple, which G.C. attributes to having been bitten by the accused. There was discharge coming from this injury, for which Dr. Dulay prescribed an antibiotic. On February 23, G.C. saw Dr. Dulay for follow up. On this occasion, the doctor made notations of the bruising having resolved, the discharge from the infection as having cleared, and the absence of any tenderness to palpation. Mr. Humphrey submits that Dr. Dulay's objective observations of February 23 establish that G.C.'s evidence of her bruising and swelling having persisted for over a month is at least a gross exaggeration, and at worst, a deliberate intention to mislead the court and enhance the case against the accused.

153This area of G.C.'s evidence does give me some concern. While I accept that pain and tenderness are largely subjective assessments, internally drawn, bruises are marks which can be objectively or outwardly seen. There was clearly some exaggeration in G.C.'s evidence about how long the bruising lasted, given the objective evidence of Dr. Dulay. I am not persuaded, however, that this frailty in her evidence operates to undermine her overall credibility as a witness or to establish a motive on her part to fabricate false allegations against the accused. I am entitled to accept all, part or none of a witness' evidence.

154The photos of G.C.'s injuries are objective evidence which confirm the presence of extensive bruising to her body, consistent with her narrative of the accused having repeatedly sucked and bitten her breasts and shoulder during sexual activity.

155Bodily harm in section 2 of the Criminal Code is defined as "any hurt or injury to a person that interferes with the health and comfort of the person and that is more than merely transient or trifling in nature". The Supreme Court of Canada in R v. McGraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72 confirmed that this definition of bodily harm applies in the context of sexual assault.

156In R v. B.(D.), 2013 ONSC 7753, Justice Hill confirmed that our jurisprudence recognizes that "bruising can, depending on the totality of circumstances, amount to bodily harm" (at para. 131). The assessment of whether bruising constitutes bodily harm requires consideration of multiple factors, including: the location and mass of the bruising, its colour and duration, and the degree of interference with the complainant's health as well as physical and psychological well-being and comfort.

157The photos which were entered into evidence as Exhibit 4 were taken by G.C. the day after the incident. They do not include a ruler or scale which would allow me to describe the size of her bruises in inches or centimetres. What I can say is that the bruises to her breasts are large. They are deep red and purple in colour, and encircle both of her nipples in a large crescent shape. In addition to these large areas of bruising is a smaller bruise or bite mark, of the same colour, higher up on her right breast. There are also two circular areas of dark red and purple on either side of her neck, and yet another to her left shoulder.

158Dr. Dulay's first examination of G.C. was five days after the incident, on February 18, 2015. G.C. reported having been bitten on her breasts and to suffering bruising and pain in that area. Dr. Dulay examination confirmed the presence of yellow bruising around both of her breasts, as well as a tear of just under one cm to the right nipple. The nipple area had become infected from the tear and discharge was present. She prescribed an antibiotic to G.C. for her breast infection. On subsequent examination, on February 23, she noted that the infection was still resolving, but the bruising had resolved. The pain reportedly persisted.

159I have no difficulty in concluding that bruising to G.C.'s breasts, shoulder and neck constitute bodily harm. The bruising was dark, and covered a significant portion of both of G.C.'s breasts as well as areas on her neck and shoulder. In addition to the bruising, the skin of G.C.'s right nipple was torn as a result of the accused's prolonged gnawing of her breast. This tear triggered an infection, which was painful, prolonged, and prompted G.C. to attend a walk-in clinic for a second prescription to deal with the pain from that infection. I find that her well-being, both physical and psychological were impacted in a manner that was neither trifling nor transient. Bodily harm has been established beyond a reasonable doubt.

160Further, in considering her overall credibility, I am satisfied beyond a reasonable doubt that the essential facts of narrative of her interaction with Mr. Sanmugarajah are as G.C. described them. In particular, I accept that her evidence establishes that during the course of their sexual conduct, Mr. Sanmugarajah forcefully bit her on her shoulder without her consent, causing her bodily harm. Further, I find that during an act of fellatio he positioned his legs over her shoulders, and pressed his knees up against the side of her head to prevent her from moving. I accept G.C.'s evidence that she demonstrated and expressed her lack of consent to this conduct by both her words and gestures. Mr. Sanmugarajah ignored her resistance, and was seemingly aroused by it. I accept her evidence that he held her head in place while he ejaculated into her mouth. Finally, I accept G.C.'s evidence that for a prolonged period of time, Mr. Sanmugarajah aggressively sucked and gnawed on her breasts in a manner which she had not consented to, and that he persisted in doing so while she begged him to stop. As I have stated earlier, I find that this latter conduct resulted in bodily harm to G.C.'s breasts.

161I conclude that the allegation of sexual assault causing bodily harm against G.C. has been established beyond a reasonable doubt.

iii) T.A.

162At the time of these allegations, T.A. was a 28 year old woman from Bangladesh who had arrived in Canada on a spousal visa. It was apparent from her testimony that T.A. was an intelligent but somewhat unsophisticated woman whose decision to respond to Mr. Sanmugarajah's ad was prompted by pure desperation. T.A. had become the sole income earner for family as a result of her husband's severe health problems. She had previously worked in some IT positions and at fast food restaurant found. She knew absolutely nothing of the world of online escorting.

163An example of T.A.'s discomfort or naiveté was her persistent use of the phrase "private parts" to describe Mr. Sanmugarajah's genitals during her oral testimony. Even while describing her own participation in a variety of explicit sexual activities with him, it was apparent that T.A. remained quite shy and was resistant to using anatomical terms to describe these events. This feature of her testimony was consistent with tone and tenor of her email exchanges with the accused leading up to the incident.

164Notwithstanding her obvious discomfort, I found T.A.'s narrative to be rich in detail and carefully and honestly delivered. She made reasonable concessions and acknowledged when she wasn't sure about parts of the incident. For example, she fairly conceded that that there was "nothing forceful" about the initial acts of intercourse, or fellatio. She said her mouth was experiencing some discomfort during this latter transaction, but "not too much". On the issue of biting her breasts, she acknowledged that she wasn't sure if it happened more than one time, but on the occasion which she did remember, it was a very hard bite, which involved his teeth, and it hurt. These are but a few examples of what I perceived to be T.A.'s efforts of providing fair and balanced testimony.

165Mr. Humphrey suggests that T.A.'s credibility was fatally undermined by the revelation, in cross-examination, of additional emails between she and the accused following the incident, which she had neither provided to the police nor referenced in her earlier testimony. I am urged to find that the threatening content of these emails (ie: "I don't care whatever I Hv to do for this I will do, I want money") together with her 'double-deleting' of only these communications belies T.A.'s motivation to fabricate criminal allegations against the accused in order to extort payment, and publicly punish him. Respectfully, I do not make this finding.

166T.A. told Constable Machado on January 5 that she was providing her with all the emails that she had, but stated that she didn't have them all, as she knew she had deleted some. She conceded in cross examination that she didn't clarify which ones she didn't have, but maintained that she had been truthful when she told them that they weren't all there. She testified that after the incident, as she was coming to the realization of what had just happened, she was upset, angry and afraid. I accept her evidence that at that moment, she was in a heightened state of panic, in which she became even more concerned with her husband's discovery of the messages, and wanted to distance herself from the entire experience. As Justice Koehnen of the Superior Court of Justice in Toronto so aptly observed in R v. Dadson, 2018 ONSC 4823, at para. 31, "[t]here is no one way for victims of sexual assault to behave". I don't accept that T.A.'s conduct in relation to these emails supports a motive to fabricate or fatally undermines her credibility with respect to her allegations of sexual misconduct by the accused within the hotel room.

167Overall, I found T.A.'s account of the incidents of breast biting, and of fellatio on both the couch, and later the bed, to be particularly detailed and credible. While testifying as to the positioning of the parties during these incidents, she used frequent gestures with her head and hands as if to re-enact or demonstrate how she had been pinned by the accused's legs. Among the notable events which T.A. described at the conclusion of the last act of fellatio was Mr. Sanmugarajah's forcing her head down onto his penis while he ejaculated into her mouth, causing her to vomit. While testifying as to this point, T.A. visibly shuddered after reciting her account. It was apparent that her detailed testimony was based on her very clear memory of these events, as opposed to fabrication.

168The similar act evidence of G.C.'s account with respect to the accused's distinctive positioning and behavior during this sexual conduct served to support T.A.'s credibility and to rebut the suggestion of fabrication in my assessment of her evidence.

169With respect to the issue of bodily harm to T.A., I am not satisfied that the Crown's evidence has established this element beyond a reasonable doubt. My doubt arises on the third of the five 'prongs' expressed by Justice Tulloch for considering the offence of sexual assault causing bodily harm in R v. Zhao, 2013 ONCA 293. I am satisfied that the first two prongs have been satisfied. First, that the accused intentionally applied force to the complainant, and second, that the application of intentional force occurred in a sexual context in which her sexual dignity was violated. The force which I find that he intentionally applied was the hard sucking as well as the one bite to T.A.'s breast. The context of this conduct was clearly of a sexual nature. The evidence does not satisfy me beyond a reasonable doubt, however, that the application of force resulted in bodily harm to T.A.

170The single photo which T.A. took of her breast following the incident is of extremely poor quality. It depicts a number of very small areas of spots to the skin which are darker than others. The examination by Ms. Keeler the day after the incident established that there were three areas of bruising which varied in colour from faint blue to red and purple. T.A. did not require any additional medical treatment, and testified that her pain subsided after she took two Tylenol the following day. I am not satisfied that the injuries to T.A. were beyond transient or trifling.

IV. Conclusion

171Lack of consent, as the actus reus of both offences of sexual assault, has been proved conventionally by the Crown beyond a reasonable doubt. The Crown has also established mens rea beyond a reasonable doubt. Both G.C. and T.A. said "no", with their words and gestures, when Mr. Sanmugarajah bit or sucked their breasts aggressively, and forced them to continue an act of fellatio against their will. He persisted, knowing that they did not consent.

V. Vitiated Consent

172It is beyond doubt that both G.C. and T.A.'s consent to sexual activity was granted in a context of a fraud. The remaining question is whether the particular fraud deployed by Mr. Sanmugarajah was sufficient to legally vitiate their consent to the sexual activity for which they had nominally agreed within the context of the fictional escort scenario which he had created.

173Section 265(3)(c) of the Criminal Code provides:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

174In Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, the Supreme Court of Canada considered whether the traditional common law requirement that only frauds going to the "nature and quality of the act" and to "identity" would qualify to vitiate consent to sexual activity was too restrictive to capture other circumstances of deceit in which consent should be deemed invalid.

175All seven members of the Court agreed that it was, although the concurring results of the seven member panel were delivered in three sets of reasons. The alleged deception which the Court addressed in that case was the accused's failure to disclose his HIV-positive status to his sexual partners. The facts of Cuerrier didn't neatly fit into either of the well-recognized categories of fraud, and the courts below had held that fraud was not available to the Crown as basis of vitiated consent.

176The Supreme Court determined that vitiated consent should be available in such cases. In reviewing the legislative history and plain language of s. 265(3)(c), the Court concluded that Parliament's intention was to move away from the rigidity of the common law requirement that fraud must relate to the nature and quality of the act. The repeal of the statutory language requiring this element was designed to provide a more flexible definition of fraud in assault and sexual assault cases. (at para 105).

177To be sure, frauds pertaining to the nature and quality of the act or the identity of the partner continue to afford a basis for vitiated consent. However, the Court in Cuerrier confirmed that there may be other acts of dishonesty giving rise to the risk of deprivation which can have the same effect.

178In determining which kinds of deception should qualify, Cuerrier suggests that the analysis begins with the basic elements of fraud: dishonesty and deprivation. The act of dishonesty must be related to obtaining consent to sexual contact, and must amount to either a lie or a deliberate failure to disclose "significant relevant factors". The duty to disclose will be commensurate with the risk(s) engaged by the sexual act. The nature and extent of the duty to disclose, if any, will always have to be considered in the context of the particular facts presented.

179To constitute a fraud, the dishonest act related to obtaining consent must also result in deprivation, which may consist of actual harm or simply a risk of harm. The risk of trivial harm will not suffice. The Crown must establish that the dishonest act (either falsehoods or failure to disclose) had the effect of exposing the person consenting to a significant risk of serious harm.

180The phrase "significant risk of serious harm" must be applied to the facts of each case in order to determine if the consent given in the particular circumstances was vitiated (Cuerrier, at para 139).

181Mr. Humphrey places considerable emphasis on the following passages from Justice Cory's majority reasons in Cuerrier to support his submission that the concept of fraud must be conservatively interpreted in light of the gravity of the consequences of a conviction for sexual assault and the aim of avoiding trivialization of the offence:

To say that any fraud which induces consent will vitiate consent would bring within the sexual assault provisions of the Code behavior which lacks the reprehensible character of criminal acts. Let us consider some of the situations which would become criminal if this approach were followed.

In these examples I will assume that it will more often be the man who lies but the resulting conviction and its consequences would be the same if it were the woman. Let us assume that the man lied about his age and consensual sexual act or acts then took place. The complainant testifies and establishes that her consent would never have been given were it not for this lie and that detriment in the form of mental distress, had been suffered. Fraud would then be established as a result of the dishonesty and detriment and although there had been no serious risk of significant bodily harm a conviction would ensure.

The same result would necessarily follow if a man lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess. The evidence of the complainant would establish that in each case the sexual act took place as a result of the lie and detriment was suffered. In each case the consent would have been obtained by fraud and a conviction would necessarily follow. The lies were immoral and reprehensible, but should they result in a conviction for a serious criminal offence? I trust not. It is no doubt because of this potential trivialization that the former provisions of the Code required the fraud to be related to the nature and quality of the act. This was too restrictive. Yet some limitations as to the concept of fraud as it applies to s. 265(3)(c) are clearly necessary or the courts would be overwhelmed and convictions under the sections would defy common sense. The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action. However it should not provide the foundation for a conviction for sexual assault. The fraud required to vitiate consent for that offence must carry with it the risk of serious harm. This is the standard which I think is appropriate and provides a reasonable balance between a position which would deny that the section could be applied in cases of fraud vitiating consent and that which would proliferate petty prosecutions by providing that any fraud which induces consent will vitiate that consent.

182Borrowing a line from Justice Fish in R v. St. Laurent, 1993, 1993 CanLII 4380 (QC CA), 90 C.C.C. (3d) 291 at para. 26, Mr. Humphrey emphasized in his submissions that "not all liars are rapists". He concedes that his client is a liar, for having used a fictional identity and cheated the complainants of the money they were promised in exchange for the sex that was given. However he submits that neither Mr. Sanmugarajah's deception with respect to non-payment or lies as to his identity are sufficient to vitiate the consent to sexual activity which the complainants provided in their extensive online exchanges.

183Mr. Humphrey made no attempt to minimize his client's deceit or to characterize his conduct as morally acceptable. Indeed, he described his conduct's admitted behavior perpetrating a financial fraud on the complainants (by either grossly under-paying, or not paying them at all) as "morally reprehensible" and potentially actionable either as a traditional fraud under s. 380 of the Code, or through a civil action. He urged the conclusion that it was however not a deception capable of vitiating consent and grounding conviction on a criminal standard for the offence of sexual assault.

184The majority judgment in Hutchison, 2014 SCC 19 offers some support for Mr. Humphrey's submission. At paragraph 72, Justice McLachlin stated:

To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case [namely, a significant risk of serious bodily harm]. For example, financial deprivations or mere sadness from being lied to will not be sufficient. [emphasis added]

185There is a dearth of cases dealing specifically with non-payment for sexual services as a potential basis of vitiating consent to sexual activity under s. 265(3)(c). The Crown provided me with the only Canadian case which appears to have dealt with this issue directly: R v. Petrozzi, [1987] B.C.J. No. 1123 (C.A.). The BCCA held that the fraud of non-payment of a prostitute in that case did not go to "nature and quality of the act" or "identity" and therefore did not operate to vitiate consent.

186Mr. Bernstein has also provided me with the decision of the Saskatchewan provincial court in Gartner, in which that court rejected the argument that Cuerrier stands for the proposition that "sex for money when money is not exchanged is fraud but not assault". In obiter, Justice Turpel-Lafond observed:

…if this position were accepted generally in sexual assault cases, then a "rape myth" would be resurrected. This myth or stereotype that a prostitute's consent to sex is less worthy of protection at criminal law than is that of other women. In other words, the Court would then have to endorse the view that women in the sex trade are not harmed when they do not consent because they are engaged in sex for money anyway and hence sexually available on different terms than other women.

187Having considered the few available authorities in support of the Crown's argument that on this issue, I am not convinced that our current jurisprudence would support a finding that non-payment for sexual services, standing alone, amounts to a fraud that vitiates consent.

188However it is clear that Mr. Sanmugarajah's deceit included more than just the element of non-payment. His conduct also included an elaborate deception as to his identity, and the surrounding circumstances of the staged sexual encounters.

189In Hutchinson the SCC held that the complainant's "voluntary agreement" to the "sexual activity in question" in s. 273.1(1) of the Code encompasses both the sexual nature of the activity in question" and the specific identity of the partner.

190Where the subjective state of mind of the complainant is that her consent hinged on the identity of her partner, her mistake about that identity renders his conduct non-consensual, whether or not the mistake is induced by fraud. The presence or absence of fraud may however be significant to whether the Crown can prove that the accused did not have an honest but mistaken belief that the complainant was consenting. (Crangle, at par 23)

191On behalf of the accused, Mr. Humphrey submits that the "identity" cases (Crangle, Alboukhari and Kench) are distinguishable on the basis that those cases dealt with circumstances wherein the accused essentially snuck in, under the cover of darkness, to take the place of another person with whom the women had previously consented to have sex. Mr. Humphrey accepts that consent is clearly vitiated in those circumstances -- where a stranger takes the place of a known partner. He argues that in this case, however, there was no deceit or mistake as to the person they were having sex with, given that the complainants' agreement was to have sex with a stranger, as opposed to a known partner.

192I cannot agree that the principles arising from these authorities are inapplicable to the facts of this case.

193In Kench, the Court recognized that active steps to personate or induce a complainant to consent based on a fraudulent act or misinformation about true identity may ground a finding of vitiated consent (at para 82).

194In both Alboukhari and Crangle, the Court of Appeal held that the reasonable steps requirement in s. 273.2(b) required the accused make his identity "perfectly clear" to the complainant. No such effort was made by the accused here.

195Mr. Sanmugarajah's deception of both complainants was prolonged, and complex. It went beyond a fraud relating only to non-payment, and included an elaborate ruse related to his identity and engaging issues related to the complainants' personal safety during the contemplated sexual act.

196The deception as to his identity was chiefly aimed at providing a false assurance of safety to both complainants during their prospective employment as escorts for the fictional spa. He was aware that security was a very real concern to both women. They had told him so explicitly in their exchanges. He acknowledged in his testimony that the biographical details of the fictional VIP client were among the assurances of security that were necessary to convince the women to sign on. He told the complainants that the company dealt only with "high end clients", all "non-Canadian", "100% safe". In additional to these representations, he assured each of them that the "manager" would be coming to meet them at the hotel to check on their welfare right after the client left.

197Both G.C. and T.A. agreed to have sex with a phantom character of Mr. Sanmugarajah's creation, deliberately designed by him to trick them into fulfilling his specific sexual desires, on the promise of huge payments which had no intention to ever make. Both women testified that their consent to participate in the sexual conduct in question hinged not only on the payment that they were promised, but the assurances that they were given about who they were to be having sex with, and the circumstances assuring their safety.

198Having concluded that the Crown has established the accused's guilt beyond a reasonable through conventional evidence of non–consent, I need not decide the issue of vitiated consent this issue in this case. However, given that the issue was so thoroughly and impressively argued before me by both counsel, I felt it appropriate to address the arguments.

199Although I am satisfied that financial deprivation alone is insufficient to vitiate consent, in my view, the combined effect of the many layers of Mr. Sanmugarajah's deception in this case go to the very nature of the transaction for which their consent was induced. If fraud were applied to vitiate consent in the factual circumstances of this case, I do not believe that the offence of sexual assault would be trivialized, or that the risk of "petty prosecutions" referred to in Cuerrier would be proliferated.

200On Count 1, in relation to T.A., I find Mr. Sanmugarajah not guilty of sexual assault causing bodily harm as charged, but guilty of the included offence of sexual assault.

201On Count 2, in relation to G.C., I find Mr. Sanmugarajah guilty of sexual assault causing bodily harm, as charged.

202Convictions will be entered accordingly.