Saturday, December 8, 2012


See this case. the court was indignant and "threw the book" at this fraudster who targeted seniors and unsophisticated investors and increased the sentence suggested by the Crown despite the immigration consequences that would flow from it.

R. v. Sanmugam

Between Her Majesty the Queen, and
Arvind Sanmugam, Defendant

[2012] O.J. No. 5647

2012 ONSC 6663

Court File No. CR-12-70000158-0000

 Ontario Superior Court of Justice

T. Ducharme J.

November 23, 2012.

(81 paras.)



I Introduction

1     Mr. Sanmugam entered a guilty plea to three counts of fraud contrary to s. 380(1)(a). I sentenced him on November 9, 2012. These are my reasons for sentence.

II. Position of the Crown

2     The Crown seeks a penitentiary sentence of three years and, relying on s. 719(3) of the Criminal Code submits that Mr. Sanmugam should be given credit for pre-trial custody on a one to one basis. Ms. David also asks for a restitution order in the amount of $1,109,405.

III. Position of the Defence

3     The defence suggests that the appropriate sentence for these offences was two years less a day to be followed by three years probation. Mr. LaBar did not argue that Mr. Sanmugam was entitled to enhanced credit for his pre-trial custody. However, he did emphasize the devastating effects that a sentence of two years or more would have on Mr. Sanmugam's immigration status. The defence joined in the request for a restitution order, with Mr. LaBar emphasizing Mr. Sanmugam's desire to make full restitution to his victims.

IV. Circumstances of the Offender

4     Mr. Sanmugam was born in 1960, although his counsel, apparently on Mr. Sanmugam's instructions, refused to tell me where he was born. I am told Mr. Sanmugam lived in India from the age of 14. He speaks English and Tamil and he learned French from 1974 to 1983 at the Alliance Française in India. He claims to have completed a B.A. in English Literature at Loyola College at the University of Madras in India. He subsequently enrolled in a M.A. in Public Administration at the University of Madras but he did not complete this program as he immigrated to Canada.

5     Mr. Sanmugam says that he came to Canada in 1985 to avoid any involvement with Tamil fighters who were active in southern India. He first came to Canada on a visitor's visa. He later was granted a Temporary Resident Permit which he has since renewed annually.

6     Mr. Sanmugam first worked as a night cashier at a Canadian Tire store and as assistant manager of a muffin shop at Union Station in Toronto. In 1986, he worked as a waiter at a Red Lobster restaurant and also taught English courses to new immigrants and refugees in Canada. From 1987 to 1996 his main source of income was from preparing reports on university and colleges in the US and Canada for foreign applicants. During this time he also invested in a variety of businesses in India all of which failed. The rise of the internet put an end to his university advisory business. From 1996 to 2000, Mr. Sanmugam provided guided tours for visitors to Toronto. From 2000 to 2005, Mr. Sanmugam continued to be involved in the tourism business. He did guided tours for people visiting the Maritimes and Quebec. In 2005, Mr. Sanmugam ran a business helping to arrange accommodations for new immigrants and refugees to Canada. From 2006 to 2010, Mr. Sanmugam was involved in what Mr. LaBar called "market commentary." I was not told anything more about this other than this is the subject of a separate proceeding before the Ontario Securities Commission.

7     In 2007, Mr. Sanmugam invested in a cafe and bakery company that ultimately failed. He also claimed to be involved with other business ventures. One was the Canadian Peacemakers Corporation which "sourced equipment to police training operations worldwide." Another business that he claimed to have been extensively involved in was the "World Police Academy." Apparently, he helped develop a police training academy located somewhere in India. The goal of this was to bring Canadian police forces to India for police training. I have not been provided with any further details about these organizations and am skeptical about whether or not they in fact exist. However, the Crown does not dispute these claims so I will accept them for what they are worth. I will observe that I find it curious that, if Mr. Sanmugam played such a pivotal role in an organization such as this, I have received no letters of support attesting to his good work in these areas.

8     Mr. Sanmugam claims to have been active in a variety of charitable organizations including the Word Wildlife Fund in both Canada and India. In 2009, Mr. Sanmugam claims to have been accepted into the MBA program at HEC [Hautes Études Commerciales] at the Université de Montréal. He did not complete this program due to his arrest but he hopes to complete this program after serving his sentence. Again, I have received no documentation attesting to his involvement in any of these charitable activities or his studies at HEC. However, as the Crown has not challenged these submissions, I will accept them for the purposes of sentencing.

9     Mr. Sanmugam married a Canadian woman in 1989 and in 1995 they had a boy. In 1998 the couple had a daughter. In 2001 Mr. Sanmugam separated from his wife and mother of two of his children. In 2002 Mr. Sanmugam began his relationship with Julie Wingink, another Canadian woman, with whom he still has a relationship. Ms. Wingink provided a letter of support to the court in these proceedings. They have had two daughters born in 2003 and 2004.

10     Mr. LaBar tells me that in addition to completing his MBA, he hopes to pursue various unspecified entrepreneurial interests after being released from jail. Mr. Sanmugam also describes himself as a writer and poet and indicates that he hopes to publish a book when he is released.

V. Circumstances of the Offences

11     Obviously the facts of the offence are a central consideration in determining the appropriate sentence in any criminal case. In particular, the nature of the offence and the accused person's role in the offence are very important in any assessment of his or her moral culpability.

12     Mr. Sanmugam held himself out as a licensed and educated "market commentator" and venture capitalist. He told his victims that he was educated at Cambridge University in England and that he named his securities company "Bunting & Waddington" after his favourite professors. He indicated to his victims that he had staffed his firm with many securities traders and that he was adept at making money for his clients. He targeted people who had no financial knowledge and who were not sophisticated in financial matters. Bunting & Waddington was never properly registered with the Ontario Securities Commission or with any of the other provincial securities commissions in Canada. Mr. Sanmugam was not licensed to trade securities or to offer advice in the trading of securities in any capacity in the Province of Ontario or anywhere else in Canada.

13     At the preliminary inquiry, Mr. Douglas Fox, Principal and Chief Compliance Officer of Risk Management Services Inc., was qualified as an expert in the area of securities trading and profit analysis with respect to Mr. Sanmugam's trading for two of the three victims. Mr. Fox noted in his expert report which was filed as an exhibit at the preliminary inquiry that with respect to the trading activity for both William and Barbara Blizzard and Tuhina Biswas, there "does not appear to be any method or system for the trading and it does not appear to follow any portfolio strategy."

Count 6: Barbara and Bill Blizzard

14     William and Barbara Blizzard are an elderly retired couple of frugal means who, at the material time, lived in Barrie, Ontario. They have no investment knowledge and are not sophisticated in financial matters. In early fall of 2007 the Blizzards were told of an amazing investment opportunity when Mr. Sanmugam travelled from Toronto to meet the Blizzards at their home. He told them that if they supplied him with $100,000, they could expect to make $8,000 profit each month. Their monthly fee for having Mr. Sanmugam invest their money was $3,500. The Blizzard's mortgaged their house and gave Mr. Sanmugam a total of $118,700 to invest at the beginning of September 2007. Over the course of time, the investment portfolio for the Blizzards made no money and the investment statements they received indicated that they were trading heavily in margin. The Blizzard's mistakenly believed that the margin amount (which was in the hundreds of thousands of dollars) was pure profit so they obligingly paid Mr. Sanmugam his $3,500 each month. They also withdrew from the capital and further contributed to the depletion of their investment account because they thought their portfolio was making the kinds of profits that Mr. Sanmugam promised. Their withdrawals were made in an effort to pay back the mortgage that the bank had granted them.

15     In November of 2008 the Blizzards began to get margin calls from TD Waterhouse Discount Brokerage where they had their investment portfolio account. They were not sure what margin calls were, but they became alarmed and tried to get in touch with Mr. Sanmugam. Mr. Sanmugam would not personally return their phone calls and instructed his assistant to re-assure them that everything would be fine. By this time the Blizzards had ceased paying Mr. Sanmugam the $3,500 fee because they could see that their portfolio was drastically reduced in value. The couple lost hope and lodged a complaint with the Investment Industry Regulatory Organization of Ontario ("IIROC"), but they received no assistance because Mr. Sanmugam was not licensed with this entity. They were told that their matter was being forwarded to the Ontario Securities Commission for review. In September of 2010 they read in the newspaper that Mr. Sanmugam had been arrested by the police in connection with the Zink and Biswas matters. They immediately filed a complaint with the police but by then there was no money left in their investment account. The Blizzards sold their house to pay off their mortgage and now live in rental accommodation. The Blizzard's loss totalled $118,700.00.

Count 5: Linda Zink

16     Ms. Zink is an elderly widow who lives in Vancouver, British Columbia. She has no investment knowledge and was always financially provided for by her late husband. She met Mr. Sanmugam in the fall of 2008 while she was on a visit to Toronto. One morning she was walking her grandchildren to Bishop Strachan School and she met Mr. Sanmugam who was dropping his children off at the same school. The two became friendly and began to speak with each other. Mr. Sanmugam told Ms. Zink that he was a professional investor and that if she would entrust her money with him, he would ensure that she would eventually have all her bills, credit cards and lines of credit paid off. He also promised her that she would eventually be able to afford a second residence in Toronto so she would have her own residence when she visited her grandchildren. Ms. Zink became interested and began to meet regularly with Mr. Sanmugam to discuss the investment plan.

17     Mr. Sanmugam told Ms. Zink that he would have to review her finances and tell her how much she should invest with him. He also warned her to keep their plans a secret so that she would not be talked out of the plan by anyone. Over a period of time, and under Mr. Sanmugam's direction, Ms. Zink transferred a total of $662,000 to Mr. Sanmugam by liquidating securities portfolios that her deceased husband had left her and by mortgaging her properties. She conveyed to Mr. Sanmugam all of her assets in secret. A production order obtained by the police show the amounts entering Mr. Sanmugam's account and they are then dispersed to other accounts that he controlled for the purposes of trading or for the purposes of supporting his other business ventures. Over time, Ms. Zink began to hear less and less from Mr. Sanmugam and eventually, her son inquired as to her relationship with Sanmugam and this was when the family discovered that she had lost her life savings to him.

18     Ms. Zink initiated civil proceedings against Mr. Sanmugam in April of 2009. Her total loss as a result of Mr. Sanmugam's fraud was $662,000.00

Count 7: Tuhina Biswas

19     Dr. Tuhina Biswas met Mr. Sanmugam on the "e-harmony" dating website in October of 2008. Mr. Sanmugam held himself out as a venture capitalist and owner of the securities investment firm Bunting & Waddington. He told Dr. Biswas that he had two degrees - one in English literature from Cambridge University in England, two MBA degrees as well as the Certified Financial Analyst designation. He also told Dr. Biswas that he had a PhD in Abstract Analysis. None of this was true. Sanmugam told her that he usually generated $150,000 a month from trading for his clients.

20     Sanmugam suggested that Dr. Biswas invest with him in an investment plan that would assist her in the financial support of her disabled brother. At the material time, Dr. Biswas' mother and brother lived in the house that her deceased father had provided from his life savings. There was no mortgage on the home prior to Dr. Biswas' involvement with Sanmugam. Dr. Biswas' brother requires almost $5,000 monthly in special care and medications and Sanmugam assured that his investment skills could easily provide that kind of financial support. In March of 2009, Sanmugam convinced Dr. Biswas to invest with him and at his urging, she opened an online trading portfolio with TD Waterhouse Brokerage. In order to provide capital for the investment, Dr. Biswas and her mother mortgaged their home and with the proceeds of that mortgage, they gave Mr. Sanmugam $328,705 to invest. Even though she is trained as a medical doctor, Dr. Biswas has no financial background and is an unsophisticated investor. Dr. Biswas' mother, Chitra, is a retired teacher and has no investment knowledge either.

21     Mr. Sanmugam continually told Dr. Biswas that her portfolio was profitable and that he was investing in reliable blue chip investments that provided predictable dividends. However, in reality, Sanmugam was trading on margin for the Biswas account and like the Blizzards, Dr. Biswas did not understand trading on margin and thought the sums in her margin account were profits instead of debt. Dr. Biswas withdrew cash from the capital in her investment portfolio under the belief that she was not depleting capital but only taking profit from dividend returns. Sanmugam would often move sums of money from the discount brokerage account into Dr. Biswas' chequing account or her mother's account and tell them these sums were profits that they could withdraw and spend in whichever way they wished. Sanmugam was able to do this because he had the password to Biswas' account.

22     At the same time and during the course of her relationship with Sanmugam, Dr. Biswas also lent him money to assist him with his many problems. In April of 2009 she learned that Mr. Sanmugam was being sued by Linda Zink so Dr. Biswas lent him money to assist with the legal bills from that lawsuit. Dr. Biswas also lent Mr. Sanmugam money to assist in his start up coffee company, Chez Lee Loo in India. Dr. Biswas estimates that she gave Mr. Sanmugam $170,000 in funds over and above the funds from the mortgaged home.

23     By November of 2009, Dr. Biswas' trading account had been seriously depleted of funds. In June of 2010, Dr. Biswas learned from a friend that Mr. Sanmugam had approached her friend on the same internet dating website which she found disturbing because in January of 2010, Sanmugam had asked her to marry him. Dr. Biswas became extremely concerned once Sanmugam was charged in May of 2010 with the fraud against Zink and around that same time she learned that Sanmugam was living in a common-law relationship with Julie Winget and that he had two children with her. She filed a report against Sanmugam with the police at the end of July 2010. Dr. Biswas' loss as a result of Mr. Sanmugam's fraud was $328,705.00.

VI. Relevant Principles of Sentencing

24     The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. The court attempts to achieve this purpose by imposing just penalties that have one or more of the following objectives:


·       (1) 

denouncing unlawful conduct [s. 718(a)]; 

·       (2) 

deterring this offender and others from committing offences [s. 718(b)]; 

·       (3) 

imprisoning offenders where necessary to separate them from law abiding members of society [s. 718(c)]; 

·       (4) 

assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment [s. 718(d)]; 

·       (5) 

providing reparation for harm done to victims of the community [s. 718(e)]; and 

·       (6) 

promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims and to the community [s. 718(f)]. 

25     Section 718.1 of the Criminal Code provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. Section 718.2 of the Criminal Code also requires the court to take into account other principles, including these:


·       (a) 

that a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or to the offender [s. 718.2(a)]; 

·       (b) 

that a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances [s. 718.2(b)]; 

·       (c) 

where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [s. 718.2(c)]; 

26     In R. v. Nasogaluak, [2010] 1 S.C.R. No. 206 the Court held at para. 43:


·       The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. [Citations omitted.] No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [Emphasis added.] 

27     The Courts have often emphasized, most recently in R. v. Drabinsky, that the dominant sentencing objectives in cases of large scale commercial fraud must be denunciation and deterrence. Given that the loss to the victims in this case totalled more than 1 million dollars, I think the same objectives are most important in this case. I will discuss each of these principles in turn.


·       (A) 


28     Denunciation as a principle of sentencing was explained by Chief Justice Lamer in R. v. C.A.M., [1996] 1 S.C.R. No. 500 (S.C.C.) at para. 81:


·       Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code


·       [Emphasis added.] 

29     In Drabinsky, the Court of Appeal made it clear at para 162 that the quantification of an appropriate sentence in a case such as this requires a consideration of denunciation. Specifically they linked the length of the sentence to its denunciatory effect. In this case, an appropriate sentence must denounce criminal conduct that targets vulnerable investors, that defrauds them of their life savings and has the potential of undermining confidence in the financial services sector.


·       (B) 


30     Justice Charron explained deterrence as a sentencing principle in R. v. B.W.P., [2006] 1 S.C.R. No. 941 (S.C.C.) at para. 2:


·       Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called "specific deterrence", when directed at others, "general deterrence". ... General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity. 

31     Given the nature of this offence and its surrounding circumstances, Mr. Sanmugam's lack of any marketable skills and his apparent intention to continue in the business world, I think Mr. Sanmugam presents a significant risk of re-offending. Thus, specific deterrence is certainly relevant to the sentence I must impose.

32     As for general deterrence, I recognize that the theory behind general deterrence has been questioned in some contexts.1 Critics of general deterrence question its validity on the basis that: (1) many crimes are relatively spontaneous and the offender does not stop beforehand to consider the possibility of being punished; (2) offenders are not aware of sentences imposed for particular crimes so the quantum of a sentence will not have a deterrent effect; and (3) even if an offender was aware of the range of sentences imposed for a particular crime, they would discount that range by the risk of discovery, apprehension and actual prosecution.

33     Despite these criticisms, general deterrence remains one of the objectives of sentencing that Parliament has prescribed in s. 718 of the Criminal Code. In fact, in my view, general deterrence is one of the principal sentencing objectives in cases like this. Moreover, the above criticisms have little or no applicability to cases of this nature: (1) Financial frauds of this nature are rarely, if ever, spontaneous crimes. (2) The persons committing these crimes usually do so after careful and detailed advance planning. This will often involve a cost-benefit analysis on the part of the fraudster. Thus, the imposition of significant sentences for such crimes by increasing the cost of punishment can alter that calculus and deter the fraud; and (3) Eventually almost all frauds of this nature will be discovered as the money required to maintain the illusion of a successful investment program will run out. When this happens even financially unsophisticated victims are likely to realize that they have been swindled, and given the stakes involved, they are likely to go to the authorities. If the fraudster is apprehended the chances of a successful prosecution are high given the paper trail that will have been left behind.

34     For all of these reasons I am of the view that general deterrence is particularly effective when dealing with criminals who are prepared to engage in large-scale, sophisticated financial frauds. Indeed, the Court of Appeal came to a similar conclusion in Drabinsky at para 159 where they stated:


·       The deterrent value of any sentence is a matter of controversy and speculation. However, it would seem that if the prospect of a long jail sentence will deter anyone from planning and committing a crime, it would deter people like the appellants who are intelligent individuals, well aware of potential consequences, and accustomed to weighing potential future risks against potential benefits before taking action 

35     Not only is general deterrence effective in this area but it is a critical sentencing objective given the impact of such crimes. These crimes not only victimize the direct victims and their extended families but they also have the potential to undermine public confidence in the financial industry more generally.

VII. The Appropriate Sentence


·       (A) 

The Relevance of Mr. Sanmugam's Immigration Status

36     I was initially told that if Mr. Sanmugam received a sentence of less than two years that he might be able to avoid deportation. As this was not my understanding of the law, I asked Mr. LaBar to provide some clearer information about the impact of this conviction and any sentence imposed on Mr. Sanmugam's immigration status.

37     The relevant portions of section 36 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] provide as follows:


·       Serious criminality 

36.(1) A permanent resident or a foreign national is
inadmissible on grounds of serious criminality for


·       (a) 

having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; ... 


·       Criminality 


·       36(2) A foreign national is inadmissible on grounds of criminality for 


·       (a) 

having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; ... 


·       Application 


·       36(3) The following provisions govern subsections (1) and (2): 


·       (a) 

an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily; 

·       (b) 

inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal; 

·       (c) 

the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; 

·       (d) 

a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; 

38     This makes it clear that the mere fact of being convicted of fraud contrary to s. 380 of the Criminal Code renders Mr. Sanmugam criminally inadmissible to Canada. This is true regardless of the sentence I impose.

39     The range of sentence does have a limited impact however due to the operation of s. 64 of IRPA which provides:


·       64(1) 

No appeal for inadmissibility 


·       No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. 


·       64(2) 

Serious criminality 


·       For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. 

40     Thus, if Mr. Sanmugam receives a sentence of more than two years, neither he nor his sponsor would not have the opportunity to appeal a decision denying his application for an immigrant visa to the Appeal Division of the Immigration and refugee Board. This is the only negative consequence that would flow from the imposition of such a sentence.

41     In considering the relevance of this fact I note that in R v Hamilton (2004), 189 O.A.C. 90 at para. 158 Justice Doherty said the following:


·       I would not characterize the loss of a potential remedy against a deportation order that might be made a mitigating factor on sentence. I do think, however, that in a case like Ms. Mason's there is room for consideration of the potentially added risk of deportation should the sentence be two years or more. If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for Ms. Mason, the trial judge could look at the deportation consequences for Ms. Mason of imposing a sentence of two years less a day as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender in the circumstances of Ms. Mason can be assisted or improved by imposing a sentence of two years less a day rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to someone like Ms. Mason by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence. [Emphasis added.] 

42     Thus, it is clear that the loss of this appeal right under s. 64(1) of IRPA is not a mitigating factor on sentence. Nonetheless, this factor move one to impose a sentence of two years less a day in a case where a sentence of "at or near two years" was otherwise appropriate. As will become apparent in the balance of my reasons, given the gravity of Mr. Sanmugam's crimes, I believe a two year sentence would be manifestly unfit. Thus, I need not consider any further the loss of an appeal right pursuant to s. 64 of the IRPA.


·       (B) 

Mitigating Factors

43     I consider the following to be mitigating factors in this case:


·       (a) 

Mr. Sanmugam has no prior criminal record; 

·       (b) 

Mr. Sanmugam has lived in Canada since 1985. 

·       (c) 

Prior to coming to Canada Mr. Sanmugam learned to speak French 

·       (d) 

Since his arrival in Canada, Mr. Sanmugam appears to have been steadily employed. In addition to working for others he has an entrepreneurial streak and it appears that he has been engaged in some legitimate business although his counsel concedes his entrepreneurial efforts have tended to fail. 

·       (e) 

Mr. Sanmugam purports to be an educated man. He claims to have a B.A. from Loyola College in India but I was provided no proof of this degree. Mr. Sanmugam also claims to be pursuing a graduate degree in business. At first I was told that this was at McGill University but then Mr. Sanmugam corrected his counsel and explained that it was actually at HEC Montréal. Once again, I was provided with no evidence that Mr. Sanmugam was ever actually a student there. Given Mr. Sanmugam's other dishonest claims about his educational background, I cannot help but view these claims with some healthy scepticism. However, as the Crown does not dispute these assertions, I will accept them as facts for the purposes of sentencing. However, it is clear that Mr. Sanmugam has not been pursuing his studies at HEC Montréal during the two years he is in custody and given the sentence I am going to impose and his immigration situation, I strongly suspect his studies at HEC Montréal are unlikely to resume. 

·       (f) 

Mr. Sanmugam has a relationship with a Canadian woman, Julie Winget, who is the mother of two of his children. Despite the nature of these offences and, in particular, Mr. Sanmugam's involvement with several other women, Ms. Winget wishes to continue her relationship with Mr. Sanmugam and she filed a letter of support with the court. 

·       (g) 

I accept that his plea has saved the necessity of a trial that counsel claim may have lasted three weeks. It has also spared some elderly victims from having to testify and undergo cross-examination. However, I do not view this plea as a sign of genuine remorse. Rather I think it constitutes acquiescence to the inevitable. The plea came late in the day and the timing of it was clearly motivated by a desire to avoid the immigration consequences of a sentence of over two years. I do not think there would have been any difficulty with proving Mr. Sanmugam's guilt with respect to these charges. 

44     This suggestion of remorse is significantly undercut by Mr. Sanmugam's composition "A Pig in Turd" a work that I would not dignify with the term poem. This vulgar drivel was an attack on his former assistant who was a complainant in other charges that have been withdrawn against Mr. Sanmugam and who had co-operated with the police investigators. His suggestion that her co-operation with the authorities "betrayed his love" and "demonstrated her evil" is not consistent with any genuine remorse. I accept Mr. LaBar's point that this was written several months prior to Mr. Sanmugam's decision to enter a guilty plea. But for Mr. Sanmugam's perspective to have so completely changed in only 3 or 4 months would require a conversion that would rival that of the Apostle Paul on the road to Damascus. I find any such suggestion farcical. But while I do not think Mr. Sanmugam has any genuine remorse, I do not regard this as an aggravating circumstance. Rather it is merely the absence of a mitigating factor that might have suggested potential for his long term rehabilitation.


·       (C) 

Aggravating Factors

45     I consider the following to be aggravating factors in this case:

(a) The Quantum of the Fraud

46     The total amount of the fraud by Mr. Sanmugam was $1,109,405. The Criminal Code was amended in 2004 to address sentencing in cases of financial fraud. As a result of these amendments various aggravating circumstances were added including 380.1(1)(a) the fact that the value of the fraud exceeded one million dollars. This amount alone makes it clear that it is a significant financial fraud.


·       (b) 

Breach of Trust

47     In presenting himself as a qualified financial planner, Mr. Sanmugam placed himself in a position of trust with respect to his victims. His fraud constitutes a serious breach of that trust.


·       (c) 

Number of Victims

48     Mr. Sanmugam defrauded four people, Mr. and Mrs. Blizzard, Ms. Zink, and Dr. Biswas over three discrete, consecutive periods of time. Not only did this have a significant impact on the immediate victims but it also had an impact on their victims. While this may not be the "large number of victims" referred to in s. 380.1(1)(c) of the Criminal Code I still regard this as an aggravating circumstance.


·       (d) 

Not a Spontaneous Crime

49     This was not a spontaneous crime but one that involved advance planning and a continuing effort to deceive. Not only is it a crime of dishonesty but it is one of considerable duration. The defrauding of the Blizzards took place over at least a 13 month period. The defrauding of Ms. Zink took place over a period of several months. The defrauding of Dr. Biswas took place over approximately 8 months and might have gone on longer if her trading account was not so depleted of funds by that time. Indeed, the defrauding of the immediate victims in this case took place over a period of two years.


·       (e) 

Crime of Greed

50     This was a crime of greed designed solely for the benefit of Mr. Sanmugam. I categorically reject the suggestion that Mr. Sanmugam was merely an unlucky financial adviser. In this regard I note that he lied about his expertise - holding himself out as a licensed and educated "market commentator" and venture capitalist. He lied about his fictitious securities company "Bunting & Waddington" and in particular about the fact that it was staffed by many securities traders. There is no suggestion that anyone else was involved in this crime or knowingly shared in the proceeds of it. Finally, as Mr. Fox the expert retained by the Crown observed with respect to the trading activity for the Blizzards and Dr. Biswas there "does not appear to be any method or system for the trading and it does not appear to follow any portfolio strategy."


·       (f) 

Callous Nature of the Fraud

51     This was a particularly calculated and callous fraud. Mr. Sanmugam targeted people who had no financial knowledge and who were not sophisticated in financial matters. In the case of the Blizzards and Ms. Zink, Mr. Sanmugam targeted elderly people whose vulnerability was increased by their age and, in the case of the Blizzards, their financial situation. I note with the aging of our population that more and more people may find themselves in a similar position as the Blizzards or Mrs. Zink. The targeting of such vulnerable persons is an especially aggravating circumstance.


·       (g) 

The scope and nature of that dishonesty.

52     While all frauds involve dishonesty Mr. Sanmugam's frauds are striking for the scope and nature of that dishonesty. He told outlandish untruths about himself and told similarly egregious lies about his fictitious company.

53     As for the nature of his dishonesty, Mr. Sanmugam was extraordinarily manipulative. The Blizzards were an elderly couple of limited means whose only real asset was the home in which they lived. Mr. Sanmugam exploited their wish for a more comfortable retirement in persuading them to mortgage their home and invest the proceeds to him. He also suggested that by investing with him they could help finance post-secondary education for their grandchildren. Linda Zink was an elderly widow with grandchildren in Toronto. She met Mr. Sanmugam when they were both dropping off their grandchildren at Bishop Strachan School. Mr. Sanmugam exploited that connection to her grandchildren suggesting that if she invested with him would permit her to eventually afford to purchase a second residence in Toronto where she could stay when she came to visit her grandchildren. Mr. Sanmugam persuaded her to keep this investment activity a secret. With Dr. Biswas he learned that she had a disabled brother whose care cost almost $5,000 per month. He suggested to her that investing with him would be a way to secure the necessary financing for his ongoing care.

54     As if the foregoing was not bad enough, the extent to which he was prepared to go is demonstrated by the fact that he asked Dr. Biswas to marry him. This was clearly just another way of manipulating her. At the time he was in a relationship with Ms. Winget, the mother of two of his children, as well as approaching at least one other woman on an internet dating website. While this deception was thoroughly reprehensible it was effective. Dr. Biswas lent Mr. Sanmugam money to defend a lawsuit brought by Linda Zink, one of his other victims. She also lent him money that was putatively to be used to start up a coffee company in India.

55     The nature and quality of these crimes is the most powerful and reliable indicator of Mr. Sanmugam's character.


·       (h) 

Devastating Impact on the Victims

56     The effect on all of the victims in this case was devastating as is powerfully made clear in their victim impact statements. The Blizzards lost the home they were going to spend their retirement in and the funds they were going to live on. It has been an enormous stress on their relationship. Mr. Blizzard blames himself for making the mistake of investing with Mr. Sanmugam and both Mr. and Mrs. Blizzard are taking medication for nerves. The effects of the fraud are that much worse given their age and financial situation.

57     Ms. Zink was 69 years old when she fell prey to Mr. Sanmugam. Her victimization has resulted in a serious decline in her health, both emotionally and physically. It has also had a serious impact on both Ms. Zink and her family. I could do no better than to quote her victim impact statement:


·       Arvind Sanmugam robbed me of all my monies, $662,000 four years ago. I was 69 years old. The emotional loss my family and I have suffered is horrific and ongoing and will be for the rest of our lives. For the past four years my pride, my dignity, my self-worth, my confidence and my health have been irrevocably damaged. Arvind Sanmugam has destroyed my spirit. 


·       My family's love and respect for me, their Mother, is diminished. They do not trust me to make financial decisions on my own. My son said: "Our lives have been changed forever. You didn't ask us for our advice when Sanmugam was telling you to go to the bank and secure a mortgage on your home in Vancouver. Nor did you ask us for our advice, when Sanmugam ordered you to sell your entire stock portfolio, and transfer the funds to him". Over a period of five months, beginning in October 2008, Sanmugam relentlessly took me down. 


·       Daily I have feelings of embarrassment. On many occasions I have felt suicidal. Every day I try to hold my head up and be brave. Daily I have to make a concerted effort to gain back my family's trust, love and respect for me, their Mother. Sanmugam's devastating crime has caused unalterable damage to me and my family. My adult children are scornful of me and they struggle with having to accept their Mother's stupidity. I have always been a trusting, happy, enthusiastic, friendly and open person. I had no idea what it meant to be the victim of such a terrible crime. I continually suffer from anger and anxiety. 


·       ... 


·       I am a woman, aged 73. I am now living the final chapter of my life. Before I met Arvind Sanmugam I was a very enthusiastic, energetic and positive person. Then Sanmugam stole all my money. I am now emotionally and financially depleted. I have no confidence and am demoralized and suffer from ill health. My three young adult children have been living the last four years of their lives in shock, sadness and disappointment in their Mother. I live with ongoing feelings of shame, disgust, anger and repulsion against Arvind Sanmugam. For me, it is often too much to bear. 

58     Ms. Zink has also had to share the family home that she had lived in with her late husband. Her children have also incurred over $80,000 in legal fees in an unsuccessful attempt to recoup the money from Mr. Sanmugam.

59     As for Dr. Biswas she has suffered an enormous sense of emotional loss and betrayal having been defrauded by a man that she thought she was going to marry in August, 2010. As a result of this fraud Dr. Biswas' mother has a mortgage on her home in the amount of $328,705.00 and is continuing to work even though she is now 69 years of age. Dr. Biswas has also had to pull her disabled brother out of the private day care he used to attend as they can no longer afford to send him there. She also has had to rent out her condo and live with her mother to save money. Her lifestyle has been dramatically changed and she has had to significantly adjust her plans for the future including when she will retire.

(i) No Restitution and No Realistic Prospect of Restitution

60     Mr. Sanmugam's victims have lost $1,109,405 as a result of these frauds. Mr. Sanmugam claims that he is determined to make full restitution. While both parties have requested a restitution order and I will make such an order, I do not think there is any realistic chance that Mr. Sanmugam will pay back any of the money he has taken from his victims. His protestations to the contrary are empty promises that are no more credible that all the other untruths he has told. Even, if Mr. Sanmugam is permitted to remain in Canada, a situation that I view as extremely unlikely, I see no way that he will ever be able to earn sufficient money to make restitution. He has no marketable skills and has never demonstrated an ability to succeed honestly in business. Of course, if Mr. Sanmugam is deported from Canada and is not permitted to return, these already miniscule prospects of restitution will completely evaporate.

61     For all these reasons, I do not think the position of the Crown adequately meets the necessary sentencing objectives. Indeed, in my view a sentence of three years is woefully inadequate for a financial fraud of this nature. The fact that a crime is a white-collar crime does not make it any less serious or deserving of a lighter sentence. While the sentence I impose will not restore the victims to the situation they were in, sadly no sentence can do that, it can send a clear message to other potential fraudsters in our community. That message is that they will be caught and, when they are brought before our courts, they will receive the harsh punishment they deserve.


·       (D) 

Should a Compensation Order Be Made?

62     As I have already noted both parties agreed that I should make a restitution order s. 738(1)(a) of the Criminal Code ordering Mr. Sanmugam to repay each of his victims the entire amount of their losses. Consequently neither party made submissions with respect to the propriety of making such an order in this case. I later alerted the parties to the decisions of the Court of Appeal in R. v. Taylor (2003), 179 O.A.C. 285 in which the Court declined to make a restitution order because the accused had no hope of repaying the amount of the fraud and such an order would impair his rehabilitation. As I was of the view that Mr. Sanmugam will not be able to make restitution, I invited counsel to make further submissions to me. Both counsel have reviewed the relevant case law and in their submissions to the court they have reiterated their joint position that a restitution order is appropriate in this case.

63     In R. v. Taylor (2003), 179 O.A.C. 285, the case that gave me pause, the appellant a pathological gambler defrauded his employer of $4,000,000 over a two year period. The trial judge recognized that the appellant would never be able to repay even a minute part of the loss but made the order to save his employer the extra expense of civil litigation to recover these monies. The court noted that a restitution order is a discretionary order and "should only be made with restraint and caution and not only in order to avoid putting the victim through the extra legal expense of going to the civil courts or as a substitute for civil procedure."2 They quoted with approval the comments of Justice Martin in R. v. Schreyer (1984), 16 C.C.C. (3d) 30 at 38, "It may be that in some cases it would be inappropriate to make a compensation order in an amount that is unrealistic to think that the accused could ever discharge." In the circumstances of the case the court concluded at para. 9:


·       There is no ability, as noted by the trial judge, to pay even the most minute part of this staggering amount, with no expiry date. It would kill all hope for the appellant for the future and it would likely impair his chances of rehabilitation. The order is clearly excessive and futile and the trial judge erred in that regard. 

64     While Taylor would not pose a problem in cases where the accused has the assets to make restitution, it suggests a more careful analysis must be made in a case such as this.

65     Similarly, in R. v. Gallagher (2008), 238 O.A.C. 153 the appellant was convicted of six counts of fraud relating to his defrauding a bank of $19,542.42. This case makes it clear why I asked for and received further submissions of counsel. In Gallagher the Court of Appeal set aside the restitution order saying at para 15:


·       The sentencing judge's reasons contain no explication of the basis for the restitution order. More importantly, it does not appear that the sentencing judge considered the appellant's ability to make restitution prior to the imposition of the restitution order. Nor, on the record before us, does it appear that any submissions were made to the sentencing judge concerning the appellant's means or that the sentencing judge was otherwise provided with any information about the appellant's personal financial circumstances. This court has indicated that while the ability to pay is not a precondition to the making of a restitution order, it is a factor, among others, to be considered by a sentencing judge in determining whether to impose the obligation to make restitution. See for example, R. v. Perciballi (2001), 154 C.C.C. (3d) 481 (Ont. C.A.); and R. v. Devgan (1999), 136 C.C.C. (3d) 238 (Ont. C.A.). In these circumstances, we are of the view that the restitution order cannot stand. 

66     In R. v. Biegus (1999), 127 O.A.C. 239, Feldman J.A. at para. 15 explained the possible impact of a restitution order on rehabilitation as follows:


·       A restitution order made by a sentencing court survives any bankruptcy of the accused: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 178(1)(a). Therefore, it is there for life. It is not intended to be such a burden that it may affect the prospects for rehabilitation of the accused. That is why ability to pay is one of the factors which the court must consider. 

67     The Court in Biegus also emphasized that a restitution order for the entire amount of a loss may not be appropriate where the proceeds of the crime were shared amongst several perpetrators.

68     In R. v. Devgan, (1999), 44 O.R. (3d) 161 (C.A.) Labrosse J.A. at pp. 168 to 169 set out a non-exhaustive list of factors relevant to the proper exercise of discretion with respect to the making of a restitution order pursuant to s. 725(1) of the Criminal Code, the predecessor to s. 738(1):


·       1. 

An order for compensation should be made with restraint and caution; 

·       2. 

The concept of compensation is essential to the sentencing process: 


·       (i) 

it emphasizes the sanction imposed upon the offender; 

·       (ii) 

it makes the accused responsible for making restitution to the victim; 

·       (iii) 

it prevents the accused from profiting from crime; and 

·       (iv) 

it provides a convenient, rapid and inexpensive means of recovery for the victim; 


·       3. 

A sentencing judge should consider: 


·       (i) 

the purpose of the aggrieved person in invoking s. 725(1); 

·       (ii) 

whether civil proceedings have been initiated and are being pursued; and 

·       (iii) 

the means of the offender. 


·       4. 

A compensation order should not be used as a substitute for civil proceedings. Parliament did not intend that compensation order would displace the civil remedies necessary to ensure full compensation to victims. 

·       5. 

A compensation order is not the appropriate mechanism to unravel involved commercial transactions. 

·       6. 

A compensation order should not be granted when it would require the criminal court to interpret written documents to determine the amount of money sought through the order. The loss should be capable of ready calculation. 

·       7. 

A compensation order should not be granted if the effect of provincial legislation would have to be considered in order to determine what order should be made. 

·       8. 

Any serious contest on legal or factual issues should signal a denial of recourse to an order. 

·       9. 

Double recovery can be prevented by the jurisdiction of the civil courts to require proper accounting of all sums recovered; and 

·       10. 

A compensation order may be appropriate where a related civil judgment has been rendered unenforceable as a result of bankruptcy. 

69     Justice Labrosse added at p. 169:


·       None of these considerations by themselves are determinative of whether a compensation order should be granted. The weight to be given to individual considerations will depend on the circumstances of each case. Nor is the preceding list intended to be exhaustive. Indeed, other relevant considerations may arise in future cases. 

70     The next important discussion of the law relating to restitution orders was R. v. Castro 2010 ONCA 718. In Castro, Weiler J.A. reiterated the importance of the principles summarized in Taylor but also added a number of important considerations to those set out in earlier cases. First, at para 23 she emphasized that a restitution order should not be made as "a mechanical afterthought" saying:


·       Care must be taken not to simply add a restitution order to a sentence of imprisonment which, in itself, is a fit punishment for the crime, as this can amount to excessive punishment and offend the totality principle. 

71     Second, Justice Weiler stressed the importance of the impact on the victim and suggested that a restitution order may be more appropriate where the victim is not a large institution and its loss is not insured. In particular, at para. 32, she mentioned "situations where disabled or elderly persons have lost their ability to earn income and to replace the money taken." Referring to the decision of Martin J.A. in Sherer, Weiler J.A. noted that "Restitution in that case recognized the victims' needs and at the same time underlined the larger social interest in the imposition of a sanction related to the crime."

72     Perhaps most important is Justice Weiler's discussion of the offender's ability to pay. First, at para 33, she squarely addressed a central question in this regard "what has happened to the money that was taken illegally, and how this evidence factors into a determination of the ability to pay." She continued in para 34:


·       Ability to pay must take into consideration what disclosure has been made respecting where the money is or has gone. Depriving the offender of the fruits of his crime is one of the overarching goals of making a restitution order: ... In cases of theft, robbery, fraud, breach of trust or the like, I see no reason why the court should accept an offender's bald assertion that he or she has no ability to make restitution because the money "is gone" when no evidence is proffered in support of this assertion. When the victims can clearly establish that "the replacement value of the property" under s. 738(1)(a) is the amount of money taken, surely it is the offender asserting that he or she has no ability to make restitution who is in the best position to provide transparency concerning what has happened to that money. A bald assertion that the money is gone should be given no weight. Similarly, when the location of the money illegally obtained by the offender is unknown, the sentencing judge is entitled to take that fact into account with respect to ability to pay in making a restitution order: [Emphasis added; citations omitted] 

73     She also emphasized that a consideration of ability to pay should take into account not only the offender's present income but also his future earning ability as well as any assets controlled by him.

74     Finally, at para 35 Justice Weiler emphasized that "When the offence involves a breach of trust, a primary consideration is the effect on the victim; rehabilitation is a secondary consideration." This perspective supports her earlier conclusion at para 28:


·       in cases involving breach of trust, the paramount consideration is the claims of the victims: ... Ability to pay is not the predominant factor. Indeed, where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, a restitution order may be made even where there does not appear to be any likelihood of repayment. [Emphasis added; citations omitted.] 

75     Turning first to the factors discussed in Devgan, the first factor, that a restitution order should be made with restraint and caution, must be considered in every case. It is an admonition that the making of restitution orders should not be done automatically and prior to making such an order the judge should consider any possible negative effects in terms of the overall sentencing objectives set out in the Criminal Code. The importance of the other factors set out in Devgan will depend on the facts of the particular case.

76     In this case, the imposition of a restitution order is supported by the following Devgan factors: (a) Factor 2(i) as it would emphasize the sanction on Mr. Sanmugam; (b) Factor 2(ii) as it would make Mr. Sanmugam responsible for making restitution to the victim; (c) Factor 2(iii), although if Mr. Sanmugam no longer has any assets, he has already profited from his crime and this will not be undone through the making of a restitution order; (d) Factor 3(i) as the purpose of the order is entirely appropriate; and (e) Factor (iii) while only Ms. Zink has commenced civil litigation, this is no reason not to afford this remedy to all of the victims. Factors 4 to 8 do not suggest any reason not to make a restitution order. Factors 9 and 10 simply do not apply.

77     The only Devgan factors that suggest a restitution order should not be made in this case are: (a) Factor 1 as caution might be appropriate given Mr. Sanmugam's inability to pay and the quantum of the fraud; (b) Factor 2(iv) as I do not believe that the making of this order will actually provide a convenient, rapid and inexpensive means of recovery for the victims; and (3) Factor 3(iii) as Mr. Sanmugam appears to be entirely without means.

78     In this case I would start my analysis with the observation that this is a case involving a particularly egregious breach of trust. As such, following the analysis in Castro, I consider Mr. Sanmugam's ability to pay to be a secondary consideration. I would also note that I have been provided with essentially no information about what has happened to the money Mr. Sanmugam took from his victims. I do find that this was a crime motivated by greed and there is no evidence before me that there was anyone else involved in the frauds. Thus, considering the Devgan factors discussed in para [53], supra, I think it is appropriate to make a restitution order. Indeed, given Mr. Sanmugam's insistence that he wants to provide full restitution to his victims, I think it would be incongruous not to make such an order. As no one else is implicated in the frauds, I will make the restitution orders in the full amount of the victim's losses.


79     Mr. Sanmugam, stand up. For all of the foregoing reasons, the appropriate sentence for each of your sentences is a term of imprisonment of five years. As you have been in custody for 26 months I will credit that toward your sentence on a 1 to 1 basis.

80     Therefore, I sentence you as follows:


·       Count #5: 34 months Count #6: 34 months to be served concurrently with the sentence for count #5 


·       Count #7: 34 months to be served concurrently with the sentence for count #5 

81     I will also make restitution orders as follows pursuant to s. 738(1)(a) of the Criminal Code as follows:


·       (a) 

You are hereby ordered to pay Mr. and Mrs. Blizzard the amount of $118,700.00 

·       (b) 

You are hereby ordered to pay Linda Zink the amount of $662,000.00 

·       (c) 

You are hereby ordered to pay Dr. Tuhina Biswas the amount of $328,705.00 



R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.) per Rosenberg J.A. at pp. 36-39; R. v. Edwards (1996), 28 O.R. (3d) 54 (C.A.) per Finlayson J.A. at p. 66; R. v. Sweeney (1992), 71 C.C.C. (3d) 82 (B.C.C.A.) per Wood J.A. at pp. 98-100.


R. v. Taylor, at para. 5.

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