A former masseur in Victoria who was found guilty of sexually assaulting several women during therapeutic massages has convinced the Court of Appeal for British Columbia to order funding for his “complex” appeal against his conviction and two-year jail sentence, which is long enough to force his deportation to India at the end.
Ajesh Jacob, who was in his mid-30s at the time of the crimes, is currently in jail and does not have a lawyer.
, B.C.’s top court said there is no “obvious error” in the trial judge’s sentencing decision. But Jacob’s appeal is not obviously doomed, and he has shown he cannot afford a lawyer, so it is “in the interests of justice to appoint counsel on his behalf.”
It will be a complicated file, involving alleged Charter violations of unreasonable delay, judicial errors about appointing court interpreters, and the controversial issue of whether the women complainants were influenced in their testimony by reading each other’s stories on Instagram before the trial.
Jacob was initially charged with 11 counts of sexual assault between May 2019 and March 2021. Two were stayed by the Crown before a trial, in which a judge found him not guilty on four of them, and guilty of five.
Jacob, who immigrated to Canada in 2018, will be deported to India after serving his sentence if it is ultimately for six months or more. His trial judge decided this immigration consequence was not a mitigating factor that would justify a lesser jail term than the two years she imposed. Even his trial lawyer accepted that a sentence of less than six months would not be within the “appropriate range” for five sexual assault convictions, B.C. Supreme Court Justice Catherine Murray wrote.
The major issue at trial was the credibility and reliability of the complainants, specifically “tainting or unconscious contamination of evidence.” Jacob’s defence lawyer argued some of the women “recreated” their stories after hearing details of other complaints.
All of the complainants but one came forward, sometimes many months after the fact, after seeing a news article or posts on an Instagram account called Survivor Stories, whose administrator urged some to contact police or connected them to a lawyer pursuing a separate civil case against Jacob and the massage business.
At trial last year, Judge Murray found one complainant was a “textbook example of tainting or unconscious contamination … (she) took information she learned from others and made it her own — consciously or unconsciously.”
Another issue was identity, and whether Jacob was in fact the man known to the complainants in the massage clinic and by his name tag as “Sam,” and whether these complaints might actually be about a different employee of Korean ancestry.
Another issue was the long delay, some of which was due to Jacob’s request for an interpreter in the rare language of Malayalam and arguments over the competence of the interpreters chosen.
The issue of whether Jacob actually needed an interpreter was not argued before the trial judge, and his challenge of the interpreters’ competence failed in a pretrial ruling. Jacob grew up in southern Kerala province of India, where he was taught in English. He has a master’s degree in English language and literature, and completed a two year diploma in human resource management in Victoria, in English.
At trial, Judge Murray found much of Jacob’s evidence was contradictory, senseless and inconsistent. She found he touched these women sexually without their consent and intentionally manipulated one woman’s hand to briefly touch his penis.
She accepted his relative youth, lack of a criminal record, obedience to bail conditions, and strong support from upstanding community members as mitigating factors in his sentence.
There were also plenty of aggravating factors, not just the large number of offences. He was in a position of trust, providing a therapeutic service to women in a vulnerable situation. He stood at reception as they paid, causing fear and preventing any disclosure to the other staff. His assaults were planned and deliberate, not just opportunistic.
And Jacob’s “moral culpability is high,” she decided. There were no factors of “diminished blameworthiness” or “compelling mitigation” that would justify letting him serve his sentence in the community rather than in jail. The jail sentence of two years less a day, followed by three years probation, places him “under supervision for the maximum allowable time,” the judge ruled.
It means he will serve the time in a provincial jail, rather than a federal prison. Federal prisons take offenders sentenced to more than two years. It will also mean that he will be deported to India at the end of his sentence.
“In my view, this sentence sends a strong message to Mr. Jacob and other like-minded individuals that sexual assault will not be condoned,” the trial judge wrote.
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