WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(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) 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
DATE: 20220318 DOCKET: C69181
Lauwers, Pardu and Sossin JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Fernando Vigon-Campuzano Appellant
Counsel: Daisy McCabe-Lokos, for the appellant Gregory Furmaniuk, for the respondent
Heard: March 9, 2022, by video conference
On appeal from the conviction entered on January 29, 2020 by Justice David E. Harris of the Superior Court of Justice, sitting without a jury, with reasons reported at 2020 ONSC 587.
REASONS FOR DECISION
[1] Fernando Vigon-Campuzano was convicted of two counts of sexual assault. He appeals against his conviction.
[2] At the oral hearing, we dismissed the appeal and indicated that reasons would follow. These are those reasons.
BACKGROUND FACTS
[3] The appellant was a registered massage therapist who was convicted of sexually assaulting two female clients, Ms. M.-B. in August 2016, and Ms. H. in March 2016.
Ms. M.-B.
[4] On August 5, 2016, Ms. M.-B. went to Be Relax, a massage establishment at Pearson Airport in Toronto, for a massage. The appellant was her masseur.
[5] Before the massage, Ms. M.-B. undressed but left her underwear on. The massage began with her lying on her front. At some point, the appellant asked Ms. M.-B. to take off her underwear, which she did.
[6] The appellant began massaging Ms. M.-B.’s inner thigh, near her vagina. She had never experienced this in other massages and was confused about whether this was appropriate. He massaged her again on her inner thigh, near her vagina. She tapped the appellant with her leg to indicate that she was not comfortable with this and told him not to touch her there. He stopped massaging the area.
[7] Shortly after, the appellant again massaged her inner thigh. Ms. M.-B. did not recall if she said anything. The appellant asked Ms. M.-B. whether she wanted a breast massage. She said no. Nonetheless, he massaged her breasts. Ms. M.-B. froze and did not say anything.
[8] The appellant then put his hand on top of Ms. M.-B.’s vagina and moved his hand in small quick motions. She felt vulnerable and did not say anything. She became physically aroused. The massage ended shortly after, and Ms. M.-B. left the establishment.
[9] Soon after the massage, Ms. M.-B. disclosed the incident to a friend over text message. She testified that, prior to the massage, she had been struggling with feelings of lust as being in conflict with her religious beliefs. She also testified that she felt guilt about not resisting the appellant more clearly.
[10] Eventually, she disclosed the incident to the police.
Ms. H.
[11] On March 17, 2016, Ms. H. went to the Great American Back Rub in Mississauga for a massage. She testified that this was her second massage with the appellant, but she agreed that she may have seen him more than that.
[12] Ms. H. undressed but left her underwear on. At some point during the massage, the appellant asked Ms. H. to take off her underwear, which she did. He later asked her if she wanted a breast massage, and she gave him permission to do one.
[13] Later on in the massage, the appellant pressed into Ms. H.’s vagina area with his hands. She was shocked and froze. He then inserted a finger into her vagina. She flinched and he told her to relax. She asked him to stop. The massage ended not too long afterwards, and Ms. H. left the establishment.
[14] Ms. H. submitted a complaint to the establishment through an online form but did not specify exactly what had occurred. She also told her psychotherapist and her sister. She filed a complaint with the College of Massage Therapists and eventually filed a complaint with the police.
The Appellant
[15] At the time of the events, the appellant worked as a registered massage therapist at different establishments as an independent contractor. He testified that he gave Ms. M.-B. a massage. He testified that she removed her underwear herself and that he massaged her inner thigh, but he denied giving her a breast massage and denied touching her vagina or her vaginal area.
[16] He testified that he gave Ms. H. a massage. He did not ask Ms. H. to take off her underwear. He testified that he massaged her femoral triangle, near the bikini line, but he denied touching Ms. H.’s vagina or engaging in vaginal penetration.
PROCEEDING BELOW
[17] The central question at trial was whether the sexual touching occurred.
[18] Ms. M.-B.’s text messages to a friend after the massage were admitted and relied upon by the Crown and defence for the purpose of narrative. Her text messages were as follows, with the reply omitted:
Yeah today was just kinda off because I was struggling with lust/masturbation. But something happened tonight at the airport that really caught me off guard. I went to go get a back massage and the masseuse ended up fingering me and feeling me up. I told him a few times to stop but he did not. And I’m so confused because I really enjoyed it physically, but I also feel so violated.
I could have been more assertive in saying no and telling him to stop. But I also feel that saying no once should have been enough. I’m so confused.
On the one hand I think to myself, “I really enjoyed that handsome Cuban bringing me to orgasm.” But on the other hand I think to myself “I feel guilty for being promiscuous… Even though I asked him to stop even before it got really intense.”
Actually the more I think about it the more I feel assaulted.
[19] The trial judge noted that Ms. M.-B. was a strong witness. She was precise and candid in cross-examination. The trial judge disagreed with the appellant’s contention that Ms. M.-B. suffered from confusion which indicated a likelihood of misperception on her part and detracted from her credibility and reliability.
[20] The trial judge held that Ms. M.-B.’s text messages did not demonstrate confusion. He found that they demonstrated Ms. M.-B. thinking through what happened to her and reflected mental clarity. Further, she never expressed uncertainty on the central issue, that she experienced sexual touching.
[21] The trial judge also found that the guilt Ms. M.-B. expressed about not resisting the appellant was due to “the internalized societal expectation that women must protest vociferously when sexually touched against their will.” He noted that a trial judge, in evaluating sexual assault claims, must avoid stereotypes and is obliged to “put him or herself into the psychological shoes of the complainant”. He concluded that it was “entirely normal” for a massage client to be uncertain about how to proceed after experiencing an assault during a massage. He also concluded that deriving physical pleasure from the assault was “well within the psychological norm” and any resulting guilt was “normal psychological fallout from a sexual assault.”
[22] The trial judge found that Ms. H. was a good witness. Although she did not remember all the details of the massage, her memory was quite good on the central issues, particularly the vaginal penetration. The trial judge also found that the cross-examination of the appellant did not lead to any major discrepancies which would cast doubt on his evidence.
[23] The trial judge granted the Crown’s similar fact application to use Ms. M.-B.’s evidence to enhance Ms. H.’s credibility, and vice versa.
[24] The trial judge conducted a W.(D.) analysis: R. v. W.(D.), [1991] 1 S.C.R. 742. While there was nothing in the appellant’s evidence, when viewed in isolation, that was implausible or unreliable, when juxtaposed against the Crown’s case he rejected the appellant’s evidence. The strength of the Crown’s case, and the reinforcing evidence of the complainants, undermined the viability of the appellant’s evidence and his denial. The trial judge noted that this reasoning alone could constitute a W.(D.) error, as it would reflect a choice between the Crown and defence evidence. However, he considered whether the appellant’s evidence left a reasonable doubt in the context of the entire evidence, including that of the complainants. Relying on R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69, he concluded that “[t]he Crown’s evidence, enhanced with the similar fact circumstantial evidence, predominates [the appellant’s] evidence and demonstrates to the high beyond a reasonable doubt level of certainty that it is false.” The trial judge found that, on the evidence as a whole, the Crown had proven guilt on both counts beyond a reasonable doubt.
[25] The trial judge concluded that the elements of the offences were made out. The touching occurred as both complainants testified to, it was sexual touching, and there was no consent. The trial judge convicted the appellant on both counts.
ANALYSIS
[26] The appellant raises two grounds of appeal. First, the appellant argues that the trial judge erred in reaching conclusions about Ms. M.B.’s credibility in the absence of expert evidence. Second, the appellant argues that the trial judge failed to provide reasons for rejecting the appellant’s evidence.
[27] Each is addressed in turn.
(1) The trial judge did not err in assessing Ms. M.-B.’s credibility
[28] The appellant argues that the trial judge improperly reached conclusions about the complainant Ms. M.-B.’s psychological response to the alleged sexual assault.
[29] Part of the defence theory of the case was that Ms. M.-B.’s state of guilt and confusion after the incident detracted from her credibility as a witness.
[30] The trial judge rejected this theory. Putting himself in the shoes of the complainant, he found her uncertain reaction to the surprising and perplexing incident to be in keeping with the normal fallout from a sexual assault in these circumstances.
[31] The appellant argues that such conclusions were not open to the trial judge to make on the basis of judicial notice alone, and neither party produced expert evidence at the trial. The appellant relies on R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, where this court overturned a conviction on multiple grounds, including that the trial judge erred in finding that the complainant’s failure to resist a sexual assault could be explained based on a parallel between the complainant’s conduct and “battered wife syndrome”.
[32] We reject this argument. In J.M., the trial judge invoked a specific psychological syndrome, which had been established in R. v. Lavallee, [1990] 1 S.C.R. 852, on the basis of expert evidence (see J.M., at para. 60). In J.M., this court found that the trial judge erred by finding parallels between the complainant and the syndrome without expert evidence. In this case, by contrast, the trial judge’s reference to Ms. M.-B.’s psychological reaction was simply an aspect of the finding that her reaction did not detract from her credibility and reliability, as the appellant suggested. Ultimately, the trial judge found that she was a credible and reliable witness based on multiple factors, whose evidence, when enhanced with the similar fact evidence from Ms. H., he accepted over the evidence of the appellant. This finding that Ms. M.-B.’s reaction did not detract from her credibility and reliability did not require an expert assessment.
[33] This ground of appeal is dismissed.
(2) The trial judge provided sufficient reasons for rejecting the appellant’s evidence
[34] The appellant denied the complainants’ accounts of the incidents. He argues that the trial judge did not identify inconsistencies or problems with his testimony and failed to explain why he rejected the appellant’s evidence.
[35] The appellant objects, in particular, to the following rhetorical questions posed by the trial judge in his reasons, at para. 70:
If the analysis stopped there, this reasoning could be said to constitute a W.(D) error. A choice is being made between the Crown and defence evidence. However, the critical step bridging the factual findings and leading to a proper legal conclusion is the application of the beyond a reasonable doubt standard of proof. Has the Crown proved beyond a reasonable doubt, that the version of each complainant is true despite the contrary evidence of [the appellant]? Or, from the defence viewpoint, does [the appellant]’s evidence leave a reasonable doubt in the context of the entire evidence and the evidence of the complainants? I do not need to positively believe [the appellant] it is sufficient if his evidence leaves a reasonable doubt.
[36] According to the appellant, the trial judge asked the proper questions but failed to provide the required answers. Instead, the appellant argues the trial judge cited this court’s decision in J.J.R.D. in lieu of addressing these crucial questions. In his reasons, the trial judge stated, at paras. 71-73:
Justice Doherty in R. v. J.J.R.D., 215 C.C.C. (3d) 252, [2006] O.J. No. 4749 (C.A.), leave to appeal dismissed [2007] 1 S.C.R. x (note), rejected an argument that a trial judge’s reasons failed to explain his rejection of the accused’s evidence. The only real reason stated by the trial judge for the rejection was the opposing strength of the Crown evidence.
In his reasons, Justice Doherty touched on the interaction between the factual findings and the application of the burden of proof to a credibility trial in which the accused testifies. He said:
53 The trial judge rejected totally the appellant's denial because stacked beside A.D.’s [the complainant’s] evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
This aptly describes the process of reasoning in this case. The Crown’s evidence, enhanced with the similar fact circumstantial inference, predominates [the appellant]’s evidence and demonstrates to the high beyond a reasonable doubt level of certainty that it is false. On all of the evidence, the high degree of certainty required has been met. This fully comports with W.(D.) and the importance of ensuring that accused persons are only found guilty if the Crown’s case against them is proved beyond a reasonable doubt.
[37] We reject the appellant’s submission that the trial judge failed to explain why his evidence was rejected.
[38] J.J.R.D. deals with challenges to the sufficiency of reasons for conviction and an argument on appeal that the trial judge did not explain why he rejected the evidence of an accused. Despite the trial judge’s reference to J.J.R.D. it is apparent from his reasons that he did not apply that authority in such a fashion as to dilute the burden of proof. He rejected the appellant’s evidence because of the formidable evidence “stacked beside” it in this case, especially the reliable accounts of the incidents by credible complainants. The trial judge’s rejection of the appellant’s evidence was based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the complainants’ evidence, enhanced with the similar fact circumstantial inference. His reasons were sufficient.
[39] This ground of appeal is dismissed as well.
DISPOSITION
[40] For these reasons, we dismiss the appeal.
“P. Lauwers J.A.”
“G. Pardu J.A.”
“L. Sossin J.A.”
