COURT FILE NO.: CR-18-1116-00
DATE: 2020 09 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
G. Hendry, for the Crown
- and –
FERNANDO VIGON-CAMPUZANO
J. Myers, for the Defendant
HEARD: September 21, 2020
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant Ms. M.-B. may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCE
D.E HARRIS J.
[1] Fernando Vigon-Campuzano, a registered massage therapist, was found guilty of two sexual assaults on young female clients: the first committed in March 2016 and the second in August of the same year: see R. v. Vigon-Campuzano 2020 ONSC 587.
[2] These reasons are for the purposes of explaining the appropriate sentence I intend to impose for these offences and for this offender.
THE MS. M.-B. OFFENCE
[3] A full review of the evidence and the factual findings are in the reasons for judgment. The salient facts are summarized here. Ms. M.-B. was 25 years old at trial. She was flying out of Toronto Pearson Airport on August 5, 2016 bound for Regina for the weekend. She went for a massage at Be Relaxed, an establishment in the airport. She had been there about a month before. This time, Mr. Vigon-Campuzano was her therapist. She had not met him before.
[4] During the treatment, Mr. Vigon-Campuzano asked Ms. M.-B. whether she wanted a breast massage. She said no. Despite this, immediately afterwards, he started massaging her breasts, one with each hand. Ms. M.-B. froze and did not say anything. She explained in her testimony that she had already said no.
[5] Not long afterwards, Mr. Vigon-Campuzano massaged Ms. M.-B.’s vagina using small quick motions, as if to simulate vibrations. She became physically aroused. The massage ended not too long afterwards. Ms. M.-B. left the establishment and caught her flight to Regina. Both the breast massage and the touching of her vagina were sexual assaults.
THE EVIDENCE OF Ms. Mulaba Hubanyama
[6] Ms. Hubanyama was 26 years old at the time of trial and 23 at the time of the offence. Her massage was on March 17, 2016 at the Great American Back Rub at Square One Shopping Centre in Mississauga. This was her third massage with Mr. Vigon-Campuzano.
[7] He asked her if she wanted a breast massage. He had given her one before with her permission. She gave him permission this time too. The breast massage, in light of the consent given, was not part of the criminal allegations. Nonetheless, I am very doubtful whether therapeutic benefit to the patient was the purpose of the breast massage in this case.
[8] Further on in the massage, Mr. Vigon-Campuzano pressed into Ms. Hubanyama’s vaginal area with his hands and inserted two or three fingers into her vagina. She flinched and then froze; she was shocked and confused. He told her to relax. She said that she did not think that she liked that and asked him to stop. Mr. Vigon-Campuzano told her that gay men (she was not sure that he used the word “gay”) often had a physical reaction and afterwards thought that this kind of touching was sexual, but it was not. Soon after the massage, Ms. Hubanyama complained first to her sister and then the police. This charge was laid.
THE POSITION ON SENTENCE
[9] Submissions were made before COVID. The Crown’s position was for a period of incarceration of 2 years less a day plus two years probation. The defence requested one year in jail with one-year probation. Mr. Vigon-Campuzano is a first offender and is now 43 years old. Since the original submissions, due to COVID, the defence asks that I further reduce my sentence by three months. The Crown is opposed.
THE AGGRAVATING FACTORS
[10] The fundamental principle of sentencing set out in Section 718.1 of the Criminal Code is proportionality: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
The Gravity of the Offences and Their Consequences
[11] Considering first the offence, it was a cruel irony that both victims went to see Mr. Vigon-Campuzano for therapeutic relief of bodily symptoms and, in the midst of their massages, were sexually assaulted by him. He was a certified, highly trained health care professional. Instead of attending to and ameliorating his clients needs as he was duty bound and being paid to do, his conduct was for his own sexual gratification. Both Ms. M.-B. and Ms. Hubanyama were prone on his massage table, naked and could not defend themselves against the improper, sexual touching. They were at his mercy.
[12] Mr. Vigon-Campuzano took cover under the guise of a regular massage and in its inherent ambiguities. The complainants asked themselves whether this was a proper part of the massage or whether it was a sexual assault. But both Ms. M.-B. and Ms. Hubanyama were intelligent, perceptive and strong women. It took some processing as it would take anyone to sort it out. It was a shocking departure from the norm. But they were clear in their own minds very quickly; this was not a legitimate massage technique, it was a sexual assault.
[13] Mr. Vigon-Campuzano had been disciplined by the College of Massage Therapists of Ontario in 2014. He was required to attend courses as a result. He admitted that he had asked Ms. M.-B. during her massage whether she was from the college.
[14] Section 718.2(a)(iii) of the Criminal Code makes it an aggravating factor for an offender to have “abused a position of trust or authority in relation to the victim.” Both women trusted Mr. Vigon-Campuzano with their bodies and their selves at their most vulnerable. The massage which was their oasis from the hustle and bustle of their lives, became entirely the opposite. Mr. Vigon-Campuzano took advantage of that trust and his position as a massage therapist, to sexually assault them.
[15] Our community is built on relationships of trust. Mr. Vigon-Campuzano had worked hard, beginning in his native Cuba, to train to become a massage therapist. He was certified by the College of Massage Therapists in Ontario. He was qualified not only to be a competent therapist but to be an ethical one. He used this privileged position to exploit Ms. M.-B. and Ms. Hubanyama to fulfill his own lust. That is a significant aggravating factor on this sentencing.
[16] I should stop to note here that both victims referred to the stress and pain of testifying at trial. There can be no doubt that giving evidence in court about a sexual assault is traumatic and painful. Dredging up the emotions from the time of the assault through the different stages of managing the pain and anger can be detrimental to a victim. Being questioned and challenged about the truth of the allegations is humiliating and belittling. That was the case for both victims in this case. I hasten to add that this is inevitably the case, even if defence counsel, as occurred here, at all times conducted the trial with dignity and respect.
[17] While I acknowledge that the complainants’ feelings are genuine and had a major impact on their well-being, caution is necessary in a criminal sentencing. Section 718.2(a) (iii.1) of the Criminal Code makes it an aggravating factor “that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.” The trauma of testifying at trial is not about the “offence” itself. The language of the victim impact statement enabling provision, Section 722(1), similarly restricts the use of the statement to the harm, damage and impact of the “offence.”
[18] More broadly, it is a long-standing principle that the defence conduct of the trial cannot constitute an aggravating factor on sentence: see R. v. Kozy, (1990), 1990 CanLII 2625 (ON CA), 74 O.R. (2d) 545 (Ont. C.A.) at p. 550; R. v. F. (J.), 2011 ONCA 220, 105 O.R. (3d) 161 at para. 84. Otherwise, the accused is being penalized for insisting on his constitutional right to the presumption of innocence and his choice to have a trial. I cannot increase the offender’s sentence based on the unfortunate necessity of the complainants testifying at trial. I can and do acknowledge the courage and the fortitude both victims showed throughout this proceeding.
[19] The offences seriously hurt both complainants. Both gave victim impact statements in court to elaborate on the injuries inflicted by the sexual assaults.
[20] Ms. M.-B. said that the sexual assault had a “devastating impact upon my psychological and emotional health. It has taken years to process and heal from the crime…” She is haunted by memories of it. When she flies out of Pearson she is reminded of the assault; whenever she goes for massage therapy, she has flashbacks to the assault. She cannot truly relax. Mr. Vigon-Campuzano has robbed her of that.
[21] Ms. M.-B. was a full-time education student at the time she was assaulted. She has suffered stress both from the trial process and from the psychological toll of the sexual abuse. At one point she was working in her chosen profession as a teacher but the stress of the job, compounded by the stress of the upcoming trial and the abuse itself, led her to leave her position. She felt terrible abandoning her students in the middle of the year but felt she had no choice.
[22] In the past few years, she has been working online towards a master’s degree. The stress and anxiety of testifying at the preliminary inquiry and at the trial have had a substantial impact and have delayed her studies significantly. In addition, as a result of the stress, she has developed reflux and is on medication for it.
[23] Ms. M.-B. has been in psychotherapy for four years since the assault to deal with its trauma. It has taken her years to learn that the assault was not her fault. Like most survivors of sexual assault, she felt guilty. She also feels, and I am sure she is right, that Mr. Vigon-Campuzano took from her an enormous amount of time.
[24] Ms. Hubanyama, like Ms. M.-B., was a student at the time of the sexual assault against her. She was in journalism school and just prior to the sexual assault, had been chosen class valedictorian. She treated herself to a massage.
[25] Ms. Hubanyama suffers from a serious, chronic illness. Mr. Vigon-Campuzano knew this both from her file at the massage clinic and from the fact that at the time of the sexual assault, she had a stomach tube that was used to pass nutrients into her body. At the time, she weighed 96 pounds and was frail. Thankfully, her health has greatly improved since that time. At the trial and the sentencing hearing she looked and confirmed that she was healthy.
[26] Ms. Hubanyama stresses the impact of the breach of trust on her. As she paid for the massage, she felt Mr. Vigon-Campuzano towering over her, intimidating her. She showered 6 times that day feeling that if she washed she could get him out of her body and mind. In the weeks afterwards, she would often wake up in the middle of the night with sweats and would have to shower. She could not get his face and what he had done out of her mind.
[27] After graduating from journalism college in June of that year, she could not work. She stopped taking the medications for her chronic condition, leading to a stay in hospital from July to August. The hospital psychiatrist determined that she was severely depressed and prescribed medication. The year 2016 was a blur.
[28] In 2017, Peel Police notified her that more women had come forward. Her heart dropped and it was the first time that she had a major cry over the incident. She knew that what she was feeling, the others were feeling as well.
[29] Ms. Hubanyama at the time of the original sentencing hearing was on Prozac, going to therapy once a week, carried pepper spray and taking self-defence classes. This was her first sexual experience—non-consensual touching in the course of a massage by a therapist. That is exceedingly unfortunate and is a substantial aggravating feature. She is still hurting and in pain over what Mr. Vigon-Campuzano did to her four and a half years ago. She is working in a good job at the time of the original hearing. She is proud, as she should be and as too should Ms. M.-B., for testifying “with honesty and strength” against Mr. Vigon-Campuzano.
[30] At the end of her victim impact statement, Ms. Hubanyama addressed Mr. Vigon-Campuzano directly from the podium next to where he was sitting at counsel table. This was a powerful moment in the courtroom. She told him that she had nightmares of seeing his face, she has had to hear his name repeatedly since 2016. She imagined that he felt powerful that he had this effect on her. She wanted him never to forget her name. She asked, “Do you know my name?” Then she repeated her name several times. She told him to remember her name and to remember her face. She said that she told everyone what he did to her and that she refused to let him get away with violating her. She asked him to imagine how powerful she felt having this effect on him.
[31] In summary, both women have been profoundly hurt by Mr. Vigon-Campuzano’s sexual assault upon them. The impact was increased by the comfortable, healing setting in which the sexual violation took place, the ambiguity inherent in the context and the shocking breach of trust involved. A covert assault, disguised as performed for a healthful purpose, is particularly insidious.
[32] There are two things which bear further comment. Perhaps the most salient aggravating feature in the evidentiary totality of this trial was the exploitation of a sick woman by Mr. Vigon-Campuzano. As summarized, Ms. Hubanyama suffers from a chronic illness which Mr. Vigno-Campuzano was well aware of. Ms. Hubanyama said in her statement that Mr. Vigon-Campuzano targeted her because of her visible infirmity. I believe that is correct. He may well have had an instinct sensing this vulnerability. Furthermore, the act of violating a woman he knew was seriously ill approaches the depths of humanity. She had more than enough to contend with without being the object of sexual predations by a person who was hired to assist in restoring her precarious health. Clearly, Mr. Vigon-Campuzano’s compulsion to sexually assault was virtually undeterrable. This is a very troubling aspect of this offence.
[33] Finally, Ms. Hubanyama’s insistence at the end of her victim impact statement that Mr. Vigon-Campuzano remember her face and remember her name is important. It was indicative of the injurious effects of this and all sexual assaults. A sexual assault serves the offender’s sexual gratification and need for domination over those who are his victims. In pursuit of those objects, the offender is completely uninterested in the victim as a human being. Her thoughts and feelings are an inconvenience and a nuisance to be avoided. The assault tends to deny her very existence. The consequence for the victim is that the sexual assault on her body forms a lasting attack against her personhood.
[34] It is this depersonalization and repudiation of their identity as women which was one of the major reasons Ms. Hubanyama and Ms. M.-B. were so seriously harmed by these sexual assaults. Ms. Hubanyama, in her victim impact statement, when proclaiming her name and emphasizing that she was powerful, was reclaiming her identity which threatened to be obliterated by what had been done to her and by the label of “victim.” It was a sign of her refusal to suffer objectification and relegation to a mere “victim” and non-person by Mr. Vigon-Campuzano. This common consequence of sexual assault has been documented in the literature and is consistent with my judicial experience. For a particularly incisive and poignant account illustrating the profoundly damaging effects of sexual assault on a victim’s identity and sense of self-worth see “Know My Name: A Memoir” by Chanel Miller, Viking, 2019.
[35] Ms. Hubanyama, has requested through the Crown that the publication ban previously made under Section 486.4 of the Criminal Code to conceal her identity be lifted. She no longer wishes to be anonymous for the reasons I have just summarized above. I agree with Justice Mew that a Section 486.4 ban is exclusively for the benefit of a complainant. Now that she no longer desires the ban, it ought no longer be imposed: R. v. Ibbitson, 2020 ONSC 1336 [2020] O.J. No. 946 (Ont. S.C). That is why Ms. Hubanyama is named in these reasons.
THE MITIGATING FACTORS
[36] It is a mitigating factor that these were Mr. Vigon-Campuzano’s first criminal offences. He of course lost his job as a result of the allegations but I do not see this as mitigating in any way. It could only be expected. The loss of employment is not a collateral consequence of a criminal conviction when the offence was committed in the course of the employment and demonstrates that the offender was blatantly unsuitable for the job. It is a direct consequence.
[37] Mr. Vigon-Campuzano has solid family support from his wife, and parents. They were present throughout the proceedings. He has been married since 2013. He is father to a now 7-year-old daughter. His wife is pregnant and the baby is due in December 2020. He worked at a trucking company before being laid off during COVID. Apparently he is eager to receive counselling for sexual issues. I believe this is a genuine request and is indicative of at least some degree of rehabilitative potential.
CONCLUSION
[38] This was a serious offence with serious injury to the two complainants. They are, as I have said, both very impressive, very strong women. It is hoped that with the sentencing of Mr. Vigon-Campuzano, they will find some measure of closure.
[39] I am obliged to say that simply because I agree with the Crown with respect to the seriousness of the offences does not mean that I agree with the two year less a day sentence recommendation. I believe this is too high and outside the range for the offences and the offender.
[40] It is incumbent on a trial judge to ask in every case what the real purpose and efficacy of a jail sentence is. Sometimes it will be obvious but the question should nonetheless be asked. The Supreme Court has recognized that sentences are often too high, incarceration is overused. It was 21 years ago that the Supreme Court while referring to the command for restraint in the use of jail on sentence mandated by Section 718.2(e) of the Criminal Code said,
.. although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament.
[41] Also see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at paras. 1, 16.
[42] I fully understand and agree that denunciation and deterrence are the primary sentencing principles in the context of this case. Denunciation requires that a sentence affirm our fundamental values. The community values in this case are: Protecting the sanctity of privacy and physical autonomy, nurturing safety in a therapeutic setting, and the building and reinforcing of trust relationships. Most importantly, it is critical that any sentence imposed not depreciate either the seriousness of the offence or the damaging effects on the two complainants. It is vitally important that their voices should be acknowledged and affirmed.
[43] Deterrence is important in this type of case because others in the position of Mr. Vigon-Campuzano must understand that if they violate the bodily integrity of the patients they are entrusted to care for, they will be dealt with sternly by the courts. Transgressions like Mr. Vigon-Campuzano’s percolate in the offender’s mind for some time before being acted on. Deterrence can be effective in this situation and must be integral in the formulation of a proportionate sentence.
[44] In sentencing, counsel often come to the court with a “high-low” position. The Crown goes high, the defence goes low. The expectation is that the extreme of each position will push the judge towards one end or the other. The sentence will come to equilibrium somewhere in the middle. However, this was not Ms. Myers approach in this instance. For Mr. Vigon-Campuzano, she did not opt for an unrealistically low position but rather took a responsible and credible position of 12 months incarceration in the original submissions and now 9 months in the COVID era. Not that I think that is the correct position, I think it is too low. But it was within the generally applicable range.
[45] The fact remains, the case law does not support the Crown’s position for a maximum reformatory sentence of two years less a day. For example, in R. v. Norris, 2016 ONSC 2482, [2016] No. 2693, a 63-year-old acupuncturist was sentenced after a contested trial to 14 months for sexually assaulting five patients. Specific deterrence was a more significant issue in that case as the offender had an immovable conceit that he had magical healing powers. He saw nothing wrong in what he had done. That case is on a similar level of seriousness, all told, as this one.
[46] Justice McKinnon reviewed quite a number of other cases in his Norris decision at paragraphs 50 to 60. His review is helpful to orient the search for a fair sentence in this case. The cases reviewed imposed sentences between 9 months to 18 months including for cases with multiple victims as this one.
[47] I do not view R. v. Bedard, 2001 CanLII 8536 (ON CA), [2001] O.J. No. 1894 (C.A.), a case relied on by the Crown here, as particularly helpful. There, Justice Moldaver (as he then was) raised a conditional sentence to 12 months jail but was of the view that if the Crown position had been higher, the offender could have received a penitentiary sentence of at least two years. But the chiropractor in that case had victimized a total of 13 women, many multiple times, including two teenagers. The offences, because of the sheer number of victims, were significantly more egregious than in this case.
[48] The only case referred to by the Crown that imposes a sentence as high as requested here is R. v. Poon [2012] S.J. No. 482 (C.A.), a case also mentioned by Justice McKinnon in Norris. There, the court affirmed a sentence of two years less a day for a doctor who sexually assaulted six patients over two months. The Poon case is clearly more serious than the case at bar. The assaults were as invasive as those in this case but because the offender was a physician, the breach of trust was even more serious. And there were six offences, not two.
[49] On the lower end, in R. v. Khan 2016 ONCJ 282, Justice Schreck found a non-registered massage therapist guilty of touching the victim’s breasts and vaginal area. A six-month sentence was imposed. Justice Pringle in R. v. Zolman [2020] O.J. No. 16 sentenced a 75-year-old acupuncturist to six months in jail for sexual assaults on both an 18 year old and her mother. The case at hand is more serious than both of these cases for several reasons, not the least of which is that Mr. Vigon-Campuzano was professionally licenced to practise his profession. His obligations and responsibilities were more onerous. As well, he had been warned by the College previously for impropriety.
[50] Apart from the lack of support in the case law, little would be accomplished, in my view, by a sentence in the range requested by the Crown. It is unnecessary to vindicate denunciation or deterrence. In my judgment, Mr. Vigon-Compuzano has a proclivity towards sexual assault but he will not likely have another chance to act on it and exploit women in the manner he did in this case. All in all, I do not believe, in the aftermath of this proceeding, that he will sexually assault other women. Counselling will be ordered to further ensure that this does not happen.
[51] In my view, a sentence in the range recommended by defence counsel will have the same general degree of individual and general deterrence as would a sentence approaching the length of that recommended by the Crown: R. v. Hess; R. v. Nguyen 1990 CanLII 89 (SCC), [1990] S.C.J. No. 91, [1990] 2 S.C.R. 906 at paras. 24-27 per Wilson J. A potential offender will not be more likely to commit the offence if one or the other sentence is imposed. Nor would a higher jail sentence bolster the complainants’ in their quest for justice for the offences against them. They have been heard and the injury to them is clear. Any sentence imposed must demonstrate this and be equivalent to the gravity of the offences and the offender’s significant moral blameworthiness. That can be accomplished without the type of sentence suggested by the Crown.
[52] Lastly, the original sentencing recommendations of counsel were made before the blight of the global COVID pandemic. The fact is, there is now extra hardship in serving a jail sentence both physically and psychologically. This reality, at the outset of what may well be the “second wave,” must be taken into account. That is only logical. After all, if additional hardship is properly used in determining pre-trial custody credit under R. v. Duncan 2016 ONCA 754, it must also be factored into the crafting of a prospective sentence. Hardship over and above the general burden of serving a jail sentence has always been a proper consideration: see R. v. Kandhai, 2020 ONSC 1611 at para. 7; R. v. Hearns, 2020 ONSC 2365 at paras. 20, 23-24. It will be apparent, therefore, that I disagree with the Crown’s position that COVID is irrelevant.
[53] I believe a proportionate sentence can be formulated responding to both the gravity of the offences and the moral responsibility of Mr. Vigon-Campuzano while exercising some restraint in the use of incarceration as a sentencing tool.
[54] In summary, there were two intrusive sexual assaults committed, breaching the trust reposed by the complainants in Mr. Vigon-Campuzano as a massage therapist. The psychological injury to the complainants was deep and, unfortunately, long-lasting. Mr. Vigon-Campuzano is a first offender. He obviously has a sexual problem but there is good, realistic rehabilitative potential.
[55] There being two separate offences, the sentences will be consecutive the one to the other. Although it could be argued that the harm to Ms. Hubanyama is greater than to Ms. M.B., that would be a presumptuous and a questionable conclusion. In the result, giving due attention to totality and to the fact that each sentence on its own would be longer than the two together, I sentence Mr. Vigon-Campuzano to six and a half months incarceration on each count consecutive, for a total sentence of 13 months.
[56] That will be followed by probation for 18 months on the statutory conditions and with the added condition he take sexual offence counselling as prescribed by the probation officer. He will report within 3 business days of release to probation. There will be no contact of any kind direct or indirect permitted with the complainants nor will Mr. Vigon-Campuzano be permitted within 200 metres of places he is aware they live, work or are present at.
[57] There will be a SOIRA order for life, a DNA databank order and a Section 109 weapons prohibition for 10 years.
D.E HARRIS J.
Released: September 22, 2020
COURT FILE NO.: CR-18-1116-00
DATE: 2020 09 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
FERNANDO VIGON-CAMPUZANO
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: September 22, 2020