COURT FILE NO.: CRIMJ(P)1116/18
DATE: 2020 01 29
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 10, September 11, September 13, and November 14, 2019
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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR JUDGMENT
D.E HARRIS J.
[1] Fernando Vigon-Campuzano, a massage therapist, is charged with sexually assaulting two young female clients: one in March 2016 and then the other in August of 2016. He testified in his defence and denied that he had touched them inappropriately.
[2] The main question on this trial is whether the sexual touching occurred. Within this, the main legal issue is whether the two complainants’ evidence can be used as mutually reinforcing similar fact evidence.
EVIDENCE AND FINDINGS OF FACT
THE EVIDENCE OF MS. M.-B.
[3] 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 at the airport. She had been there about a month before. Mr. Vigon-Campuzano was her masseur this time. She had not met him before.
[4] When he left the room after the initial consultation, she undressed except for her underwear. Mr. Vigon-Campuzano returned and the massage began with Ms. M.-B. face down, covered by a blanket. She told him not to massage her legs and probably told him to concentrate on her back and neck. Ms. M.-B. knew what to expect as she had been massaged before.
[5] Although the sequence was somewhat unclear, he asked her to take off her underwear at some point. Although she thought this was strange, she did so, placing the underwear on the counter.
[6] While Ms. M.-B. was on her front, Mr. Vigon-Campuzano massaged her inner thigh, near her vagina. She had never been massaged in this area before. She was confused whether this was appropriate or not. She tapped him with her leg to indicate that she was not alright with it. Mr. Vigon-Campuzano asked what was wrong. Ms. M.-B. said that she did not want to be touched there. He asked her to keep the lines of communication open and stopped massaging the area.
[7] The massage continued. Soon after, Mr. Vigon-Campuzano slowly began to return to the inner thigh/vaginal area. Ms. M.-B. did not say anything.
[8] Ms. M.-B. was asked to turn over onto her back. Mr. Vigon-Campuzano held the blanket up higher than usual. As she turned over, she opened her eyes briefly and saw him staring and smiling at her. Upon making eye contact, he changed his expression to a straight face. She had not previously mentioned this in her statements to the police or at the preliminary hearing.
[9] 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.
[10] Not long afterwards, Mr. Vigon-Campuzano put his hand on top of Ms. M.-B.’s vagina and moved his hand 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.
[11] Shortly afterwards, Ms. M.-B. disclosed to a friend by text what had happened. The texts were admitted into evidence with the agreement of both counsel, but, as will be discussed in more depth further on, it was agreed that they were only admissible for a limited purpose.
[12] Eventually the police were notified about the incident and the accused was charged.
[13] Ms. M.-B. was a strong witness. She was intelligent and precise. This could easily have been mistaken for rigidity or inflexibility but as her evidence continued, it became clear it was not.
[14] Ms. M.-B. did not reflexively reject suggestions put in cross-examination. She considered them carefully and sometimes would agree and sometimes would not. She was firm but not combative. For example, she readily admitted that she was confused when she was touched inappropriately in sexual areas. However, she denied that it was her predominate emotion at the time. Furthermore, when asked whether she was uncomfortable because Mr. Vigon-Campuzano was a man, she admitted without hesitation that this was true and was part of the reason she was uncomfortable with him from the outset. She testified that she had never had a full body massage with a man before.
[15] These are just a few examples of Ms. M.-B.’s candour in cross-examination. While there was nothing extraordinary about her responses, they do portray her frankness, openness and, ultimately, her credibility.
[16] The defence attacked Ms. M.-B.’s evidence on several grounds. It was argued that Ms. M.-B.’s evidence that the defendant looked at her when she turned over during the massage demonstrated a significant credibility problem. Ms. M.-B. had never mentioned this in her previous accounts of the incident, including at the preliminary hearing. Counsel also argued that her evidence that her eyes were closed most of the time during the act of turning over was implausible as she would have been worried about falling off the narrow massage table.
[17] These matters are of quite minor significance. It would be natural for most people turning over on a massage table to do so mainly based on “feel” rather than based on visual cues. Further, the new evidence of Mr. Vigon-Campuzano looking at her when she turned over may have been accurate or it may not have been. But there was no sense that it was consciously added by Ms. M.-B. for the purpose of further incriminating Mr. Vigon-Campuzano. Ms. M.-B. believed it to be true although her memory in this regard after three years, may have been faulty.
[18] It was further contended by Ms. Myers that Ms. M.-B.’s recollection was poor. Although Ms. M.-B. was unsure about some aspects of the incident, there were no serious memory issues with respect to the two sexual assault allegations: the breast massage and the vaginal stimulation. She expressed that she did not think there was penetration but that was just an example of her precision. And in fact, if only minimal penetration, this could well be an ambiguous act.
[19] It was also argued that because Ms. M.-B. gave a tip after the massage, this belied her testimony that she was sexually assaulted. I do not agree. She testified that she was in shock and just wanted to get out of there. The tip was an automatic action and is of neutral evidentiary weight.
[20] The major contention against Ms. M.-B.’s credibility and reliability was that confusion was the hallmark of her evidence. This was posited on two circumstances. First, Ms. M.-B. admitted that at this point in her life feelings of lust were in conflict with her religious scruples. Second, in text massages written to her friend shortly afterwards, Ms. M.-B. conveyed that while she enjoyed the sexual stimulation, she felt violated. This, according to the defence, showed confusion and a likelihood of misperception on her part.
[21] This is what Ms. M.-B. wrote in the text messages to her friend, omitting the replies:
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 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.
[22] The text messages were admitted and relied upon by the Crown and defence for the sole purpose of elaborating on this issue. In legal terms, it can be classified as a question of narrative. The texts were not usable for any other purpose and, specifically, were not admissible to show consistency or “self-corroboration.” R. v Dinardo, 2008 SCC 24 at para. 37, [2008] 1 SCR 788; R. v. D.C. 2019 ONCA 442 at paras. 19-24; R. v. P. (M.) (2001) 2001 CanLII 24119 (ON CA), 151 C.C.C. (3d) 193, 52 O.R. (3d) 631 (C.A.), at paras. 22-23; R. v. A. (J.) (1996), 1996 CanLII 1201 (ON CA), 112 C.C.C. (3d) 528 (Ont. C.A.), at p. 536; R. v. Lajoie, [1993] O.J. No. 429 (C.A.); R. v. Wait (1994), 1994 CanLII 8757 (ON CA), 69 O.A.C. 63, at p. 65; R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.), at p. 476.
[23] I disagree with the defence arguments that the two circumstances relied upon demonstrate confusion of a kind throwing into question Ms. M.-B.’s credibility or reliability. There was bewilderment at least initially, but the text messages show her thinking through what had happened to her. Far from confusion, Ms. M.-B.’s articulation and understanding of her emotional state demonstrates openness and mental clarity. Ms. M.-B. was able to clearly separate out her feelings and emotions from what had happened to her. She never expressed any uncertainty explicitly or implicitly, that she had been touched in a sexual manner, the vital issue in this case.
[24] First, Ms. M.-B. acknowledged quite frankly in her texts and on the witness stand that during the time leading up to the massage, she was struggling with her sexual urges, which in her mind, may have conflicted with her religious scruples. This degree of self-awareness is impressive and certainly does not detract from her credibility in any way.
[25] Second, Ms. M.-B. enjoyed the sexual stimulation, but at the same time felt violated. There is nothing incompatible between Ms. M.-B.’s pleasure and her feeling of violation. There can be a clinical, mechanical aspect to sexual stimulation whether consensual or not.
[26] Third, Ms. M.-B. felt guilty about enjoying the sexual touching. The defence takes particular aim at an excerpt from Ms. M.-B.’s examination-in-chief. When asked about her use of the word “promiscuous” in the text messages, Ms. M.-B. said:
I was confused because I felt like if I had consented to what happened, I would feel guilty because it would be inappropriate, it would go against my own morals and values about appropriate sexual relations.
[27] The guilt she felt as expressed in this excerpt and in her text messages was at least partially a result of the internalized societal expectation that women must protest vociferously when sexually touched against their will. But of course, the fundamental and logical precondition is that men should not sexually touch women without their consent. It is the man’s duty to ascertain consent beforehand, not the woman’s obligation to protest once she is being sexually assaulted: Section 273.2(b) of the Criminal Code, R.S.C., 1985, c. C-46; R. v. R. (R.), 2001 CanLII 27934 (ON CA), 2001 CarswellOnt 3856, 159 C.C.C. (3d) 11 (Ont.C.A.) at para. 57 (Carswell), affirmed on other grounds 2003 SCC 4. In any event, Ms. M.-B. did make known her lack of consent to the sexual touching.
[28] Furthermore, sexual assault in all its many guises can often bring with it difficult factual questions impacting on proof in a court of law. It is entirely different than a regular assault. Particularly when the alleged assaulter is not a stranger, the emotional entanglements involved can lead to behaviours that may not be easily understood. Generalizations and stereotypes must be scrupulously avoided. A trial judge is obligated to put him or herself into the psychological shoes of the complainant, difficult as that may be.
[29] The situation here brings with it its own psychological complexities. If the allegation is true, this sexual assault was committed under the false pretense of a therapeutic massage. It is important to recognize that at least in the client’s mind, there is inherent ambiguity in the context itself. A massage therapist touches a client with their consent for the purpose of relieving discomfort and pain. In a professional situation, of course, consent is not given for the therapeutic touching to stray into sexual touching or sexual areas. But in the client’s perception, the line between the two could be a difficult one to draw. There may be some uncertainty and ambiguity whether there is some therapeutic benefit from the massage of erogenous zones. In this case, Mr. Vigon-Campuzano may have relied upon this ambiguity to disguise his purpose.
[30] An individual sexually violated during a therapeutic massage is in a perplexing situation. The violation is surprising and shocking. Puzzlement and uncertainty about what to do about it is an entirely normal reaction. The context of therapeutic touching might lend some incredulity in the client’s mind to what has just happened. Any reasonable person in Ms. M.-B.’s situation would have been taken aback and unsure of what to do about it.
[31] That is what happened here. Ms. M.-B. knew that she had been violated, she just could not quite absorb it and act on it right away. It took her some time to come to terms with it.
[32] The other aspect of the guilt, besides in her own mind not protesting sufficiently, derived from self-reproach for deriving pleasure from what was a violation of her autonomy. Again, this is well within the psychological norm. The guilt she felt was a reasonable product of the incongruity involved in feeling pleasure from acts violating her bodily integrity. She was self-critical of pleasure derived from sexual violation. This led her to muse that she might be promiscuous. Of course, in reality, there was nothing remotely promiscuous in her behaviour. What she felt was normal psychological fallout from a sexual assault.
[33] For these reasons, I do not agree that Ms. M.-B. suffered from any degree of confusion which detracted from her credibility or reliability.
THE EVIDENCE OF MS. H.
[34] Ms. H. was 26 years old at the time of trial. Her massage was on March 17, 2016 at the Great American Back Rub in the Square One Shopping Centre in Mississauga. This was her third massage with Mr. Vigon-Campuzano.
[35] Ms. H. initially left her underwear on, but Mr. Vigon-Campuzano asked her to take it off as the massage continued. She took it off. After she flipped over onto her back, 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.
[36] Further on in the massage, Mr. Vigon-Campuzano pressed into Ms. H.’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. The massage ended quite quickly afterwards.
[37] Ms. H. felt violated by the vaginal penetration. She complained to the Great American Back Rub by way of an email form, but did not specify exactly what the problem was. The owner offered her half off the next massage but she refused the offer. She also told her sister and a psychotherapist. Ms. H. eventually notified the police and filed a complaint with the College of Massage Therapists of Ontario.
[38] Ms. H., like Ms. M.-B., was a good witness. She was invariably responsive to the questions she was asked. She did not appear to be an advocate for her own credibility but instead answered the questions posed of her in cross-examination in a neutral, matter-of-fact way.
[39] The defence argued that Ms. H. was unreliable and not credible. I disagree. It is true that she admitted that her memory of all the details of the massage and the surrounding circumstances was not crystal clear. This made sense, as the events were over three years old at the time she testified at trial. Nonetheless, given the time lapse, her memory was quite good on the main issues, particularly the major factual allegation of vaginal penetration.
[40] The defence argued that Ms. H.’s recollection of having seen Mr. Vigon-Campuzano twice, one year apart, was incorrect. That may be so but nothing turns on it. She had admittedly seen him for a massage at least once before and agreed that she may have seen him more than that. The business had poor record keeping practices.
[41] Ms. H., like Ms. M.-B., also gave a tip. It was relatively large in comparison with the tips she had given for other massages she had. There was extensive cross-examination on this issue. Again, I do not accept that giving a tip undermines her credibility to any significant degree. It is somewhat counter-intuitive that a gratuity would be given to a man who had just sexually abused her. But in the rush to get away from him and to leave the premises, it has little importance.
[42] The defence says the conversations Ms. H. had with her sister drove the complaint. Ms. H. did say that her sister prodded her to complain. But her sister did not lead to the allegation being augmented or altered. She simply pressed Ms. H. to take the step of notifying the authorities.
THE EVIDENCE OF MR. VIGON-CAMPUZANO
[43] I do not intend to summarize Mr. Vigon-Campuzano’s evidence in any detail. He unequivocally denied the breast massage and vaginal touching with respect to Ms. M.-B. and denied the vaginal penetration with respect to Ms. H. The breast massage of Ms. H. is not an issue as she agreed that she consented to it on this occasion and on the previous occasion.
[44] I agree in substance with counsel’s summary of his evidence in her closing submissions. The cross-examination of Mr. Vigon-Campuzano by the Crown did not lead to any major discrepancies or problems which would cast doubt on his denials.
THE LEGAL ANALYSIS
THE SIMILAR FACT APPLICATION
[45] The Crown makes a similar fact application to use Ms. M.-B.’s evidence to enhance Ms. H.’s credibility, and vice versa. Several basic principles can be stated at the outset. First and foremost, the evidence of each is presumptively inadmissible with respect to the other: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31-36.
[46] The key driver of probative value depends on the live issues in the particular case: Handy, at paras. 69-75. Here, the main issue is whether the sexual touching occurred. The complainants said it did; Mr. Vigon-Campuzano denied that it did.
[47] The defence has also raised several other issues including accident, honest belief in consent, and reasonable steps to ascertain consent. These last two can be dispensed with in short order as there is no air of reality to either.
[48] With respect to honest belief in consent and reasonable steps to ascertain consent, clients attending for a massage cannot be said to be consenting to the kind of touching that allegedly occurred in this case. The complainants testified that they did not consent to sexual touching. This is a purely subjective question: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 25-28. There is no contrary evidence. I am convinced beyond a reasonable doubt there was no consent. Furthermore, a professional massage therapist cannot possibly have an honest belief that there was implied consent to go beyond a regular massage and engage in sexual touching.
[49] With respect to accident, if this were a jury trial, I would have to carefully consider whether there is an air of reality to it. However, on the face of it, I seriously doubt whether there is. Mr. Vigon-Campuzano at no point in his evidence testified that he may have accidentally touched the complainants in their sexual areas. Nor can the possibility of accident be implied from his evidence.
[50] Nor was there anything in the complainants’ evidence which would support accident. The nature of the alleged acts themselves, committed by a trained registered massage therapist, do not lend themselves to the possibility of accident. The acts here, if they occurred, appear by their nature to be deliberate and calculated.
[51] However, there is no necessity for a definitive judgment on this question. Accident either does not possess an air of reality or is extremely weak. Either way, the probative value of the complainants’ evidence to rebut accident is meagre because the evidence of accident is, at best, itself meagre.
[52] On the issue of whether the sexual touching occurred, the main issue on this trial, it should first be observed that the context is identical in both instances: a young woman being given a massage by Mr. Vigon-Campuzano. Both were touched in the vaginal area albeit in different ways. Neither counsel placed any reliance on these differences. In my view, they are of little relevance. The acts were virtually the same.
[53] It was agreed as fact between counsel that there was no collusion between the complainants. They did not know each other. Similar fact evidence deriving its cogency from the unlikelihood of coincidence, it is highly unlikely that the two independent complainants would both be mistaken about Mr. Vigon-Campuzano touching them in sexual areas: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at paras. 44-46.
[54] As Wigmore said, “the improbability of a like result being repeated by mere chance … carrie[s] probative weight”: Wigmore on Evidence, Vol. 2 (Chadbourn Rev., 1979), at p. 245, approved in Handy, at para. 81.
[55] There are many examples which illustrate the unlikelihood of two unusual events allegedly occurring without the accused’s misconduct, including the classic “baby farming” case: Makin v. A.G. New South Wales, [1894] A.C. 57 (P.C.). One deceased baby buried in the backyard is one thing, several of them is another.
[56] Justice Binnie commented in Handy,
43 …As it was put in one American case: "The man who wins the lottery once is envied; the one who wins it twice is investigated" (United States v. York, 933 F.2d 1343 (7th Cir. 1991), at p. 1350).
128 An alleged pattern of conduct may gain strength in the number of instances that compose it. The cogency of the similar act evidence in the "brides in the bathtub" case undoubtedly gathered strength from the fact the charge related to the third victim who had died under identical circumstances to her two predecessors: R. v. Smith (1915), 84 L.J.K.B. 2153 (C.C.A.).
[57] While one complainant could be lying or mistaken, two complainants lying or mistaken is unlikely. The allegation of two instances of misconduct has a gestalt effect. The whole is greater than the sum of its parts.
[58] The probative value of the evidence of one complainant to help prove the veracity of the other is high. Or, to put it another way, one of the allegations evaluated on its own is much weaker than if fortified by the other.
[59] The prejudicial effect of the similar fact inference is not insubstantial. However, it is manageable. It is true the similar fact and prejudice tests are the same whether it is a jury case or judge alone. But the application of the test may differ. Prejudice is reduced when the trial is by judge alone and when the similar fact application is count-to-count: R. v. Nolan, 2019 ONCA 969 at para. 44; R. v. Tsigirlash, 2019 ONCA 650 at paras. 38-40; R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516 at paras. 56, 68-69.
[60] Moral prejudice and reasoning prejudice are dangers on the evidence in this case. The reasoning prejudice is the risk of confusion and distraction, as well as the prospect that the evidence might be overvalued. Here, it is important to acknowledge that the evidence of the two complainants is separate and independent and must be evaluated with this in mind. Furthermore, although the coincidence between the evidence of the two complainants is undoubtably powerful, it should not be overvalued: see Handy, para. 31.
[61] Moral prejudice is the risk that one complainant’s evidence and the inference leading from it that Mr. Vigon-Campuzano is of bad character will contaminate evaluation of the other complainant’s evidence. This is a real danger when the allegations are similar and both have a tendency to disparage the accused’s character, tempting the trier of fact into the “forbidden reasoning”: Handy, at para. 139.
[62] A judge should strip the evidence of its bad character aspect and look at the logical relationship and probative value of the evidence free of the forbidden reasoning. That is not overly difficult in this instance. The bad character inferences are not the type to cloud the judgment of a jury, let alone of a judge.
[63] In conclusion, the probative value of the similar fact evidence is strong. While the reasoning and moral prejudice is potentially significant, it is eclipsed by the probative value of the evidence. Furthermore, the potential prejudice is minimized by the judicial understanding that the forbidden reasoning must be carefully avoided. The bad character evidence in this case is not difficult to compartmentalize.
[64] The Crown’s application to introduce similar fact evidence therefore succeeds. The complainant-to-complainant similar fact inferences are admissible.
THE STANDARD OF PROOF AS APPLIED TO A CREDIBILITY CONTEST IN WHICH THE ACCUSED TESTIFIES
[65] The essential teaching of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, is not a laborious application of a three-step formula. It is the understanding that a criminal trial in which the accused testifies and denies his guilt, and in which credibility is important, does not devolve into a choice or preference between the Crown version and the defence version: W.(D.), at paras. 9-11; R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8.
[66] A decision based on mere preference violates the most fundamental rule of the game: proof must be beyond a reasonable doubt and there is no obligation on the defence to prove or demonstrate anything. Finding guilt based on a choice between two opposing versions both lowers the beyond a reasonable doubt burden on the Crown to a balance of probabilities and places an onus on the defence to prove innocence.
[67] From a factual point of view, in most situations, either the complainant is telling the truth and the accused is not, or the accused is telling the truth and the complainant is not. That is the case in this trial. The structure of everyday decision making naturally evolves into an either/or binary question. This is the reason the W.(D.) error is such a common and seductive pitfall. A trial judge follows the natural configuration of diametrically opposed decision making. The vital legal overlay of proof beyond a reasonable doubt is forgotten producing rudimentary legal error.
[68] As a purely factual question, it will be apparent that the findings made above demonstrate that the Crown’s case is very strong. Both complainants were good witnesses. The decision that each complainant’s evidence constitutes usable similar fact evidence for the other further increases the power of their evidence towards a conclusion of guilt. The Crown’s case is formidable.
[69] While there is nothing in Mr. Vigon-Campuzano’s evidence which viewed in isolation is implausible or unreliable, when juxtaposed against the Crown’s case and the mutually reinforcing evidence of the complainants, I reject his evidence. The strength of the Crown’s case destroys the viability of the defence evidence and Mr. Vigon-Campuzano’s denial.
[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 Mr. Vigon-Campuzano? Or, from the defence viewpoint, does Mr. Vigon-Campuzano’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 Mr. Vigon-Campuzano; it is sufficient if his evidence leaves a reasonable doubt.
[71] Justice Doherty in R. v. J.J.R.D. (2006) 2006 CanLII 40088 (ON CA), 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.
[72] 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.
[73] This aptly describes the process of reasoning in this case. The Crown’s evidence, enhanced with the similar fact circumstantial inference, predominates Mr. Vigon-Campuzano’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.
CONCLUSION
[74] The elements of the offences are made out. The touching occurred as testified to by the complainants. In both instances, it was undoubtably sexual: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 at p. 302. There was no consent.
[75] For these reasons, the Crown has proved guilt on both counts beyond a reasonable doubt. There will be findings of guilt entered upon both counts of the indictment.
D.E HARRIS J.
Released: January 29, 2020
COURT FILE NO.: CRIMJ(P)1116/18
DATE: 2020 01 29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
FERNANDO VIGON-CAMPUZANO
Defendant
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: January 29, 2020