Court File and Parties

COURT FILE NO.: CR 207-21 DATE: 20230425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ABE BENICO VERGARA Defendant

COUNSEL: J. Spangenberg, for the Crown R. Braiden, for the Defendant

HEARD: March 3, 2023

BEFORE: McArthur, M.D. j. (Delivered Orally)

Restriction on Publication

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainants may not be published, broadcasted or transmitted in any manner.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

Introduction

[1] On December 6, 2022, Mr. Vergara was found guilty after a trial of 6 counts of sexual assault involving 6 individual adult complainants who were all employees of Mr. Vergara at various times. Each of the complainants testified at trial. Mr. Vergara did not testify, nor is and was he required to do so. The jury returned verdicts of guilty on each of the counts.

[2] A publication ban is in effect as to the identity of the complainants.

The Offences

[3] Mr. Vergara owned and operated an adult massage parlour in London for twenty-five years. The business closed since its municipal licence was revoked as a result of these convictions.

[4] The offences occurred at isolated times over approximately an eight-year period at the business premises and during the scheduled work shift of each complainant. With the exception the activity of LS, the offences are generally in the earlier part of this period. In each case, the complainant performed an adult massage upon Mr. Vergara on one of the tables in one of the massage rooms. In each case during the consensual sexual activity, non-consensual sexual activity that formed the basis of the offences are summarized as follows:

• Once with ML the consensual sexual activity ended with non-consensual vaginal intercourse of her from behind her with a condom by Mr. Vergara to the point of ejaculation;
• Once with JP the consensual sexual activity ended with non-consensual anal penetration of her by Mr. Vergara from behind her with ejaculation by him;
• Once with AF, while over and facing her and performing a body slide, Mr. Vergara inserted the head of his penis into her vagina without her consent;
• Once with LS, while over and facing her and performing a body slide, Mr. Vergara had non-consensual vaginal intercourse with her to ejaculation without a condom;
• With LM, once while over and facing her and performing a body slide, Mr. Vergara had non-consensual vaginal intercourse and, on a second occasion, Mr. Vergara attempted vaginal intercourse.
• Once with AA, the consensual sexual activity ended with non-consensual vaginal intercourse of her by Mr. Vergara from behind her with a condom.

Mr. Vergara

[5] Mr. Vergara is 54 years of age. A presentence report was prepared and filed as Exhibit 1. This report is most complete, positive and favourable for Mr. Vergara with the exception of reference taking no responsibility for his actions on the basis of other factors.

[6] Mr. Vergara’s family background and history is most favourable. He was born in the Philippines and is the youngest of nine children. Mr. Vergara’s father had been a police officer for ten years and changed careers to spend more time with his family. Mr. Vergara had a positive childhood, free of trauma and abuse. When age 21, along with his parents and some of his siblings, they relocated to Canada for schooling and better job opportunities through the sponsorship of his sister.

[7] Mr. Vergara settled in, found employment and housing. He and his family became part of the larger Filipino community in the area. He has the continued support and respect of his family members who are aware of the overall circumstances.

[8] In 1997, Mr. Vergara opened the adult massage business. Mr. Vergara eventually had managers at the business who oversaw the business operations. Mr. Vergara was often away from the business location for weeks at a time and was not at the business workplace for entire shifts. Other than one or two of complainants, Mr. Vergara did not interview the other complainants and the other female managers oversaw usual business operations. Mr. Vergara did not recruit or groom any of the complainants who became contract employees at various periods of time.

[9] Mr. Vergara has no prior criminal history. He has experienced no difficulties with drugs or alcohol and there are no other problematic behaviors other than anxiety and depression experienced from the charges and convictions and the stigma within the Philippine community in particular.

[10] Mr. Vergara has been in a common law relationship since 2010 from which there are three children, now 7, 10 and 12. Given the nature of the business and other competitors, Mr. Vergara resided with his brother for the safety of his family. Although separated with reconciliation prospects, his former common law spouse describes him as a loving, active and involved father who is respectful and kind-hearted and generally had a previously happy disposition that has become quieter and sad.

Positions of the Parties

[11] Both parties agree that a jail sentence is required. They disagree on the length of sentence.

[12] The defence submits 3 years concurrent on each count. The Provincial Crown seeks a sentence of 12 years in total based on some multiplication of a usual base sentence of 3 years and considering totality.

Aggravating Factors

[13] The aggravating factors in this case include non-consensual intercourse on a number of younger adult individuals. The conduct occurred in the course of the employment relationship and where the complainants worked. This court is most mindful of the Supreme Court of Canada decision in R. v. R.A.R. 2000 SCC 8 where the court found the Court of Appeal erred in failing to take sufficient account of the key factor which in that case was the offender’s abuse of position of authority by assaulting the complainant in the workplace.

[14] The act of forced penetration has always been considered an aggravating feature by the courts. All sexual assaults are serious acts of violence and reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. See R. v. J.K.A. 2022 ONCA 487 at para 74.

[15] Some of the complainants were younger adults and some were vulnerable due to their own personal circumstances and inexperience. None of the complainants were threatened by Mr. Vergara in any manner nor were there any derogatory comments made at the time of the offences or any time after. Some complainants continued eventually elsewhere in the same nature of work, others went on to other occupations and education.

[16] As to the effects of the offences, two complainants completed and read their Victim Impact Statement that are filed as Exhibits 1 and 2.

[17] LM experienced emotional and mental trauma and held it in for years. She has since been able to talk about it; she had hated herself since she did not stop this from happening. She has come to realize that she did nothing wrong and was taken advantage of. She is in the healing process and indicates she will get through this with counselling and supports.

[18] AF, one of the younger of the adult complainants, experienced a lack of focus from the experience, became an emotional wreck and tried drugs to cope, lost her education that she could not continue and became homeless for a time with her daughter.

[19] The court also observed these and other complainants at the trial were overall generally confident, straightforward and, at times, emotional in their testimony of the events. In view of this and the other comments in the presentence report, this court certainly acknowledges the effects include shame, hurt, fear and bewilderment and at times feeling overwhelmed, whether they provided formal impact statements or not.

[20] As to the earlier reference to not taking responsibility, this goes to the issue of rehabilitation. In this case, given the gravamen of the offences, the lack of criminal antecedents, the emotional challenge and response of Mr. Vergara to the conviction, his family and children and conduct within the community otherwise, Mr. Vergara, has strong potential for rehabilitation. As for specific deterrence, this is a minor factor and, nevertheless, these proceedings and outcome have substantially affected this.

Mitigating Factors

[21] Mr. Vergara does not have any prior criminal record or antecedents.

[22] He has been respectful in his conduct throughout the proceedings and he and many others co-operated in the completion of the pre-sentence report. He has a long-standing and positive common law relationship with prospects of resuming this relationship. He is also a father to his three children and his family are supportive and regard him positively.

[23] Mr. Vergara has otherwise been employed throughout his life and has had a good reputation amongst his wider family members and immediate community. The fact that Mr. Vergara has taken on medical assistance and medications to deal with his current circumstance speaks of an underlying sensitivity by him and concerns overall. His common law spouse recognizes that Mr. Vergara would benefit from personal counselling.

Principles of Sentencing and Cases

[24] The principles of sentencing are set out in Sections 718, 718.1 and 718.2 of the Criminal Code. They need not be repeated here and are well-known. The public and the citizenry must be protected.

[25] The law is clear that in cases of repeated and serious sexual activity involving intercourse, the predominant sentencing principles are denunciation and deterrence. I am also aware to consider the prospects for rehabilitation, the principles of totality and give regard to other cases and sentences imposed by the courts.

[26] As both the Crown and defence recognized and indicated in submissions, there are no cases that are sufficiently close to the fact situation here. In many of the other cases counsel have mentioned, there are significant differences that include a higher duty of care, a substantially greater breach of trust, many of the complainants were children, amongst other distinguishing features.

[27] In the leading case of R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada has directed the courts to “take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality. Accurately understanding both factors is key to understanding both factors is key to imposing a proportional sentence.” (See para 75). This also extends to sexual offences at large. See R. v. Brown, 2020 ONCA 657 at para 59.

[28] Section s.718.3(4) of the Criminal Code directs that for sentences for more than one offence, the sentences be served consecutively when the offences do not arise out of the same event or series of events. The decision in R. v. Ahmed 2017 ONCA 76 ensures that the principle of serving consecutive sentences does not exceed the overall culpability of the offender. As has been observed, this is the application of the general principle of proportionality. Related to this is the principle of totality. The Ontario Court of Appeal in R. v. Jewell, [1995] O.J. No. 2213, 100 C.C.C. (3d) 270 has directed that the proper approach when sentencing an offender for multiple, related, offences is to determine the gravamen of the conduct giving rise to the offences, and then to decide what sentence, in total, would be appropriate. Having done that, the court should proceed to allot the offences sentences which will add up to the predetermined total. See also R. v. Stuckless, 2019 ONCA 504.

Summary and Conclusions

[29] I have considered all of the cases and received the helpful oral and written submissions provided to me by both counsels. In this somewhat unusual situation, the most serious part of the complaints is that Mr. Vergara, as expressed by one of the complainants, took advantage of the consensual activity to engaged in additional, brief non-consensual sexual activity. There was some complainant evidence that, even after the intercourse, the consensual massage activity continued. Nevertheless, this does not make the misconduct less serious, let alone excusable in any manner nor warrant a reduction in sentence.

[30] In these circumstances, after considering the aggravating factors and mitigating factors and in view of the gravamen of the offences that occurred in the same location largely in the earlier part of the time-period mentioned, a penitentiary term is warranted in totality for five years and 8 months or 68 months total.

[31] To maintain principles of denunciation and general deterrence and the principle of totality and proportionality, and after considering the aggravating and mitigating factors and the collateral consequences as referred to above, the sentence of the court for Mr. Vergara shall be as follows:

a. On counts 1, 5 and 6, the sentence shall be 34 months in jail concurrent to each other; and b. On counts 2, 3 and 4, the sentence shall be 34 months in jail concurrent to each other and consecutive to the counts referred to above in a.

[32] This sentence reflects a substantial sentence for you Mr. Vergara. The court has a difficult obligation to weigh these factors in view of other cases and principles as mentioned. The court does not lose sight of the fact that you are a first-time offender and, given your background, a prison sentence may be harsher upon you than many others. Had there been an absence of some of mitigating factors here and more severe aggravating features, the sentence would have significantly increased.

[33] There will be an order pursuant to Section 743.21 that during the term of your jail sentence, you shall not communicate directly or indirectly with any of the complainants nor their immediate family members.

[34] There shall also be a DNA order and a lifetime prohibition order under Section 109 of the Criminal Code as to weapons on each count.

[35] There is also an order for 20 years in relation to the sexual offender registry and report and provide information as required.

“Justice M.D. McArthur” MCARTHUR, M.D., J. Released: April 25, 2023 (Orally)