



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    information that could identify the victim or a witness shall not be published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 complainants 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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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

CITATION: R. v. Vigon-Campuzano, 2022 ONCA
    234

DATE: 20220318

DOCKET: C69181

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Fernando Vigon-Campuzano

Appellant

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 Im 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. Im 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 appellants 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 Crowns 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 appellants evidence, when viewed in isolation, that
    was implausible or unreliable, when juxtaposed against the Crowns case he
    rejected the appellants evidence. The strength of the Crowns case, and the
    reinforcing evidence of the complainants, undermined the viability of the
    appellants 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
    appellants 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 Crowns evidence, enhanced with the
    similar fact circumstantial evidence, predominates [the appellants] 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
    appellants 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 complainants failure to resist a sexual assault could be explained
    based on a parallel between the complainants 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 judges 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 appellants 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 appellants 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 courts 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 judges reasons failed to
    explain his rejection of the accuseds 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 complainants] evidence
    and the evidence concerning the diary, the appellants 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 Crowns 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 Crowns case against
    them is proved beyond a reasonable doubt.

[37]

We reject the appellants 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 judges 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 appellants evidence because of the
    formidable evidence stacked beside it in this case, especially the reliable
    accounts of the incidents by credible complainants. The trial judges rejection
    of the appellants 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.


