R v Baltazar, 2021 ABQB 177

Court of Queen’s Bench of Alberta Citation: R v Baltazar, 2021 ABQB 177 Date: 20210309 Docket: 190727180Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Dennis Quebral Baltazar Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victims must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice W.T. de Wit _______________________________________________________

Introduction [1] Dennis Baltazar is charged with 16 counts of sexual assault contrary to s. 271 of the Criminal Code. The indictment in thiscase states that these offences took place between October 19, 2017 and September 28, 2018. [2] The Accused was a massage therapist and all of the complainants are clients of the Accused. While massaging 16 maleclients, he is alleged to have touched their genital areas. The issues in this case are whether the Crown has proven the actus reus andmens rea of sexual assault beyond a reasonable doubt.

The Accused has testified, and as is the case in most sexual assault trials, there areissues of credibility. [3] It is uncontested evidence that the Accused graduated in 2013 from the Lyceum-Northwestern University, in the Philippines,and received a Bachelor of Science in Physical Therapy. He also graduated on June 5, 2015 from the Mount Royal University in Calgaryand received a Diploma in Massage Therapy. The Accused became a member of the Remedial Massage Therapists Association (RMTA)in the latter half of 2015. The RMTA became the Canadian Massage and Manual Osteopathic Therapists Association in 2019.

During thetime period of the allegations, the Accused worked as a contractor at the Movement Sports Clinic (MSC) and Chinook Chiropractic &Massage Clinic (CCMC) and 13 of the complainants attended MSC, while 3 complainants attended at CCMC. All of the alleged sexualassaults took place at these two clinics. [4] Two of the complainants came forward by making complaints to the owners of the MSC. The remaining complainants cameforward after learning that the Accused had been terminated as a contractor at MSC or CCMC and through e-mails or media reports, thatthe Accused was under investigation for sexual assault.

They were also given information that if they wished to make a complaint theyshould contact the police. The allegations of each complainant are that during a massage session the Accused either touched theirgenitals, by brushing or grazing their genitals while performing a massage movement, or that the Accused actually grabbed or cuppedthe genitals separate from a massage movement.

The Accused testified that certain occurrences of touching simply did not occur or that ifthey did occur he was unaware that his body had touched the client’s genitals. [5] At the close of the Crown’s case, the Crown made an application to have the evidence of all of the complainants entered assimilar fact evidence on each of the charges against the Accused.

In an oral decision, prior to the defence electing to call evidence, I ruledthat the similar fact evidence was admissible. [6] The defence and Crown, in both written and oral submissions have brought up a number of legal issues which I will discussbefore proceeding with an assessment of the evidence. As stated earlier, the main issue in this case is credibility and that issue must bedetermined on a charge by charge basis by considering the evidence of the Accused, the evidence of the individual complainant alongwith expert and the similar fact evidence.

As stated, before considering the evidence of each count I will discuss the issues and legalprinciples that I must consider in determining the guilt or innocence of the Accused. Elements of Sexual Assault [7] There are three elements to the actus reus of sexual assault. First the Crown must prove that there was a touching, secondthat the touching was of a sexual nature and third that the complainant did not consent to the sexual touching.

The mens rea of sexualassault requires the Crown to prove that the Accused intended to touch the complainant and that the Accused knew or was reckless orwillfully blind that the complainant was not consenting to the touching: see R v Ewanchuk, (SCC), [1999] 1 SCR 330.In this case the allegations by all of the complainants are that their genitals were touched by the Accused. The Accused has testified thatcertain alleged touching did not occur and that if touching did occur he was unaware that the touching had occurred.

Sexual Nature [8] The first legal issue I will discuss is whether the Crown has proven that the occurrences of touching in question were of asexual nature. This determination must be made with respect to each count. However, I wish to discuss the principles of what constitutesa “sexual nature” prior to discussing the facts and my findings on each count. In this case, the defence argues that the Crown has notproven that the occurrences of touching in issue are of a sexual nature.

In R v Chase, (SCC), [1987] 2 SCR 293, theCourt stated at 302: Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault, within any oneof the

definitions of that concept in s. 244(1) of the Criminal Code, which is committed in circumstances of a sexual nature, such that thesexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisitesexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assaultvisible to a reasonable observer?": Taylor, supra, per Laycraft C.J.A., at p. 269.

The part of the body touched, the nature of thecontact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstancessurrounding the conduct, including threats, which may or may not be accompanied by force, will be relevant: see S.J. Usprich, "ANew Crime in Old Battles: Definitional Problems with Sexual Assault" (1987), 29 Cr. L.Q. 200, at p. 204. The intent or purpose of theperson committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conductis sexual.

If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor indetermining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of manyfactors to be considered, the importance of which will vary depending on the circumstances. [emphasis added] [9] In R v Litchfield, (SCC), [1993] 4 SCR 333, where a doctor was alleged to have touched seven patients in asexual manner, the Court stated at 344:

The sexual aspect of a sexual assault forms part of the actus reus; there is no requirement that a person accused of sexual assaulthave any mens rea with respect to the sexual nature of a sexual assault. This was the holding of this Court in R. v. Chase, (SCC), [1987] 2 S.C.R. 293, which decided that sexual assault is a crime of general intent and that the Crown did not have toprove a specific intent with respect to the sexual nature of the assault.

As McIntyre J. wrote for the Court at p. 302: The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor inconsidering whether the conduct is sexual ... It must be emphasized, however, that the existence of such a motive is simply one of manyfactors to be considered, the importance of which will vary depending on the circumstances. [emphasis added] [10] The Accused testified that if he had touched any of the complainants he did not receive any sexual gratification from thetouching.

However, the sexual gratification of the Accused is only one factor to consider. In R v V(KB), (SCC), [1993]2 SCR 857, the accused was the father of a three-year-old boy. The accused grabbed the genital area of his child because the child hadengaged in similar activities with others and the father grabbed his son’s genitals to show him how much it hurt. The defence had arguedthat the touching was not for a sexual purpose, but the trial judge convicted and that conviction was upheld by the Court of Appeal.

TheSupreme Court of Canada concluded that the trial judge could come to a decision that the contact was sexual in nature as the sexualintegrity of the son had been violated. “Sexual Assault does not require proof of an improper or ulterior purpose”: R v Lutoslawski, 2010SCC 49, at para 1. [11] To conclude that the touching took place in circumstances of a sexual nature, it need not necessarily be for a sexual purpose.It is clear that determining if the touching in question is of a sexual nature will involve a court considering a number of factors such asthe body part touched, the nature of the contact and the circumstances surrounding the contact.

Whether Mr. Baltazar received anysexual gratification from his actions is only one factor to consider and if it is found to be present would likely be determinative of theissue of sexual nature. Actions that compromise the sexual integrity of a complainant may not be for a sexual purpose but cannonetheless be of a sexual nature. [12] The defence refers to cases of R v Lai, 2020 ONSC 231, and R v Clottey, 2018 ONCJ 536 as situations analogous to those inthis case, and in those cases the courts stated that the issue of the sexual nature of the touching had not been proven.

In both of thosecases there was touching of the breasts and vagina of female patients. In Clottey, the accused was a family doctor and there were sixpatients. The expert witnesses in Clottey, two for the Crown and one for the defence, all stated physical touching of the breasts andvaginal areas, were allowed according to medical procedure. The trial judge in Clottey stated at paras 489-490: Doctor-patient sexual assault cases are somewhat different from other sexual assault cases because there can be legitimate medicalreasons for a practitioner to examine a patient’s sexual organs.

So the “part of the body touched” - admittedly a relevant factor as perChase - requires contextual consideration. So long as the practitioner has a valid medical purpose and, objectively, a legitimate reason for examining the breast or genital area, thenunless the touching is of a sexual nature, the part of the body touched is of less significance in the analysis. [...] [13] In Lai, the accused was a Traditional Chinese Medicine practitioner. There were three complainants.

One of the complainant’sattended with the accused to obtain an “energy” treatment which involved the accused rubbing her breasts and putting his finger in hervagina. The second complainant also attended to obtain an “energy” treatment and help in getting pregnant. The accused was alleged tohave touched her breast and massaged from her belly button to her vagina area. The third complainant attended with the accused becauseof digestive problems and also received an “energy” treatment where he rubbed her breasts and placed his hand on her vagina.

It was theCrown’s position that these types of touching were not legitimate Traditional Chinese Medicine treatments. However, the expert in Laitestified that a massage on the breasts can be appropriate and that there were acupoints in the abdominal/pubic area that could also belegitimately touched. With respect to the first complainant, the trial judge found her evidence to be unreliable with respect to where andhow the accused touched her.

With respect to the second complainant, she was inconsistent in her evidence of whether the accusedactually touched her vagina and the trial judge referred to the expert’s evidence that the location of one of the acupoints was exactly atthe point before the pubis begins to curb under the body. Similarly, with respect to the third complainant the allegation was that theaccused had his hand on her vagina for a few seconds on one occasion.

The trial judge had a doubt as to whether this touching was for asexual purpose. [14] In my view a significant difference between these two cases and the case at bar is that the occurrences of touching in questionin those two cases were, or could be, legitimate according to experts in those cases, or there was an issue as to whether they had beenproven to have occurred beyond a reasonable doubt. I will review the expert evidence in this matter in greater detail later in these reasons.However, the expert evidence called in the case at bar was much different than the expert evidence in Clottey and Lai.

In this case theexpert witness, Ms. Mwamburi, testified that the penis, testicles and perineum were never to be touched and that there was no therapeuticvalue to touching these areas. The Accused also admitted in his testimony that there was no therapeutic value to touching of the genitalareas.

Touching of the genitals is never a bona fide massage therapy. [15] Although where the touching has been proven, the part of the body touched is only one factor in determining whether thetouching was of a sexual nature, in this case it is an important consideration along with the circumstances and the nature of the contactincluding the number of contacts and what was said during the massage. Each count will involve its own evidence with respect to thenumber of contacts and the nature and circumstances of the contacts.

In this case, whether the Crown has proven beyond a reasonabledouble that the touching took place in circumstances of a sexual nature will depend on the nature and circumstances of the incident. Eachcount will have to be determined according to the facts relevant to that count. However, with respect to most of the counts the sexualnature of the assaults will be proven where it is proven that the touching in issue occurred and the Accused had knowledge of thetouching and intended to touch the complainant’s genitals.

Where touching has been proven, the sexual nature will be proven if theAccused was aware of the touching, and if its occurrence could have been an accident, there will be a reasonable doubt. Consent

[16] With respect to the issue of consent, s 273.1(1.2) of the Criminal Code incorporates section 265(3) which states that noconsent is obtained where the complainant submits or does not resist by reason of fraud. [17] In R v Collins, 2007 NBBR 124, a massage therapist had performed breast massage on a female client after he indicated to herthat she had a heart condition that could be treated with breast massage. The Court stated at para 33: T.B.'s permission or acquiescence in allowing Mr.

Collins to proceed with and continue the breast massage treatment in the absence ofknowledge that it was not a bona fide massage therapy treatment does not constitute consent in law. I am satisfied that the Crown hasproven beyond a reasonable doubt that T.B. did not consent to the breast massage treatments. Further, in the circumstances of this case Iam satisfied that there is no evidence upon which Mr. Collins could avail himself of the defence of honest but mistaken belief orapprehended consent pursuant to subsection 265(4) of the Criminal Code.

In any event, in my view, any such defence would be vitiatedby the provisions of 273.2 of the Criminal Code considering Mr. Collins' recklessness or wilful blindness to T.B.'s lack of consent andhis failure to take reasonable steps to ascertain that T.B. knew the true nature of the treatments she was allowing him to perform. [18] In order for there to be consent to that touching in this case in the context of therapeutic massages there need be therapeuticvalue to touching these areas and which needs to be explained to the clients.

There are only a few counts where the issue of consent willarise and I will consider the evidence pertaining to those counts. Because of the nature of the relationship between the complainant andthe Accused who was their massage therapist, consent to the alleged touching in this case would need to be obtained by explaining to theclient that there was no therapeutic value to touching these areas. However, in most of the counts there is no factual basis that thecomplainants consented to the touching of their genitals or that the Accused had a mistaken belief in consent in this case.

In situationswhere there is an issue regarding consent, that consent was not predicated on the Accused explaining to the complainant that there wasno therapeutic for touching of the genitals. Touching and Intention to Touch [19] The ultimate issues in this case are whether the Crown has proven that the alleged occurrences of touching took place andwhether they were intentional. There is no doubt that incidental or accidental contact in the course of legitimate duties is not touching ofa sexual nature or intentional touching. In this case the defence has stated that Mr.

Baltazar was legitimately massaging the groin and hipflexor areas. This is not in doubt. If I conclude that the Accused touched the genitals accidently, or unintentionally as part of a legitimatemassage, then this means that the Crown did not prove the mens rea of sexual assault. In order to convict the Accused, the Crown mustprove beyond a reasonable doubt every element of the offence with respect to each complainant. The Crown has provided their evidenceincluding the evidence of the complainants on each count and the Accused has testified and given his version of events.

This requiresthat the Court determine the issue of credibility with respect to whether the alleged touching took place and, in some of the counts,whether the Accused knew and intended to touch the complainants. Credibility [20] Assessing issues of credibility is often important in criminal cases, but even more so in cases of sexual assault where there areno witnesses to the allegations, other than a complainant, and the evidence is provided by a complainant and a testifying accused. In R vW(D), (SCC), [1991] 1 SCR 742 the Court provided a framework for determining the issue of credibility.

The Crownmust prove the elements of the offence beyond a reasonable doubt. It must always be remembered that the onus of proof in a criminalcase could not be more divergent. The Crown must prove their case beyond a reasonable doubt while the defendant need not proveanything. In R v Lifchus (SCC), [1997] 3 SCR 320, the Supreme Court made it clear that the principle of proof beyondreasonable doubt is directly linked to the presumption of innocence and that proof beyond a reasonable doubt is not a standard which isemployed by most people making even the most important decisions in their life.

Most decisions in life are made based on believing oneset of facts over another set of facts on a balance of probabilities. However, such a standard is too low of a standard to prove guilt in acriminal case. As stated by the Supreme Court in R v Starr, 2000 SCC 40, the standard of proof beyond a reasonable doubt is muchcloser to proof to absolute certainty then to proof on a balance of probabilities. However, the Court explained that the Crown need notprove its case to an absolute certainty and proof beyond a reasonable doubt is not proof beyond any doubt.

Nonetheless, proof beyond areasonable doubt requires evidence that is reliable, consistent and which stands up to scrutiny. A credibility determination in a criminalcase should never be choosing one version over another. The issue of credibility in a criminal case should never involve a comparison oftwo versions of events “trying to work out which one is more believable”: R v F(S), 2007 PESCAD 17 at para 27; see also R v Ryon,2019 ABCA 36 at paras 40 and 51.

During a criminal trial, a trier of fact does not determine what happened or whose case is stronger,but whether the specific criminal allegations have been proven beyond a reasonable doubt. [21] The three-step formula was set out in W(

D) at 758: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] As stated by Doherty JA in R v Carrière (2001), (ON CA), 159 CCC (3d) 51 (Ont CA) at para. 50: The instruction suggested by Cory J. does not advise the jury to begin with the evidence of the accused. Rather, it tells them that whenassessing the credibility of the accused, they should approach it in the three stages outlined in the model charge. Properly understood, R.v.

W.(D.), supra, does not impose any limits on how the jury proceeds with its deliberative process. [23] Since 1991 many cases have commented on the W(

D) framework including the recent case of Ryon, and R v Achuil, 2019

ABCA 299. The Ryon case made it clear that when considering the first and second steps of the W(

D) test, the trier of fact must considerthe evidence of the accused, and any other exculpatory evidence heard in the trial, in the context of the evidence as a whole. The firststep of the W(

D) formula requires that the trier of fact “believe” the accused. “Believing” the accused was discussed in JusticePaciocco’s extremely helpful paper entitled “Doubt About Doubt: Coping with R. v. W. (D.) and Credibility Assessment (2017), 22 Can.Crim. L. Rev. 31, where he states that believing the accused in step one is the “total acceptance” option. Where a trier of fact, afterconsidering the accused’s evidence in the context of the evidence of a whole, determines that they have total acceptance or believe theaccused’s evidence over that of the Crown, in regards to the elements of the offence or the applicability of a defence, then they mustacquit. [24] The second step of W(

D) states that a trier of fact must acquit even where they do not have total acceptance or even believethe accused’s version of events, but are nonetheless left in a reasonable doubt as to the accused’s version of events. As discussed in Ryon,there is some confusion on how evidence that is rejected as not being believable could then raise a reasonable doubt. However, JusticeMartin, in Ryon states at para 38: It may be helpful to step back and consider the message intended to be delivered.

In short, it is that when assessing exculpatory evidencejurors should understand that they have three choices, not two: they may accept the evidence, they may reject it, or they may findthemselves unsure whether the evidence is true or false. In other words, there is a “third alternative” to confident acceptance or confidentrejection and if they find themselves in this middle ground that usually means they have a reasonable doubt that must benefit the accused.[…] [citations omitted] [emphasis in original] [25] Again, it must be remembered that the onus is on the Crown.

The evidence of the defence could be much weaker than that ofthe Crown, but if a trier of fact nonetheless concludes it could have occurred it can raise a reasonable doubt with respect guilt. In somesituations, the evidence of the Crown is so strong that even a plausible explanation by the accused will not raise a reasonable doubt.

Thisrequires that the Crown’s case be strong enough to prove guilt beyond a reasonable doubt despite the plausible explanation of theaccused: see R v Vuradin, 2013 SCC 38 at para. 13, R v M(R.E.), 2008 SCC 51; R v D(JJR) (2006), (ON CA), 215CCC (3d) 252 (ON CA), leave to appeal refused May 10, 2007 (31767). An accused’s evidence, considered in isolation, may not have areason to be disbelieved or raise a reasonable doubt, but when considering the accused’s evidence in the context of all the other evidence,a reasonable doubt may no longer be present.

As stated in R v M(O), 2014 ONCA 503 at para 45: “The trial judge did not err byfactoring the strength of the Crown’s case into his credibility and reliability analyses and by relying on it as one basis for rejecting theappellants denials of the alleged assaults.” [26] The third step of W(

D) indicates that even if the accused’s evidence is not believed and does not leave the trier of fact with areasonable doubt as to guilt, the trier of fact must nonetheless be satisfied that the Crown evidence, they do accept, convinces them of theguilt of the accused beyond a reasonable doubt. The accused need not prove anything. A finding that the defence evidence is not truedoes not mean the Crown has proven its case beyond a reasonable doubt. Completely valueless defence evidence does not eliminate theonus on the Crown to overcome the presumption of innocence and prove their case beyond a reasonable doubt. As was stated in F(

S) atpara. 31: A conviction can only come about if the Crown evidence is so reliable, so consistent and so believable that it proves beyond a reasonabledoubt the guilt of the accused. There must be no other reasonable conclusion from the evidence.

If there is any reasonable doubtremaining after you hear the evidence of the Crown, either because of inconsistencies, unreliability, a lack of credibility, or anythingelse, you must acquit — no matter what you thought of the accused’s evidence. [27] A determination of credibility must never involve a trier of fact choosing one version of events as being more likely than theother.

This requires that the Crown evidence is so strong that it proves each element of the offence or disproves a defence beyond areasonable doubt. [28] I will consider these principles of determining the issue of credibility with respect to each of the charges separately. However,before doing so I will first review the law with respect to the following issues which must also be considered when considering the issueof credibility.

Expert Evidence [29] A voir dire was held and the Crown sought to have Janet Mwamburi qualified as an expert in practice standards and the scopeof practice in the field of massage therapy and therefore qualified to give opinion evidence in the scope of acceptable practice within theadministration of a clinical massage. Ms. Mwamburi received her Diploma in Massage Therapy in 2010 and has been the vice presidentand president of the RMTA. She has also been involved in the education of massage therapists and was the developer and facilitator ofsexual misconduct workshops for massage therapists.

Her curriculum vitae was marked as exhibit 22 in these proceedings. The defencedid not take any issue with the qualifications of Ms. Mwamburi or the scope of her expertise as set out by the Crown. I allowed her toprovide expert evidence and her report was marked as exhibit 23 in these proceedings. [30] Ms. Mwamburi testified about consent needed for massage therapy and the difference between consent and informed consent.She testified that informed consent required that a therapist discuss a treatment plan and treatment goals with their client.

She furthertestified that informed consent required that all information be given to the client with respect to what could occur and that then theclient could give consent. Ms. Mwamburi testified that implied consent could only occur after a client had had a number of treatmentsand the client would then know what treatment would be given and why it was needed. [31] Ms. Mwamburi made clear that there were certain prohibited areas of massage such as the penis, testicles and perineum.

Shealso testified that these areas should never be touched and that there was no part of the massage therapist training that would include thetouching of these areas, because there was no therapeutic basis for touching these areas. Ms. Mwamburi stated that sensitive areas suchas the abductor muscles, the groin area and the glutes could be massaged but both written and oral consent were required. She furtherstated that if such consent was not obtained touching those areas would constitute professional misconduct. However, in cross-

examination she admitted that in certain circumstances a client might wish to have the areas massaged immediately and, in those circumstances, written consent need not be obtained. [ 32 ] Ms. Mwamburi testified that proper draping created a boundary so that the massage therapist would not touch the prohibited areas. The use of sheets or towels to drape the body requires that a sheet or covering will cover all of a client’s body except for the area that is actually being massaged. Ms.

Mwamburi indicated that draping is used so that the massage therapist does not come close to the prohibited areas and therefore prevents accidental contact in those areas. She further testified that the draping should be done so that the sheet is tucked in securely under the body and that the draping should not move no matter how vigorous the massage. However, she indicated that it was not unusual for draping to loosen if the massage therapists were using certain techniques. She also testified that in certain circumstances the client may move their legs and expose themselves. Ms.

Mwamburi stated that if the draping were to loosen, the massage therapist is to stop the massage technique they were doing and immediately inform the client that they will be re-tucking the sheet. She testified that there should be no exposure of the sex organs to the air. She stated that any exposure that occurred should only last for approximately 1 to 2 seconds. She further stated that the client has no role with respect to the tucking or draping. In cross- examination, Ms. Mwamburi admitted that it was not unusual for a drape to become dislodged especially where massage was vigorous. [ 33 ] Ms.

Mwamburi testified that if there is inadvertent touching of a prohibited area the massage therapist should immediately stop the massage therapy that they were performing and make a note of the touching to the client and then apologize. She also testified that where inadvertent touching of the genital area occurs the therapist should document what occurred after the treatment. However, in cross-examination she admitted that there were no written requirements that inadvertent touching should be documented. Ms.

Mwamburi testified that inadvertent contact could occur where a massage therapist would use their forearm on the inner thigh and the elbow could then make inadvertent contact with the genitals. She indicated that only one contact would be acceptable and that the massage therapist would know if they exceeded the boundary and actually touched the genitals. [ 34 ] Ms. Mwamburi was asked by the Crown if using a cross body technique was appropriate. She described a cross body technique as where a massage therapist was standing in one area of the body and reached across the body to massage another area.

She indicated that such a technique could result in incidental or inadvertent touching and that such a technique was not best practice. [ 35 ] Ms. Mwamburi was specifically asked about inadvertent contact between a massage therapist and their client and she testified that a massage therapist would know they had exceeded the boundary and made inadvertent contact immediately. The Crown asked why a therapist would know, and Ms. Mwamburi stated that they would know as they were trained in anatomy. She also testified that a massage therapist is taught about body mechanics, draping and communication with the client.

Inquiring about how knowledge of the touching could be ascertained, the Crown provided the following hypothetical to Ms. Mwamburi: “assume the client doesn’t say anything, how would a massage therapist know that they had touched the genitals if it was inadvertent”. Ms. Mwamburi responded as follows: “they would feel it”. She then stated that from a massage therapist perspective because their work is extremely tactile every massage therapist has increased sensitivity to be able to know exactly where their own anatomy or their own technique would lead to a touch.

In cross-examination the following exchange took place: Q And what you're essentially saying is that the therapist should feel that they have impacted the genitalia? A That is correct. Q Now, you have explained why it's your opinion that a massage therapist would feel that they have impacted genitalia. And, as I understood your evidence, you said massage -- from a massage therapy perspective, it is tactile work; that you assume every massage therapist has increased sensitivity to know where their own anatomy and techniques have led to touch. Have I paraphrased essentially what you said? A That is correct.

Q So the evidence that you're offering this Court is that you assume the massage therapist have increased sensitivity? A And experience, yes. Q And -- I'm sorry, you've just said? A In my experience and in experience. If they have been in the industry, they would have increased sensitivity. Q So if we're talking about an impact on genitalia that has been caused by some part of the therapist's hand, is it your evidence that massage therapists have increased sensitivity in their hands? A They do, yes.

Q And in terms of your -- the references or how it is you come to that opinion, is that -- that's not in your report? A No, that's not in my report. Q In your report, you haven't said anything about massage therapists having increased sensitivity? A That is correct. Q And in terms of the references in your report that you've used to create your report, there's nothing there, in those references, that talks about massage therapists having increased sensitivity? A No, none.

Q And in terms of scientific literature, social-science experiments, that kind of thing, are you able to indicate to the Court whetheror not you're familiar with a scientific basis for your opinion that there's increased sensitivity in massage therapists' hands? A Not that I know of. Q In those scope of practice documents, the Exhibits 3 and 4 that we have been talking about, there's nothing in those documentsthat talk about massage therapists having increased sensitivity in their hands? A No, there is not.

Q And in terms of ranges of abilities of massage therapists, you'll agree with me that how sensitive a particular massage therapist isgoing to vary; there's going to be a continuum? A That is correct. Q Some massage therapists are going to be extremely sensitive in terms of their ability to detect what they may have touched? A That is correct. Q And other massage therapists are going to be lower on the continuum in terms of being more unaware?

A That is correct. [36] It is hardly necessary for an expert to opine that touching of the penis, testicles or perineum is not part of massage therapy andthere should never be touching of those areas. Of more importance is Ms. Mwamburi’s evidence with respect to inadvertent touching andwhether a massage therapist would know if they had made contact with prohibited areas of the male genitalia. However, the defence, inoral argument, warns the court must be cognizant of the scope of an expert opinion and not allow an expert to stray and provide anopinion that is not properly within their scope of expertise.

In addition, an expert should not provide content which is not properly thesubject of expert evidence: see R v Sekhon, 2014 SCC 15, R v Sandoval-Barillas, 2017 ABCA 154. In my view Ms. Mwamburi’stestimony that a massage therapist would know if they made contact with a male client’s genitals and the reasons why they would knoware of some assistance to a trier of fact. However, whether Mr. Baltazar actually knew if he made contact is a factual determination to bemade by the court after considering all the facts and circumstances of each count separately. [37] In her testimony Ms.

Mwamburi stated that a massage therapists work is tactile and they are trained to touch and be aware ofwhere and how they are touching. Defence counsel, in cross-examination of Ms. Mwamburi, had her agree that certain massagetherapists had more sensitivity in their hands than others. This is a common sense deduction. However, it does not detract from Ms.Mwamburi’s opinion that all massage therapists would know if they made contact with their client’s genitals because their trainingtaught them to be sensitive towards touching their client’s genitals.

That sensitivity is a result of a massage therapist being aware of theirclient’s anatomy, how close to the genitals they are massaging, the chance of making contact while using certain techniques and the useof draping to separate the massage therapists hands and body from the client’s genitals. The strict requirement that there be no contactwith a client’s penis, testicles or perineum, should be in the mind of a massage therapist and because of all of these factors a massagetherapist would “know” if they made contact with a client’s genitals.

However, as stated earlier the circumstances of each count willhave to be considered separately, to determine if the Accused had knowledge that he was touching his client’s genitals. The expertevidence is not determinative of such a finding in is only one factor to consider. Influences on a Witnesses Perception [38] There is no doubt that in this case the majority of the complainants did not initially make complaints to the police or theowners of the Movement Sports Clinic or the Chinook Chiropractic and Massage Clinic.

There is also no doubt that the complainants didnot have contact with each other before making their complaints. In fact, none of the complainants knew each other or had met eachother. They made their complaints as a result of e-mails from the clinics to their clientele or from hearing news reports about the Accusedbeing investigated. The emails were marked as exhibits 5, 7 and 8 and informed the two clinic’s clientele that news reports indicated thatthe Mr. Baltazar had been charged with multiple counts of sexual assault.

These e-mails also provided ways in which others who hadexperienced inappropriate contact with Mr. Baltazar could report their experience to the police. These e-mails also informed the clientelethat Mr. Baltazar no longer worked at the clinics. The e-mails from MSC indicated that the patients that had come forward were braveand courageous. [39] After contacting the police, the majority of complainants then had an interview with Detective Chambers.

After providingtheir version of events, the majority of complainants were informed by detective Chambers that they had been sexually assaulted, thatthere was no reason for Mr. Baltazar touching their genitals and that what he did was wrong. Certain complainants were told differentthings and I will review what exactly was told to them that may be relevant during my evaluation of each count.

However, there is nodoubt that detective Chambers made certain comments that would confirm to the complainants that a sexual assault had occurred.Detective Chambers also sent a communication to the complainants wherein she indicated that a judge agreed with a Crown applicationfor the cases to be heard by straight indictment. This communication is marked as Exhibit 2 in these proceedings. Clearly it is not for ajudge to determine whether the Crown should proceed by way of straight indictment.

Detective Chambers also informed thecomplainants in a text, that was marked Exhibit 3 that the Crown and defence were attempting to resolve the matters. [40] There is no doubt that information provided to witnesses, after the incidents relating to the charges, can affect a witnesses’memory. In R v F(J) (2003), (ON CA), 177 CCC (3d) 1 (Ont CA), the Court at para 77, considered the effect of awitness hearing other people’s stories: The trial judge’s finding that B.H. was sincere, a “straight shooter”, and not influenced by E.T. and the others, fails to take into account

that collusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's

interpretation of personal events or reinforce a perception about which one had doubts or concerns. [emphasis added] [ 41 ] However, the effect that certain information may have on a witnesses’ memory will vary depending on the information provided and witnesses susceptibility to being influenced. In the case at bar none of the complainants were given information about other complainants’ stories or their allegations. In addition, the comments made by detective Chambers were made after the complainants had provided their version of events.

There was little cross-examination of inconsistencies between the evidence given by the complainants in their prior statements. The evidence of the complainant, DW, when asked in cross-examination if the comments of Detective Chambers has influenced him, is informative . He stated that what happened, happened, and that it was for the courts to determine if this was a crime and that he was not influenced by what detective Chambers had said. [ 42 ] The defence provides the case of R v Fuller , 2020 ONSC 180 for the proposition that disclosing resolution discussions could influence their perceptions and testimony.

However, in Fuller the information given to the witness was that the accused was going to plead guilty. In this case there was no indication that Mr. Baltazar was considering pleading guilty only that the Crown and defence were in resolution discussions. As an example, in this case defence counsel put to the complainant, Mr. Moyse, that when he read the email about resolution it meant to him that Mr. Baltazar was taking responsibility. Mr.

Moyse denied gleaning such a meaning from the email about resolution. [ 43 ] The defence reviewed the evidence of a number of complainants where they questioned whether the touching of their genitals was accidental. The Crown does not dispute that most of the complainants were confused and questioned whether the occurrences of touching were intended or accidental. However, this confusion was in relationship to “why” Mr. Baltazar would touch them and not as to whether the touching occurred. As stated by DW it was not for him to decide whether the touching should result in a conviction.

The Court must consider all of the evidence in determining the issue of credibility and the emails from the clinics, the comments of Detective Chambers, the media reports and any other possible influences must be considered in the assessment of each complainant’s credibility and reliability. Use of Similar Fact Evidence [ 44 ] As stated earlier, I made a ruling at the end of the Crown’s case allowing the Crown’s application for similar fact evidence. In that ruling I indicated that there was absolutely no evidence of collusion between the complainants .

In this case there are 16 counts of sexual assault; there was originally 17, but Count #7 was stayed by the Crown. Normally a court is restricted to considering only the evidence of the acts alleged in the particular charge. However, where similar fact evidence is admissible, other acts on other occasions, and in this case other counts in this indictment may be considered in determining whether the Crown has proven the subject charge beyond a reasonable doubt.

I have ruled that the evidence across counts can be used in evaluating the evidence in each particular charge. [ 45 ] In this case the Crown sought to have the similar fact evidence admitted pursuant to the issue of mistake or accident which is related to the mens rea of the Accused. In their written submissions, the Crown also requested that the similar fact evidence be admitted with respect to the issues of the actus reus and the credibility of the complainants.

After the Crown witnesses had provided their testimony and during the voir dire on the admissibility of the similar fact evidence, I had enquired of Crown counsel as to why they were not seeking the admissibility of the similar fact evidence on the issue of proving the actus reus and the complainant’s credibility , and they indicated that they wished to focus only on the issue of mistake or accident. [ 46 ] The Crown indicates that it only sought the admission of the similar fact evidence with respect to mistake or accident at that time, because during cross examination of the complainants, the defence focussed on whether the touching was incidental or accidental and whether the Accused would have noticed the contact.

The Crown takes the position that the defence did not suggest to the complainants that the touching did not occur or that the more evasive touching did not occur. At the time of the Crown application to have the similar fact evidence admitted, the Crown did not know whether the Accused would testify. However, the Accused did testify and during the Accused’s testimony, he denied that the more intrusive touching occurred and that he was not aware of any touching that might have occurred.

With respect to assessing the Accused’s evidence pursuant to W(D), I must consider the Accused’s evidence in the context of all the evidence, including the complainant’s evidence, and such consideration includes the strength of the Crown’s evidence. Prior to final oral argument, at the end of trial, I wrote both the Crown and defence about whether I could use the similar fact evidence in regard to an assessment of the complainant’s evidence and the issue of proof of the actus reus .

During oral argument counsel asked that they be able to provide written submissions on this issue and I have received those submissions from both the Crown and defence. [ 47 ] The Crown submits that similar fact evidence admitted for the purpose of rebutting a defence of accident or inadvertent touching is a piece of circumstantial evidence that can be used to assess the credibility and reliability of the Accused’s evidence at all stages of the W(

D) analysis. In addition, the Crown submits that the use of similar fact evidence is not limited in instances where the Accused, Mr. Baltazar, denied the actions alleged by the complainants, and can be used to determine whether the Crown has proven the case beyond a reasonable doubt. The defence submits that the use of similar fact evidence is restricted to the issue of accident or mistake and cannot be applied to determine the actus reus or to assess the credibility or reliability of the complainant’s evidence.

The defence states that the court cannot use the similarity of the complainant’s evidence to undermine Mr. Baltazar’s evidence on any issue beyond the scope of its similar fact ruling, including as a basis to reject his evidence that the touching did not occur. [ 48 ] I note that there is case law where an appellate court upheld the use of similar fact evidence by a trial judge despite the absence an application for its admission or for other purposes than why and for what it was initially admitted for.

For example, in the recent case of R v MRS , 2020 ONCA 667 , the accused was convicted of sexual assault and other offences in a jury trial. No application was made by the Crown to have similar fact evidence admitted and used across counts, and no limiting instruction was given regarding the use of such bad character evidence. The Court of Appeal allowed the appeal because the trial judge should have given a cross-count and propensity direction to the jury but Justice Paciocco stated at para. 66:

A trial judge will therefore err by admitting bad character evidence that is not admissible under other rules of evidence, or by permittingsimilar fact inferences to be drawn from bad character evidence that has been admitted for other purposes where there has not been asimilar fact evidence application and an admissibility ruling.

However, such errors will not be fatal on appeal if the evidence would havebeen admissible as similar fact evidence to support those inferences and the accused had a meaningful opportunity at trial to respond tothe use to which the evidence was put: Nolan, at para. 41, T.C., at paras. 55, 59. [49] In R v Michaud, 2012 NBCA 77, the accused was charged with 148 counts of providing false statements and documents toindividuals relating to taxation matters.

During final argument, the Crown did not argue for the admissibility of the evidence as similarfact evidence, and took the position that the issue was wilful blindness. However, they stated that if the similar fact evidence should beconsidered, it met the test that its probative value outweighed the prejudicial effect. A significant portion of the appeal decision dealswith the requirement of notice to the defence before similar fact evidence can be admitted and used in the determination of guilt.

TheCourt held that the common practice was for the Crown to provide notice to the defence that they would be seeking the admission ofsimilar fact evidence at the end of the Crown’s case.

The Court went on to state at para 45: In my view, the propositions in academic writings and case law, together with the generally accepted practice, regarding notice andadjudication of similar fact issues before an accused embarks on his/her defence, can be reconciled with L.(T.B.) and, for that matter withdeKock, by the rejection of a strict procedural rule requiring the prosecution to always give advance notice of its intention to use certainevidence as similar fact evidence.

I cannot rationalize an inflexible rule of law that would automatically exclude such evidence for themere failure of the prosecution to follow the usual procedure. Oversights happen! On the other hand, there is no need to cite authority forthe proposition that courts must react where trial fairness may have been compromised.

Thus, in my view, where timely notice is notgiven and where adjudication of a similar fact issue is not sought until after an accused embarks on his/her defence, similar fact evidenceshould not be admitted where it is shown that the lack of notice, or the late adjudication of the issue, has occasioned prejudice to thedefence and resulted in an unfair trial. [emphasis in original] [50] The Court in Michaud went on to discuss the issue of prejudice to the defence and stated at paras 46-47: I believe that timely notice, together with adjudication of a similar fact issue before an accused embarks on a defence, is already the normthroughout the country.

In my view, there is a sound basis for this practice. It is the prosecution that knows if a similar fact evidenceissue will be raised and it is only fair that it advise the defence at the earliest opportunity and only fair that, in the absence of anagreement to defer the matter until the very end of trial, the issue be determined before an accused embarks on his/her defence.

While Idecline, as did the Ontario Court of Appeal in L. (T.B.), to recognize this practice as a strict rule of law, I certainly allow, as I believe theOntario Court did, that, in situations where prejudice to the defence can be shown, the similar fact evidence should be rejected on thebasis of untimely notice or late adjudication of the issue. In my view, the situation is the same whether the issue of similar fact evidence is raised by the prosecution at the end of trial, by the trialjudge in the course of argument, or, as in this case, by the trial judge after arguments.

If there is no prejudice, there is no unfairness. Ifthere is prejudice, the evidence should be rejected. Or, as in this case, the evidence being already admitted, it should not be consideredacross all counts. [51] In R v TC, 2019 ONCA 898, the accused was charged with six sexual offences, involving two complainants and the trialjudge admitted all of the evidence across counts as similar fact evidence. The Crown had made a request at the pre-trial conference tohave the similar fact evidence admitted, but during the trial made no formal application.

However, the trial judge instructed the jury onthe use of the similar fact evidence. A pre-charge conference had been held and the defence did not object to the admissibility of thesimilar fact evidence. On appeal, defence counsel argued that the absence of a formal application by the Crown that defined the purposefor which the evidence was to be admitted should result in a new trial. The Court disagreed and stated at paras 57-59: The Crown request as articulated at the pre-trial conference did not expressly identify the purpose for which the similar fact evidencewould be used.

The purpose for which the evidence is to be used is critical to determine if there is a basis for admissibility: Handy, atparas. 73, 82 and 99. However, I would not view that deficiency as determinative in this specific situation, for two reasons. First, thespecificity of the Crown's request was a function of the position the defence was taking. That position was a lack of objection to theevidence being used across counts. At no time did the defence or amicus indicate that more specificity was needed before a response wasarticulated.

Second, this was at its core a case with one overarching issue: did the offences occur as the complainants described them?The appellant's defence was a denial either of what occurred or that what occurred had the character alleged. The purpose of the evidence— the issue the evidence would go to — namely whether there was a pattern of behaviour showing the appellant engaged in acts of acertain character in specific circumstances — was obvious. Indeed, the trial judge in his charge described that purpose: "a pattern ofsimilar conduct that confirms each complainant's testimony that the offences took place".

An admissibility inquiry is required when similar fact evidence is in issue. The trial judge has a gatekeeper function, namely, to decidethe threshold admissibility question of whether the evidence on one count may be considered by the jury on any of the others. Asoutlined above, the trial judge decides this question based in part on whether the allegations reveal a pattern of similar conduct.

However,once the trial judge determines the evidence is admissible across counts, it is "entirely within the province of the jury" to decide whetherthey consider the conduct sufficiently similar to make any inference based on a pattern of similar conduct: R. v. Simpson, (1977), (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.), at pp. 345-46, per Martin J.A., quoted with approval in R. v. Arp, (SCC), [1998] 3 S.C.R. 339 (S.C.C.), at para. 65.

Once the evidence is before the jury, the trial judge's duty is to guide the jurythrough that process with an adequate instruction about the permitted and prohibited uses of this evidence: R. v. T. (J.A.), 2012 ONCA177, 288 C.C.C. (3d) 1 (Ont. C.A.), at para. 50. The trial judge effectively considered admissibility of the evidence across counts in the context of how he would charge the jury. Thiswas appropriate.

In a multi-count indictment case, the similar fact evidence issue is not whether the evidence will be heard at all, butwhether evidence the jury has heard, because it was properly admissible on one count, can properly be taken into account on another.The trial judge invited submissions, in the pre-charge conference, on what the jury should be told they could and could not do with such

evidence. Failing to conduct a separate admissibility hearing in these circumstances does not justify appellate interference, especiallygiven the absence of any defence objection: Graham, at para. 32. [52] There is no doubt that there is ample legal precedent for the use of similar fact evidence on the issue of proving the actus reusrelated to the credibility of the complainants. See: R v B(CR), (SCC), [1990] 1 SCR 717; R v H(DA), 1997 NSCA 168;R v C(T) (2005), (ON CA), 74 OR (3d) 100 at para 56 (CA).

In light of what was argued before me, I do not see howthe defence could argue that they would be prejudiced by the admission of similar fact evidence on the issue of proving the actus reusand the credibility of the complainants.

As stated in R v (TB), 2003 CarswellOnt.1520, even if the Crown had made an application to usethe similar fact evidence for further issues “it is doubtful that it would have altered the defence strategy in any meaningful way”.However, the Crown has not made such an application in this case and has thereby not asked the defence to provide examples ofprejudice that would make the trial unfair. This is not a case like in H(DA), where the accused had been charged with eleven sexualoffences and the defence denied that the incidents had occurred and relied on the defence of innocent association.

During the voir direrelating to the admissibility of the similar fact evidence, the trial judge admitted the similar fact evidence on the issue of innocentassociation but later, in his final decision, used the similar fact evidence on the issue of credibility. The Court of Appeal upheld the trialdecision and stated at para 33: The trial judge's concern with the defence of innocent association arose on the voir dire, before the appellant's defence was before thecourt, but he repeated it in his reasons for judgment after it became clear that the primary defence was denial.

Innocent associationplayed a small role in the defence, but a role nevertheless. If the trial judge erred, and in my view he did not, I would follow thereasoning of McLachlin J. and consider the error immaterial. When an erroneous reference is made to a category when similar factevidence is admitted on the issue of credibility, there is no difference in principle between referring to the category of identification andthe category of innocent association. The trial judge clearly appreciated the importance of the similar fact evidence to the issue ofcredibility.

However, in the case at bar, the Crown does not argue that the similar fact evidence should be admitted for other issues besides accidentor mistake and has continued to maintain that position and has in fact recently reiterated that position. [53] In this case, the Crown initially sought to have similar fact evidence admitted for other purposes, including proving the actusreus and the credibility of the complainants, but then adopted a firm position that circumscribed the use of the similar fact evidence toonly one relating to mens rea.

The Crown may have succeeded or failed had they adopted their initial position, but the Crown was clearthat they did not want this Court to rule with respect to its use for proving the actus reus or credibility of the complainants.

Considering,the position taken and maintained by the Crown about the purpose for which the similar fact evidence is proffered, the presumption ofinadmissibility of similar fact evidence, the scope of my ruling as well as the fact that the Accused did not have to respond to the use ofevidence for purposes other than with respect to accident and mistake because of the Crown’s position, I will only use it for the statedpurpose.

The similar fact evidence across counts will not be used for assessing the evidence in relation to proving the actus reus asrelated to the credibility of complainants which may have been admitted had an application been made, but this is not for me to decide inthis case.

In this case, the Crown maintained its position to use the evidence for a limited purpose – akin to an undertaking - and it wouldnot be fair to the accused to broaden that use: R v MRS, 2020 ONCA 667 at para 66; R v (TB), 2003 CarswellOnt 1520 at para 10 (CA). [54] A court can only admit similar fact evidence where the probative value of the evidence outweighs its prejudicial effect. Thisneeds to be done in light of the specific context of the purpose for which the evidence is proffered and inferences sought to be drawn ifadmitted: R v Handy, 2002 SCC 56 at paras 73, 82, 84-86 & 99.

During the voir dire, in this case, I considered whether the evidence ofthe cupping or grabbing of the genitals was admissible with respect to accident or mistake and ruled that it was. I should add that in thiscase, it is also admissible in the context of the Accused’s bare denial of some of the occurrences of touching. In H(DA), the Court statedat para. 48: The testimony of the complainants was sufficient, if believed, to prove the elements of each of the eight counts of which the appellantwas convicted.

The trial judge had to consider all of the evidence, including the appellant's denial and the other defence evidence, indetermining whether the Crown had proved each count beyond a reasonable doubt. There is nothing in the record to suggest that the trialjudge considered that the similar fact evidence established a propensity in the appellant to commit the serious offences described in thecounts under consideration.

Its relevance to credibility is not that the appellant is more likely to be untruthful because he treated hisyounger female relatives with consistent disrespect, but because he denied the occurrence of events that five other persons including thecomplainants said took place. [...] [55] Although I will not consider the similar fact evidence as it pertains to the Crown’s onus to prove the actus reus in each countand the credibility of the complainants, as mentioned above, I can consider the similar fact evidence with respect to the issues of mistakeand accident and how those issues effect the overall credibility of the accused, when assessing the first two steps of the W(

D) test. Consideration of Similar Fact Evidence [56] It is important to consider the similar fact evidence properly. Prior to the decision of Handy, there was some issue as towhether propensity evidence was ever admissible. However, in the Handy decision, Justice Binnie reaffirmed the previous case law andmade it clear that specific propensity evidence was admissible if the probative value of the evidence outweighed its prejudicial effect. Healso stated that evidence of general disposition or bad character would always be inadmissible.

However, Justice Binnie also stated thatsituation specific evidence of propensity may be admissible where its probative value outweighs its prejudicial effect: Handy at paras.65, 68, 71 and 72 [57] This proposition had been stated in the case of R v Batte (2000) (ON CA), 145 CCC (3d) 449 (CA), whereJustice Doherty stated at para. 106: My colleague has captured the crucial issue to be addressed when determining whether discreditable conduct evidence should beadmitted on the basis of propensity reasoning. Evidence which tends to show no more than a general disposition must be distinguished

from evidence which demonstrates a disposition to do the very thing alleged in the indictment. If the evidence of the discreditable conduct is such that it shows a strong disposition to do the very act alleged in the very circumstances alleged, then the evidence has a "real connection" to the very issue to be decided — did the accused commit the act:9 R. Delisle, "Similar Facts: Here We Go Again" (1999), 20 C.R. (5th) 38 at 41 .

The probative potential of propensity reasoning will be highest where the discreditable conduct is temporally connected to the allegations in the indictment and involves repeated acts of the same kind with the same complainant as those alleged in the indictment. [ 58 ] Similar fact evidence is an item of circumstantial evidence and the reasoning process for the use of such evidence is that where an individual performs a number of acts that are similar in nature there is an objective improbability that these similar acts occurred by coincidence.

The objective improbability of coincidence grows stronger the more similar the actions are to one another, the greater the number of such actions and the closer in time that the actions occurred. An accident or mistake can occur, but it becomes improbable that many or similar accidents or mistakes will continue to be made especially over a period of time.

That level of improbability and probative value of similar fact evidence will rise depending on the number of incidents and the similarity of the incidents. [ 59 ] When considering similar fact evidence the court’s reasoning process should never consider whether the accused is the sort of person who would commit the offences charged. The Court should not consider the character of the Accused. However, where the similar facts show a propensity to do the specific acts alleged, they must be considered in determining certain issues such as whether the Accused’s acts were a mistake or accident.

Similar fact evidence is circumstantial evidence that is not determinative, but can provide strength to already credible evidence. The Bare Denial [ 60 ] In this case, the Accused, testified in a very similar manner with respect to the 16 counts against him. He testified, with respect to the allegations that he had grazed or brushed the genitals of his clients with the back of his hand, his thumb, his forearm or his elbow, that if he had made such contact he was unaware of such contact.

With respect to the allegations that he grabbed or cupped or rubbed the genitals of his clients he testified that these actions did not occur. The only evidence that specifically contradicts the Accused denial is the evidence of the particular complainant. [ 61 ] When assessing the evidence of any witness a trier of fact will consider the plausibility of the evidence, whether the evidence is supported or contradicted, internally and externally consistent, ability to remember and not exaggerate nor minimise. These are some of the factors to consider in assessing a witness’s credibility.

A bare denial will, almost always, not be supported by other evidence. However, if an accused is innocent, and that is the presumption in a criminal trial, and they deny the allegations of the complainant, there is often no supporting evidence for the accused’s version of events. It is difficult to prove a negative and because of the presumption of innocence, an accused need not prove anything. In R v Veeken , 2020 BCCA 54 , the trial judge convicted the accused and stated that the reason that the accused’s denial did not raise a reasonable doubt was because there was an absence of supporting evidence.

The Court of Appeal reversed the decision and stated at para 16: In my view, these paragraphs support the appellant's submission that his evidence was rejected and found not to raise a reasonable doubt because it was not confirmed by any other reliable evidence. Beyond the obvious challenge of requiring the appellant to adduce evidence supporting his denial — in effect, to corroborate a negative — the trial judge's approach had the effect of erroneously shifting the burden of proof. [ 62 ] Detail is another factor that the courts will consider in their assessment of credibility.

However, where an accused makes a bare denial that denial will have little detail. In R v DEP , 1991 CarswellOnt 7957 (Ct Just (Gen Div)) stated at para 19: This case, as is so usual in sexual assault cases, depends entirely on the credibility of the accuser and the accused. S. N. supplies detail, but the presence (or absence) of detail is not conclusive in the fact finding process. The accuser can always supply detail, true or not. The accused is, as usual, left with denial. Sometimes pejoratively characterized as "bare" denial or "mere" denial.

An accused can hardly supply details of events whose very existence he denies. [ 63 ] In R v Tucker , 1992 ABCA 24 the Court stated at para 3: The learned trial judge compared the detail found in the complainants' evidence to the denial by the appellant. He said the appellant "merely came to the witness stand and said that he did not do it". If that were true, then in view of the six year interval between the time of the alleged offence and the trial, how else could the appellant have made his answer in defence?

Any attempt to embellish his denial with recollections of where he was or what he was doing on some particular evenings in the expanded time frame set out in the counts, alleging a six year old offence, would have reeked of reconstruction.

The danger in this case is that the approach of the learned trial judge to the evidence may well have inhibited him from objectively considering whether or not the evidence of the appellant, in all of the circumstances, would raise a reasonable doubt. […] [ 64 ] It is extremely important not to dismiss the bare denial of an accused because of lack of detail or lack of corroboration. However, contradictions, inconsistencies and improbabilities can cause a trier of fact to reject an accused’s bare denial.

In addition, where the Crown’s evidence with respect to a charge is so strong it can provide proof beyond a reasonable doubt of the offence, which can overcome the presumption of innocence and the plausible bare denial of the accused. In R v M(O) , 2014 ONCA 503 , the Court stated at para 45: The trial judge did not err by factoring the strength of the Crown's case into his credibility and reliability analyses and by relying on it as one basis for rejecting the appellant's denials of the alleged assaults.

This court has held that an accused's evidence may be rejected based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence of the prosecution's witnesses. In R. v. D. (J.J.R.) , at para. 53, Doherty J.A. said:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused's evidence. See also R v Vuradin, 2013 SCC 38, R v M(RE), 2008 SCC 51. [65] In this case the Accused had to refer to the treatment notes for the particular clients in an attempt to refresh his memoryregarding dates and the types of techniques he was using.

With respect to every count he testified that he was performing a full bodymassage with a hip flexor sequence. The hip flexor sequence allows the Accused to massage in areas close to his client’ genitals.However, according to the evidence of the expert Ms. Mwamburi, and agreed to by the Accused, the genitals should never be touched. Iwill review each of the counts against the Accused keeping in mind the principles relating to assessing credibility of a bare denial.

Assessing Testimony [66] Assessing a witnesses’ testimony will result in a judge considering whether a witness can properly interpret what they hadseen, heard or experienced, and whether they have a good memory and an ability to communicate their evidence. Some of the credibilityfactors include whether a witness is biased or has certain interests such as loyalty, fear, anger, or vengeance that may affect theirtestimony. The absence of embellishment is a factor to consider when determining the issue of credibility, but it does not enhancecredibility: see R v Alisaleh, 2020 ONCA 597.

The absence of evidence of a motive to fabricate, can also be a factor to consider,although a court must always remember there is no onus on the accused to prove the complainant had a motive to lie. Actual evidencethat proves that a complainant had no motive to lie, will be more probative of a complainant’s credibility. However, absence of a motiveto fabricate can be considered by a trier of fact as one factor, among many, in assessing credibility: see R. v Ignacio 2021 ONCA 69.

The demeanor of the witness can also assist in evaluating credibility, but numerous cases have stated that demeanor should not bedeterminative of credibility or be relied on too heavily. This is especially so with respect to evidence of an accused. [67] The plausibility of a witnesses’ testimony and its consistency with the preponderance of probabilities is an importantconsideration in assessing credibility. In other words, the question is whether the evidence makes sense: see Faryna v Chorny, (BC CA), [1952] 2 DLR 354 (BC CA).

Also of importance is whether a witness’ testimony is supported by other evidenceor testimony or whether it is contradicted by other evidence or testimony. In cases of sexual assault there is no need for corroborationwhich is important to note considering that sexual assaults often occur in private. However, corroboration will always enhancecredibility. This includes he internal consistency of a witnesses’ evidence and whether what they had said in court is contradicted byother statements that they have made.

Inconsistencies on minor or peripheral matters will have little effect on credibility or reliability, buta significant inconsistency can be extremely detrimental to the credibility and reliability of a witness. Lastly it is important to consider awitnesses’ balance. A witness who is evasive or will not admit or minimalizes obvious facts or exaggerates and will not acknowledgeweaknesses in their evidence does not have “balance”. Lack of balance will negatively affect credibility.

These are some of thecredibility factors a court may consider in assessing overall credibility. [68] It is clear from the case law that an assessment of credibility cannot include the use of myths and stereotypes regarding sexualassault victims.

The most common of the myths and stereotypes wrongly applied in sexual assault cases are with respect to evidence ofthe complainant’s attempt to resist the perpetrator of a sexual assault, whether a complainant reports the crime immediately to others orshortly after, or that the complainant will change their behaviour towards the perpetrator as a result of their victimization. A court shouldnot make assumptions about how a victim of sexual assault is supposed to react to the assault: see: R v Seaboyer, (SCC),[1991] 2 SCR 577, R v ADG, 2015 ABCA 470 149.

However, common sense should not be eliminated from the assessment of a witness’evidence and the assessment of credibility.

In R v Roth, 2020 BCCA 240, the Court stated at paras 130-131: However, this does not mean that the evidence surrounding the driver's attendance at the home, including the complainant's conductduring that interaction, was not open for consideration in the credibility assessment and the trial judge was obliged to steer away from it.The risk of myths and stereotypes distorting a judge's fact-finding or reasoning process does not prohibit use of a complainant's behaviourfor all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court).

Although a piece of evidencemay carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider inassessing the evidence as a whole, in the context of the case's particular "factual mosaic": R. v. D. (D.), 2000 SCC 43 (S.C.C.) at para.65; Kiss at paras. 101 — 102. In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not anyuse at all.

On this point, I agree with the comments of professor Lisa Dufraimont in "Myth, Inference and Evidence in Sexual Assault Trials",(2019) 44 Queen's L.J. 316 at 353: Criminal courts . . . carry the heavy responsibility of ensuring that every accused person has a fair trial. Subject to the rules of evidenceand the prohibition of particular inferences, this requires that the defence generally be permitted to bring forward all evidence that islogically relevant to the material issues.

Repudiating myths and stereotypes means rejecting certain discriminatory lines of reasoning, butit does not make whole categories of evidence irrelevant or inadmissible. Indeed, sweeping prohibitions that would rule out anyconsideration of particular forms of evidence are avoided as inconsistent with the accused's right to make full answer and defence andwith our overall approach to finding facts.

Outside the prohibited lines of reasoning identified as myths, relevance remains an elasticconcept that leaves a wide scope for reasoning from logic and human experience. [emphasis added in R v Roth] [69] In this case the behaviour of the complainants after the alleged offences and their thoughts and uncertainty regarding whetherthe alleged occurrences of touching were intentional, can be considered in the determination of credibility, always remembering that anassumption should not be made of how a sexual assault victim will react.

The importance of such evidence in the determination ofcredibility will vary depending on the different individual complainants and I will make those assessments in my review of each charge. [70] When assessing a witness’ credibility, a judge can accept some, none or all of the witness’ testimony. Acceptance oftestimony only means that a trier of fact will give the evidence some weight when assessing the issue in question. A judge need not

conclude that a witness is a liar in order to reject or place little weight on their testimony. [ 71 ] I will now determine whether the Crown has proven beyond a reasonable doubt each of the counts against Mr. Baltazar while taking into consideration the principles discussed above. I will begin with Count #11 and Count #10 as these were first reported to the police and began the investigation against Mr. Baltazar. I will assess the remaining counts as they appear on the indictment. Count #11 [ 72 ] Count #11 involved the complainant JP.

JP testified that the Accused massaged his left groin area and while this occurred the Accused inadvertently touched JP’s genital region over the towel that was covering his genitals with what he thought was likely the Accused’s elbow. JP recounted that he recalled the Accused tell him that if he felt uncomfortable at any time he should let the Accused know. JP further testified that the massage on the left side lasted approximately 5 to 10 minutes and then the Accused moved to JP’s right leg and groin.

While the Accused was massaging JP’s right side the towel covering his genitals was becoming more dislodged and the Accused asked if he could remove it as it was going to fall off anyway. JP indicated “sure”. JP testified that the Accused continued to massage him on the right side and was again brushing and rubbing his penis with his elbow or forearm. [ 73 ] JP then testified that he felt the Accused put his fingers on the foreskin of JP’s penis and pulled down two or three times.

In addition to pulling on his foreskin, JP stated that the Accused pulled down on his penis in a manner which he described as a “stroke”. After this stroke occurred, JP testified that the Accused said to him “this is a special treatment for you, we’re friends” or words to that effect. In addition, JP stated that the Accused said “it is a big one”. JP also testified that he thought that the brushing of his genitals could have been inadvertent, but the touching of his penis and foreskin was not and he stated to the Accused: “Whoa, whoa, I’m good need to move on”.

He testified that he did not want special treatment and was confused by what had occurred. JP then testified that the Accused moved from his groin area to the neck area. He estimated that the touching of his genitals occurred during the middle of the massage. He testified that he remained for the rest of the hour massage. JP further testified that after the massage, when he wa

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